G.R. No. 158637             April 12, 2006

MARICALUM MINING CORPORATION, Petitioner, vs.ANTONIO DECORION, Respondent.

D E C I S I O N

TINGA, J.:

This Petition1 dated July 8, 2003 filed by Maricalum Mining Corporation (Maricalum Mining) assails the Decision2 of the Court of Appeals which upheld the labor arbiter’s finding that respondent, Antonio Decorion (Decorion), was constructively dismissed and therefore entitled to reinstatement and backwages.

There is no substantial dispute on the operative facts of this case.

Decorion was a regular employee of Maricalum Mining who started out as a Mill Mechanic assigned to the Concentrator Maintenance Department and was later promoted to Foreman I. On April 11, 1996, the Concentrator Maintenance Supervisor called a meeting which Decorion failed to attend as he was then supervising the workers under him. Because of his alleged insubordination for failure to attend the meeting, he was placed under preventive suspension on the same day. He was also not allowed to report for work the following day.

A month after or on May 12, 1996, Decorion was served a Notice of Infraction and Proposed Dismissal to enable him to present his side. On May 15, 1996, he submitted to the Personnel Department his written reply to the notice.

A grievance meeting was held upon Decorion’s request on June 5, 1996, during which he manifested that he failed to attend the meeting on April 11, 1996 because he was then still assigning work to his men. He maintained that he has not committed any offense and that his service record would show his efficiency.

On July 23, 1996, Decorion filed before the National Labor Relations Commission (NLRC) Regional Arbitration Branch VI of Bacolod City a complaint for illegal dismissal and payment of moral and exemplary damages and attorney’s fees.3

In the meantime, the matter of Decorion’s suspension and proposed dismissal was referred to Atty. Roman G. Pacia, Jr., Maricalum Mining’s Chief and Head of Legal and Industrial Relations, who issued a memorandum on August 13, 1996, recommending that Decorion’s indefinite suspension be made definite with a warning that a repetition of the same conduct would be punished with dismissal. Maricalum Mining’s Resident Manager issued a memorandum on August 28, 1996, placing Decorion under definite disciplinary suspension of six (6) months which would include the period of his preventive suspension which was made to take effect retroactively from April 11, 1996 to October 9, 1996.

On September 4, 1996, Decorion was served a memorandum informing him of his temporary lay-off due to Maricalum Mining’s temporary suspension of operations and shut

down of its mining operations for six (6) months, with the assurance that in the event of resumption of operations, he would be reinstated to his former position without loss of seniority rights.

Decorion, through counsel, wrote a letter to Maricalum Mining on October 8, 1996, requesting that he be reinstated to his former position. The request was denied with the explanation that priority for retention and inclusion in the skeleton force was given to employees who are efficient and whose services are necessary during the shutdown.

Conciliation proceedings having failed to amicably settle the case, the labor arbiter rendered a decision4 dated November 26, 1998, finding Decorion’s dismissal illegal and ordering his reinstatement with payment of backwages and attorney’s fees. According to the labor arbiter, Decorion’s failure to attend the meeting called by his supervisor did not justify his preventive suspension. Further, no preventive suspension should last longer than 30 days.

The NLRC, however, reversed the labor arbiter’s decision and dismissed Decorion’s complaint.5 The reversal was premised on the finding that the case was litigated solely on Decorion’s allegation that he was dismissed on April 11, 1996. However, during the grievance meeting held on June 5, 1996, Decorion left it up to management to decide his fate, indicating that as of that time, there was no decision to terminate his services yet. According to the NLRC, to consider the events that transpired after April 11, 1996 and make the same the basis for the finding of illegal dismissal would violate Maricalum Mining’s right to due process.

On petition for certiorari with the Court of Appeals, the decision of the labor arbiter was reinstated. The appellate court held that Decorion was placed under preventive suspension immediately after he failed to attend the meeting called by his supervisor on April 11, 1996. At the time he filed the complaint for illegal dismissal on July 23, 1996, he had already been under preventive suspension for more than 100 days in violation of Sec. 9, Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code (Implementing Rules) which provides that no preventive suspension shall last longer than 30 days.

The appellate court denied Maricalum Mining’s motion for reconsideration in its Resolution6 dated May 16, 2003.

In this petition, Maricalum Mining insists that Decorion was not dismissed but merely preventively suspended on April 11, 1996. Citing the case of Valdez v. NLRC,7 petitioner contends that constructive dismissal occurs only after the lapse of more than six (6) months from the time an employee is placed on a "floating status" as a result of temporary preventive suspension from employment. Thus, it goes on to argue, since Decorion was suspended for less than six (6) months, his suspension was legal.

Decorion filed a Comment8 dated December 5, 2003, maintaining that he was dismissed from employment on April 11, 1996 as he was then prevented from reporting for work. He avers that had the intention of Maricalum Mining been to merely suspend him, it could have manifested this intention by at least informing him of his suspension. As it happened, he was not served with any notice relative to why he was disallowed to report for work. The

grievance meeting conducted on June 5, 1996 was allegedly called only after he had repeatedly requested reconsideration of his dismissal.

Maricalum Mining filed a Reply9 dated April 22, 2004 in reiteration of its arguments.

We reject the petition.

Sections 8 and 9 of Rule XXIII, Book V of the Implementing Rules provide as follows:

Section 8. Preventive suspension. --- The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or his co-workers.

Section 9. Period of Suspension --- No preventive suspension shall last longer than thirty (30) days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss the worker. [Emphasis supplied.]

The Rules are explicit that preventive suspension is justified where the employee’s continued employment poses a serious and imminent threat to the life or property of the employer or of the employee’s co-workers. Without this kind of threat, preventive suspension is not proper.

In this case, Decorion was suspended only because he failed to attend a meeting called by his supervisor. There is no evidence to indicate that his failure to attend the meeting prejudiced his employer or that his presence in the company’s premises posed a serious threat to his employer and co-workers. The preventive suspension was clearly unjustified.10

What is more, Decorion’s suspension persisted beyond the 30-day period allowed by the Implementing Rules. In Premiere Development Bank v. NLRC,11 private respondent’s suspension lasted for more than 30 days counted from the time she was placed on preventive suspension on March 13, 1986 up to the last day of investigation on April 23, 1986. The Court ruled that preventive suspension which lasts beyond the maximum period allowed by the Implementing Rules amounts to constructive dismissal.

Similarly, from the time Decorion was placed under preventive suspension on April 11, 1996 up to the time a grievance meeting was conducted on June 5, 1996, 55 days had already passed. Another 48 days went by before he filed a complaint for illegal dismissal on July 23, 1996. Thus, at the time Decorion filed a complaint for illegal dismissal, he had already been suspended for a total of 103 days.

Maricalum Mining’s contention that there was as yet no illegal dismissal at the time of the filing of the complaint is evidently unmeritorious. Decorion’s preventive suspension had already ripened into constructive dismissal at that time. While actual dismissal and

constructive dismissal do take place in different fashion, the legal consequences they generate are identical.

Decorion’s employment may not have been actually terminated in the sense that he was not served walking papers but there is no doubt that he was constructively dismissed as he was

forced to quit because continued employment was rendered impossible, unreasonable or unlikely12 by Maricalum Mining’s act of preventing him from reporting for work. 1avvphil.net

Petitioner’s reliance on Valdez v. NLRC, supra, is misplaced. The legal basis of the ruling in that case is the principle underlying Article 286 of the Labor Code which provides that the bona fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months shall not terminate employment. In contrast, the instant case involves the preventive suspension of an employee not by reason of the suspension of the business operations of the employer but because of the employee’s failure to attend a meeting. The allowable period of suspension in such a case is only 30 days as provided by the Implementing Rules.

In sum, Maricalum Mining cannot feign denial of due process. Its theory is based entirely on its erroneous reading of Valdez v. NLRC. The fact is that Decorion’s preventive suspension was unwarranted and unjustified and lasted for more than the period allowed by law.

WHEREFORE, the instant petition is hereby DENIED. The challenged Decision and Resolution of the Court of Appeals respectively dated May 29, 2002 and May 16, 2003 are hereby AFFIRMED. Costs against petitioner.

SO ORDERED.

G.R. No. 114307 July 8, 1998

PHILIPPINE AIRLINES, INC., petitioner,

vs.

NATIONAL LABOR RELATIONS COMMISSION (2nd Division), LABOR ARBITER JOSE DE VERA, and EDILBERTO CASTRO, respondents.

R E S O L U T I O N

 

ROMERO, J.:

The central issue in the case at bar is whether or not an employee who has been preventively suspended beyond the maximum 30-day period is entitled to backwages and salary increases granted under the Collective Bargaining Agreement (CBA) during his period of suspension.

Private respondent Edilberto Castro was hired as manifesting clerk by petitioner Philippine Airlines Inc. (PAL) on July 18, 1977. It appears that on March 12, 1984, respondent, together with co-employee Arnaldo Olfindo, were apprehended by government authorities while about to board a flight en route to Hongkong in possession of P39,850.00 and P6,000.00 respectively, in violation of Central Bank (CB) Circular 265, as amended by CB Circular 383, 1 in relation to Section 34 of Republic Act 265, as amended.

When informed of the incident, PAL required respondent "to explain within 24 hours why he should not be charged administratively." 2 Upon failure of the latter to submit his explanation thereto, he was placed on preventive suspension effective March 27, 1984 for grave misconduct.

On May 28, 1984, an investigation was conducted wherein respondent admitted ownership of the confiscated sum of money but denying any knowledge of CB Circular 265. No further inquiry was conducted. On August 13, 1985, respondent, through the Philippine Airlines Employees Association (PALEA), sought not only the dismissal of his case but likewise prayed for his reinstatement, to which appeal, PAL failed to make a reply thereto. He reiterated the same appeal in his letter dated August 13, 1987.

On September 18, 1987 or three (3) years and six (6) months after his suspension, PAL issued a resolution finding respondent guilty of the offense charged but nonetheless reinstated the latter explaining that the period within which he was out of work shall serve as his penalty for suspension. The said resolution likewise required respondent to affix his signature therein to signify his full conformity to the action taken by PAL. Upon his reinstatement, respondent filed a claim against PAL for backwages and salary increases granted under the collective bargaining agreement (CBA) covering the period of his suspension which the latter, however, denied on account that under the existing CBA, "an employee under suspension is not entitled to the CBA salary increases granted during the period covered by his penalty." 3

On March 22, 1991, Labor Arbiter Jose G. de Vera rendered a decision, the decretal portion of which reads as follows:

WHEREFORE, all the foregoing premises being considered, judgment is hereby rendered limiting the suspension imposed upon the complainant to one (1) month, and the respondent to pay complainant his salaries, benefits, and other privileges from April 26, 1984 up to September 18, 1987 and to grant complainant his salary increases accruing during the period aforesaid. Further, the respondent is hereby ordered to pay complainant P50,000.00 in moral damages and P10,000.00 in exemplary damages.

SO ORDERED. 4

On appeal, this decision was affirmed by the National Labor Relations Commission (NLRC) in its decision dated December 29, 1993 with the deletion of the award of moral and exemplary damages. Hence, the instant petition.

We resolve to dismiss the petition.

Preventive suspension is a disciplinary measure for the protection of the company's property pending investigation of any alleged malfeasance or misfeasance committed by the employee. 5 The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers. 6

Sec. 3 and 4, Rule XIV of the Omnibus Rules Implementing the Labor Code provides:

Sec. 3. Preventive suspension. — The employer can place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers.

Sec. 4. — Period of suspension. — No preventive suspension shall last longer than 30 days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the workers. In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss the worker. (Emphasis supplied).

It is undisputed that the period of suspension of respondent lasted for three (3) years and six (6) months. PAL, therefore, committed a serious transgression when it manifestly delayed the determination of respondent's culpability in the offense charged. PAL stated lamely in its petition that "due to numerous administrative cases pending at that time, the Committee inadvertently failed to submit its recommendation to (the) management." 7 This is specious reasoning. The rules clearly provide that a preventive suspension shall not exceed a maximum period of 30 days, after which period, the employee must be reinstated to his former position. If the suspension is otherwise extended, the employee shall be entitled to his salaries and other benefits that may accrue to him during the period of such suspension. The provisions of the rules are explicit and direct; hence, there is no reason to further elaborate on the same.

PAL faults the Labor Arbiter and the NLRC for allegedly equating preventive suspension as remedial measure with suspension as penalty for administrative offenses. The argument though cogent is, however, inaccurate. A distinction between the two measures was clearly elucidated by the Court in the case of Beja Sr. v. CA, 8 thus:

Imposed during the pendency of an administrative investigation, preventive suspension is not a penalty in itself. It is merely a measure of precaution so that the employee who is charged may be separated, for obvious reasons, from the scene of his alleged misfeasance while the same is being investigated. While the former may be imposed on a respondent during the investigation of the charges against him, the latter is the penalty which may only be meted upon him at the termination of the investigation or the final disposition of the case.

A cursory reading of the records reveals no reason to ascribe grave abuse of discretion against the NLRC. Simply put, its decision was grounded upon petitioner's manifest indifference to the plight of its suspended employee and its consequent violation of the Implementing Rules of the Labor Code. As correctly ruled by the NLRC:

In fact, the long period of complainant's preventive suspension could even be considered constructive dismissal because were it not his letter dated September 12, 1985 and followed by another on September 18, 1987 demanding his reinstatement, respondent by its inaction appears to have no plan to employ him back to work. The manifest inaction of respondent over the pendency of the administrative charge is indeed violative of complainant's security of tenure because without any justifiable cause and due process complainant's employment would have gone into oblivion. 9 (Emphasis supplied)

PAL contends that when respondent consented to the resolution that the entire period of suspension shall constitute his penalty for the offense charged, the latter is thereby estopped to question the validity of said suspension. We concur with the labor arbiter when be ruled that the ensuing conformity by respondent does not cure petitioner's blatant violation of the law, and the same is therefore null and void. Thus, "to uphold the validity of the subsequent agreement between complainant and respondent regarding the imposition of the suspension would be repulsive to the avowed policy of the State enshrined not only in the Constitution but also in the Labor Code." 10

In fine, we do not question the right of the petitioner to discipline its erring employees and to impose reasonable penalties pursuant to law and company rules and regulations. "Having this right, however, should not be confused with the manner in which that right must be exercised." 11 Thus, the exercise by an employer of its rights to regulate all aspects of employment must be in keeping with good faith and not be used as a pretext for defeating the rights of employees under the laws and applicable contracts. 12 Petitioner utterly failed in this respect.

WHEREFORE, premises considered, the petition is DISMISSED for lack of merit and the assailed decision is AFFIRMED. No costs.

SO ORDERED.

G.R. No. 110590 May 10, 1995

ZORAYDA AMELIA C. ALONZO, in her capacity as Chief Executive Officer of HOME DEVELOPMENT MUTUAL FUND, petitioner, vs.HON. IGNACIO M. CAPULONG, Presiding Judge of the Regional Trial Court, National Capital Judicial Region, Branch 143, Makati, Metro Manila and JULIET L. FAJARDO, respondents.

 

MENDOZA, J.:

This is a petition for certiorari to set aside the order dated March 31, 1993 of respondent judge Ignacio Capulong, which granted a writ of preliminary injunction enjoining petitioner from preventively suspending private respondent Juliet Fajardo as manager of the Administrative Services Department of the Home Development Mutual Fund.

The facts of the case are as follows:

Private respondent Juliet Fajardo is, as already stated, manager of the Administrative Services Department of the Home Development Mutual Fund, otherwise known as the Pag-ibig Fund Foundation.

On December 17, 1992 Celeste G. Al-Jawazneh, who had been supplying office uniforms and providing transportation service to Pag-ibig Fund employees, wrote a letter to the Chief Executive Officer, herein petitioner Zorayda Alonzo, complaining against private respondent. The letter reads:

Ms. Zorayda Amelia C. AlonzoChief Executive OfficerHome Development Mutual FundAyala Avenue, Makati Metro Manila

Dear Ms. Alonzo:

As this year approaches its end, we take this opportunity to thank you for giving us the opportunity to serve your good office in the area of transport services.

Our initial year of operations with Pag-ibig had indeed been blessed with the minimum of hassles. We are encouraged by the warmth of your staff, whom we shuttle through their various daily assignments. Ironically, the greatest disappointment does not lie in the entanglement of these activities. Rather, it is in the very oppressive treatment that we receive from the GSD Head - Ms. Juliet Fajardo.

Ms. Fajardo has been our zealous guide in the assumption of our duties during our first months - to the point of carrying on a cordial relationship outside official business. However, the first month saw her making a "loan", followed by several more "loans" thereafter. By mid year and until September, we had decided to discontinue this apparent opportunism - an action which we had bravely dared to take. As expected, the proceeding months saw Ms. Fajardo's volatile temperament turned towards the attempt to discredit our small but honest business. Often, we had thought of approaching the authority. Our knowledge of her apparent impulsive wrath and distinct vulgarity instinctively taught us to seek the personal safety of our family first.

We are greatly disappointed and disturbed that Ms. Fajardo is a part of the HDMF (together with Mr. Ernie Dy whom she has already

brainwashed) panel for the bidding of next years transportation services at the DBM. In their terms and conditions, the Reservation Clause states that HDMF-DBM-PS reserves the right to reject any or all bids . . ." Needless to say, the mere presence of Ms. Fajardo and Mr. Dy, whom we know have already made some derogatory remarks about us to the DBM personnel, constitutes a great bias against our bid. May we therefore request that a replacement be made in the interest of fairness which we are all willing to abide with.

The bidding takes place tomorrow, Ms. Alonzo. We rely on your good judgment to rectify this impropriety.

Thank you.

 

Sincerely,

(Sgd) Celeste G. Al-Jawaznehcc: Ombudsman Manager - NEW AMANAHCOA TRANSPORT SERVICES

Acting on the complaint, petitioner directed the legal department of the Pag-ibig Fund to investigate the allegations of Al-Jawazneh. The legal department found prima facie case against private respondent and recommended that the latter be preventively suspended pending formal investigation of the administrative complaint.

On December 28, 1992, a formal charge was filed against private respondent for dishonesty, misconduct, disgraceful and immoral conduct, contracting of loans of money or other property from persons with whom the office of the employee concerned had business relations, and conduct prejudicial to the best interest of the service, for having committed the following acts:

1. For having used the influence of your office as ASD Manager to borrow from Ms. Celeste G. Al-Jawazneh, a contractor of the HDMF for employee uniform, on the following occasions:

(a) December 12, 1991 — P5,000.00

(b) January 9, 1992 — 15,000.00

(c) Sometime between February

& March of 1992 — 20,000.00

(d) on June 3 or 4, 1992 — 5,000.00

(e) on August 18, 1992 — 20,000.00

for a total of P65,000.00 the entire amount of which remain unpaid up to this time despite demand for payment;

2. For having used the influence of your office as ASD Manager by offering and securing the professional services of Atty. Emil Llanes allegedly your intimate friend, in the amount of P2,000.00 permonth as retainer's fee for and in consideration of a promise to award the HDMF transportation contract to New Amanah Transport managed by said Celeste G. Al-Jawazneh and owned by her sister, Ms. Ma Guia San Jose;

3. The amount of P2,000.00 per month was collected by you on a monthly basis until sometime April of 1992 when a vehicular accident occurred involving one of the service vehicles of Amanah;

Private respondent was required to answer the charges and indicate whether she desired to have a formal investigation. Meanwhile, she was placed under preventive suspension for 90 days effective December 29, 1992, pursuant to §41 of P.D. No. 807 (Civil Service Law). The formal charge and the order of preventive suspension were served on her on the same day.

Private respondent filed a petition for certiorari and prohibition in the Regional Trial Court of Makati on January 6, 1993, assailing the order of preventive suspension issued against her. The case was docketed as Sp. Civil Action No. 93-033 and raffled to Branch 134 of the court. Private respondent complained that the order of preventive suspension was issued without giving her the right to be heard.

On January 7, 1992, the respondent judge issued a temporary restraining order enjoining petitioner from "executing and/or enforcing the order of preventive suspension." This was followed by the questioned order of March 31, 1993 granting injunction. Petitioner moved for a reconsideration of the order but respondent judge denied her motion in an order dated May 14,·1993. Hence, this petition.

Without necessarily giving due course to the petition, we required private respondent to comment and issued a temporary restraining order enjoining in the meantime respondent Judge Ignacio Capulong from further proceeding with Civil Case No. 93-033.

Petitioner contends that respondent judge committed a grave abuse of his discretion in taking cognizance of the case and stopping the preventive suspension of private respondent whom he ordered to be allowed to continue in office. She contends that the investigation being conducted by her office was purely an administrative one and that private respondent failed to exhaust administrative remedies by appealing to the Civil Service Commission.

We find the petition impressed with merit.

The order of preventive suspension was issued upon recommendation of the legal department of the Pag-ibig Fund which found prima facie case against private respondent. It

was issued as a preliminary step to the investigation of charges against private respondent, pursuant to Chapter 7, Title 1, Book V of the Administrative Code of 1987, which provides in pertinent part as follows:

§47. Disciplinary Jurisdiction. —

. . . .

(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. . . .

§51. Preventive Suspension. — The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.

As Chief Executive Officer of the Home Development Mutual Fund, petitioner is the proper disciplining authority within the meaning of §51 above. Indeed her power to order the preventive suspension of any employee under her is not denied by private respondent. What private respondent contends is that she was suspended on the basis of an unverified letter and without first giving her the right to be heard in her defense.

This claim is without any basis. It is true that the letter-complaint of December 17, 1992 of Celeste G. Al-Jawazneh was not sworn to, but it was supported by her affidavit and by the sworn statements of several witnesses. Private respondent was required to answer the charges against her and inform the Office whether she wanted a formal investigation to be held. But she did not do so. Instead she brought the action below. She cannot therefore complain of lack of due process of law.

Private respondent argues that a hearing should have been held before she was suspended. Indeed the respondent court restrained enforcement of the order of preventive suspension on the basis of its finding that private respondent had not been heard before she was suspended. The respondent court found:

To controvert petitioner's claims, respondent presented a number of witnesses, the most relevant of whom is Mr. Raul Rimando. Rimando, while claiming that he was the investigator tasked by his office to investigate the accusations of one Celeste Al-Jawazneh against herein petitioner, admitted in his open court testimony that he did not bother to get the side or comment of the petitioner regarding such accusations, neither did he confront the petitioner with the alleged accusations of said Al-Jawazneh. Rimando likewise admitted that all he did in the course of his so-called investigation was to collate the

statements of Al-Jawazneh and her witnesses and submitted the same to the Chief, Legal who thereupon recommended the placing under preventive suspension of petitioner.

The movant/petitioner having shown that the invasion of the right to be protected is material and substantial; that her right is clear and unmistakable; that there is an urgent necessity for the writ to prevent serious damage (Dionisio vs. Ortiz, 204 SCRA 742); and in order to preserve the status quo until the merits of the case can be finally determined (Avila vs. Tapucar, 201 SCRA 148).

But prior notice and hearing was not required. It is now settled that the preventive suspension of a civil service employee or officer can be ordered even without a hearing because such suspension is not a penalty but only a preliminary step in an administrative investigation. 1 The purpose is to prevent the accused from using his position or office to influence prospective witnesses or tamper with the records which may be vital in the prosecution of the case against him. 2 In this case, private respondent is manager of the Administrative Services Department. She is in a position to influence employees under her or otherwise impede the investigation. Respondent court's order that there must be a hearing before preventive suspension may be imposed is thus a virtual disregard of the settled rule and for this reason constitutes a grave abuse of its discretion.

WHEREFORE, the petition for certiorari is GRANTED; the writ of preliminary injunction dated April 1, 1993 is ANNULLED and SET ASIDE; and Special Civil Action No. 93-033 of the respondent court is DISMISSED.

SO ORDERED.

G.R. No. 97149 March 31, 1992

FIDENCIO Y. BEJA, SR., petitioner, vs.COURT OF APPEALS, HONORABLE REINERIO O. REYES, in his capacity as Secretary of the Department of Transportation and Communications; COMMODORE ROGELIO A. DAYAN, in his capacity as General Manager of the Philippine Ports Authority; DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, ADMINISTRATIVE ACTION BOARD; and JUSTICE ONOFRE A. VILLALUZ, in his capacity as Chairman of the Administrative Action Board, DOTC, respondents.

 

ROMERO, J.:

The instant petition for certiorari questions the jurisdiction of the Secretary of the Department of Transportation and Communications (DOTC) and/or its Administrative Action Board (AAB) over administrative cases involving personnel below the rank of Assistant General Manager of the Philippine Ports Authority (PPA), an agency attached to the said Department.

Petitioner Fidencio Y. Beja, Sr. 1 was first employed by the PPA as arrastre supervisor in 1975. He became Assistant Port Operations Officer in 1976 and Port Operations Officer in 1977. In February 1988, as a result of the reorganization of the PPA, he was appointed Terminal Supervisor.

On October 21, 1988, the PPA General Manager, Rogelio A. Dayan, filed Administrative Case No. 11-04-88 against petitioner Beja and Hernando G. Villaluz for grave dishonesty, grave misconduct, willful violation of reasonable office rules and regulations and conduct prejudicial to the best interest of the service. Beja and Villaluz allegedly erroneously assessed storage fees resulting in the loss of P38,150.77 on the part of the PPA. Consequently, they were preventively suspended for the charges. After a preliminary investigation conducted by the district attorney for Region X, Administrative Case No. 11-04-88 was "considered closed for lack of merit."

On December 13, 1988, another charge sheet, docketed as Administrative Case No. 12-01-88, was filed against Beja by the PPA General Manager also for dishonesty, grave misconduct, violation of reasonable office rules and regulations, conduct prejudicial to the best interest of the service and for being notoriously undesirable. The charge consisted of six (6) different specifications of administrative offenses including fraud against the PPA in the total amount of P218,000.00. Beja was also placed under preventive suspension pursuant to Sec. 41 of P.D. No. 807.

The case was redocketed as Administrative Case No. PPA-AAB-1-049-89 and thereafter, the PPA general manager indorsed it to the AAB for "appropriate action." At the scheduled hearing, Beja asked for continuance on the ground that he needed time to study the charges against him. The AAB proceeded to hear the case and gave Beja an opportunity to present evidence. However, on February 20, 1989, Beja filed a petition for certiorari with preliminary injunction before the Regional Trial Court of Misamis Oriental. 2 Two days later, he filed with the AAB a manifestation and motion to suspend the hearing of Administrative Case No. PPA-AAB-1-049-89 on account of the pendency of the certiorari proceeding before the court. AAB denied the motion and continued with the hearing of the administrative case.

Thereafter, Beja moved for the dismissal of the certiorari case below and proceeded to file before this Court a petition for certiorari with preliminary injunction and/or temporary restraining order. The case was docketed as G.R. No. 87352 captioned "Fidencio Y. Beja v. Hon. Reinerio 0. Reyes, etc., et al." In the en banc resolution of March 30, 1989, this Court referred the case to the Court of Appeals for "appropriate action." 3 G.R. No. 87352 was docketed in the Court of Appeals as CA-G.R. SP No. 17270.

Meanwhile, a decision was rendered by the AAB in Administrative Case No. PPA-AAB-049-89. Its dispositive portion reads:

WHEREFORE, judgment is hereby rendered, adjudging the following, namely:

a) That respondents Geronimo Beja, Jr. and Hernando Villaluz are exonerated from the charge against them;

b) That respondent Fidencio Y. Beja be dismissed from the service;

c) That his leave credits and retirement benefits are declared forfeited;

d) That he be disqualified from re-employment in the government service;

e) That his eligibility is recommended to be cancelled.

Pasig, Metro Manila, February 28, 1989.

On December 10, 1990, after appropriate proceedings, the Court of Appeals also rendered a decision 4 in CA-G.R. SP No. 17270 dismissing the petition for certiorari for lack of merit. Hence, Beja elevated the case back to this Court through an "appeal by certiorari with preliminary injunction and/or temporary restraining order."

We find the pleadings filed in this case to be sufficient bases for arriving at a decision and hence, the filing of memoranda has been dispensed with.

In his petition, Beja assails the Court of Appeals for having "decided questions of substance in a way probably not in accord with law or with the applicable decisions" of this Court. 5 Specifically, Beja contends that the Court of Appeals failed to declare that: (a) he was denied due process; (b) the PPA general manager has no power to issue a preventive suspension order without the necessary approval of the PPA board of directors; (c) the PPA general manager has no power to refer the administrative case filed against him to the DOTC-AAB, and (d) the DOTC Secretary, the Chairman of the DOTC-AAB and DOTC-AAB itself as an adjudicatory body, have no jurisdiction to try the administrative case against him. Simply put, Beja challenges the legality of the preventive suspension and the jurisdiction of the DOTC Secretary and/or the AAB to initiate and hear administrative cases against PPA personnel below the rank of Assistant General Manager.

Petitioner anchors his contention that the PPA general manager cannot subject him to a preventive suspension on the following provision of Sec. 8, Art. V of Presidential Decree No. 857 reorganizing the PPA:

(d) the General Manager shall, subject to the approval of the Board, appoint and remove personnel below the rank of Assistant General Manager. (Emphasis supplied.)

Petitioner contends that under this provision, the PPA Board of Directors and not the PPA General Manager is the "proper disciplining authority. 6

As correctly observed by the Solicitor General, the petitioner erroneously equates "preventive suspension" as a remedial measure with "suspension" as a penalty for administrative dereliction. The imposition of preventive suspension on a government employee charged with an administrative offense is subject to the following provision of the Civil Service Law, P.D. No. 807:

Sec. 41. Preventive Suspension. — The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.

Imposed during the pendency of an administrative investigation, preventive suspension is not a penalty in itself. It is merely a measure of precaution so that the employee who is charged may be separated, for obvious reasons, from the scene of his alleged misfeasance while the same is being investigated. 7 Thus, preventive suspension is distinct from the administrative penalty of removal from office such as the one mentioned in Sec. 8(d) of P.D. No 857. While the former may be imposed on a respondent during the investigation of the charges against him, the latter is the penalty which may only be meted upon him at the termination of the investigation or the final disposition of the case.

The PPA general manager is the disciplining authority who may, by himself and without the approval of the PPA Board of Directors, subject a respondent in an administrative case to preventive suspension. His disciplinary powers are sanctioned, not only by Sec. 8 of P.D. No. 857 aforequoted, but also by Sec. 37 of P.D. No. 807 granting heads of agencies the "jurisdiction to investigate and decide matters involving disciplinary actions against officers and employees" in the PPA.

Parenthetically, the period of preventive suspension is limited. It may be lifted even if the disciplining authority has not finally decided the administrative case provided the ninety-day period from the effectivity of the preventive suspension has been exhausted. The employee concerned may then be reinstated. 8 However, the said ninety-day period may be interrupted. Section 42 of P.D. No. 807 also mandates that any fault, negligence or petition of a suspended employee may not be considered in the computation of the said period. Thus, when a suspended employee obtains from a court of justice a restraining order or a preliminary injunction inhibiting proceedings in an administrative case, the lifespan of such court order should be excluded in the reckoning of the permissible period of the preventive suspension. 9

With respect to the issue of whether or not the DOTC Secretary and/or the AAB may initiate and hear administrative cases against PPA Personnel below the rank of Assistant General Manager, the Court qualifiedly rules in favor of petitioner.

The PPA was created through P.D. No. 505 dated July 11, 1974. Under that Law, the corporate powers of the PPA were vested in a governing Board of Directors known as the Philippine Port Authority Council. Sec. 5(i) of the same decree gave the Council the power "to appoint, discipline and remove, and determine the composition of the technical staff of the Authority and other personnel."

On December 23, 1975, P.D. No. 505 was substituted by P.D. No. 857, See. 4(a) thereof created the Philippine Ports Authority which would be "attached" to the then Department of Public Works, Transportation and Communication. When Executive Order No. 125 dated January 30, 1987 reorganizing the Ministry of Transportation and Communications was

issued, the PPA retained its "attached" status. 10 Even Executive Order No. 292 or the Administrative Code of 1987 classified the PPA as an agency "attached" to the Department of Transportation and Communications (DOTC). Sec. 24 of Book IV, Title XV, Chapter 6 of the same Code provides that the agencies attached to the DOTC "shall continue to operate and function in accordance with the respective charters or laws creating them, except when they conflict with this Code."

Attachment of an agency to a Department is one of the three administrative relationships mentioned in Book IV, Chapter 7 of the Administrative Code of 1987, the other two being supervision and control and administrative supervision. "Attachment" is defined in Sec. 38 thereof as follows:

(3) Attachment. — (a) This refers to the lateral relationship between the Department or its equivalent and the attached agency or corporation for purposes of policy and program coordination. The coordination shall be accomplished by having the department represented in the governing board of the attached agency or corporation, either as chairman or as a member, with or without voting rights, if this is permitted by the charter; having the attached corporation or agency comply with a system of periodic reporting which shall reflect the progress of programs and projects; and having the department or its equivalent provide general policies through its representative in the board, which shall serve as the framework for the internal policies of the attached corporation or agency;

(b) Matters of day-to-day administration or all those pertaining to internal operations shall he left to the discretion or judgment of the executive officer of the agency or corporation. In the event that the Secretary and the head of the board or the attached agency or corporation strongly disagree on the interpretation and application of policies, and the Secretary is unable to resolve the disagreement, he shall bring the matter to the President for resolution and direction;

(c) Government-owned or controlled corporations attached to a department shall submit to the Secretary concerned their audited financial statements within sixty (60) days after the close of the fiscal year; and

(d) Pending submission of the required financial statements, the corporation shall continue to operate on the basis of the preceding year's budget until the financial statements shall have been submitted. Should any government-owned or controlled corporation incur an operation deficit at the close of its fiscal year, it shall be subject to administrative supervision of the department; and the corporation's operating and capital budget shall be subject to the department's examination, review, modification and approval. (emphasis supplied.)

An attached agency has a larger measure of independence from the Department to which it is attached than one which is under departmental supervision and control or administrative supervision. This is borne out by the "lateral relationship" between the Department and the

attached agency. The attachment is merely for "policy and program coordination." With respect to administrative matters, the independence of an attached agency from Departmental control and supervision is further reinforced by the fact that even an agency under a Department's administrative supervision is free from Departmental interference with respect to appointments and other personnel actions "in accordance with the decentralization of personnel functions" under the Administrative Code of 1987. 11 Moreover, the Administrative Code explicitly provides that Chapter 8 of Book IV on supervision and control shall not apply to chartered institutions attached to a Department. 12

Hence, the inescapable conclusion is that with respect to the management of personnel, an attached agency is, to a certain extent, free from Departmental interference and control. This is more explicitly shown by P.D. No. 857 which provides:

Sec. 8. Management and Staff. — a) The President shall, upon the recommendation of the Board, appoint the General Manager and the Assistant General Managers.

(b) All other officials and employees of the Authority shall be selected and appointed on the basis of merit and fitness based on a comprehensive and progressive merit system to be established by the Authority immediately upon its organization and consistent with Civil Service rules and regulations. The recruitment, transfer, promotion, and dismissal of all personnel of the Authority, including temporary workers, shall be governed by such merit system.

(c) The General Manager shall, subject to the approval of the Board, determine the staffing pattern and the number of personnel of the Authority, define their duties and responsibilities, and fix their salaries and emoluments. For professional and technical positions, the General Manager shall recommend salaries and emoluments that are comparable to those of similar positions in other government-owned corporations, the provisions of existing rules and regulations on wage and position classification notwithstanding.

(d) The General Manager shall, subject to the approval by the Board, appoint and remove personnel below the rank of Assistant General Manager.

xxx xxx xxx

(emphasis supplied.)

Although the foregoing section does not expressly provide for a mechanism for an administrative investigation of personnel, by vesting the power to remove erring employees on the General Manager, with the approval of the PPA Board of Directors, the law impliedly grants said officials the power to investigate its personnel below the rank of Assistant Manager who may be charged with an administrative offense. During such investigation, the PPA General Manager, as earlier stated, may subject the employee concerned to preventive suspension. The investigation should be conducted in accordance with the procedure set out in Sec. 38 of P.D. No. 807. 13 Only after gathering sufficient facts may the

PPA General Manager impose the proper penalty in accordance with law. It is the latter action which requires the approval of the PPA Board of Directors. 14

From an adverse decision of the PPA General Manager and the Board of Directors, the employee concerned may elevate the matter to the Department Head or Secretary. Otherwise, he may appeal directly to the Civil Service Commission. The permissive recourse to the Department Secretary is sanctioned by the Civil Service Law (P.D. No. 807) under the following provisions:

Sec. 37. Disciplinary Jurisdiction. — (a) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department or agency or official or group of officials to conduct the investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken.

(b) The heads of departments, agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. The decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days' salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the department head.

xxx xxx xxx

(Emphasis supplied.)

It is, therefore, clear that the transmittal of the complaint by the PPA General Manager to the AAB was premature. The PPA General Manager should have first conducted an investigation, made the proper recommendation for the imposable penalty and sought its approval by the PPA Board of Directors. It was discretionary on the part of the herein petitioner to elevate the case to the then DOTC Secretary Reyes. Only then could the AAB take jurisdiction of the case.

The AAB, which was created during the tenure of Secretary Reyes under Office Order No. 88-318 dated July 1, 1988, was designed to act, decide and recommend to him "all cases of administrative malfeasance, irregularities, grafts and acts of corruption in the Department." Composed of a Chairman and two (2) members, the AAB came into being pursuant to Administrative Order No. 25 issued by the President on May 25, 1987. 15 Its special nature

as a quasi-judicial administrative body notwithstanding, the AAB is not exempt from the observance of due process in its proceedings. 16 We are not satisfied that it did so in this case the respondents protestation that petitioner waived his right to be heard notwithstanding. It should be observed that petitioner was precisely questioning the AAB's jurisdiction when it sought judicial recourse.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED insofar as it upholds the power of the PPA General Manager to subject petitioner to preventive suspension and REVERSED insofar as it validates the jurisdiction of the DOTC and/or the AAB to act on Administrative Case No. PPA-AAB-1-049-89 and rules that due process has been accorded the petitioner.

The AAB decision in said case is hereby declared NULL and VOID and the case in REMANDED to the PPA whose General Manager shall conduct with dispatch its reinvestigation.

The preventive suspension of petitioner shall continue unless after a determination of its duration, it is found that he had served the total of ninety (90) days in which case he shall be reinstated immediately.

SO ORDERED.

G.R. No. 182114               April 5, 2010

GENESIS TRANSPORT SERVICE, INC. and RELY L. JALBUNA, Petitioners, vs.UNYON NG MALAYANG MANGGAGAWA NG GENESIS TRANSPORT (UMMGT), and JUAN TAROY, Respondents.

D E C I S I O N

CARPIO MORALES, J.:

Respondent Juan Taroy was hired on February 2, 1992 by petitioner Genesis Transport Service, Inc. (Genesis Transport) as driver on commission basis at 9% of the gross revenue per trip.

On May 10, 2002, Taroy was, after due notice and hearing, terminated from employment after an accident on April 20, 2002 where he was deemed to have been driving recklessly.

Taroy thus filed on June 7, 2002 a complaint1 for illegal dismissal and payment of service incentive leave pay, claiming that he was singled out for termination because of his union activities, other drivers who had met accidents not having been dismissed from employment.

Taroy later amended2 his complaint to implead his herein co-respondent Unyon ng Malayang Manggagawa ng Genesis Transport (the union) as complainant and add as

grounds of his cause of action unfair labor practice (ULP), reimbursement of illegal deductions on tollgate fees, and payment of service incentive leave pay.

Respecting the claim for refund of illegal deductions, Taroy alleged that in 1997, petitioner started deducting from his weekly earnings an amount ranging from P160 to P900 representing toll fees, without his consent and written authorization as required under Article 113 of the Labor Code and contrary to company practice; and that deductions were also taken from the bus conductor’s earnings to thus result to double deduction.

Genesis Transport countered that Taroy committed several violations of company rules for which he was given warnings or disciplined accordingly; that those violations, the last of which was the April 20, 2002 incident, included poor driving skills, tardiness, gambling inside the premises, use of shabu, smoking while driving, insubordination and reckless driving;3 and that Taroy’s dismissal was on a valid cause and after affording him due process.

In support of its claim that Taroy was afforded due process, Genesis Transport cited his preventive suspension; the directive for him to explain in writing4 his involvement in the April 20, 2002 accident; and the conduct of a hearing during which the expert opinion of its Maintenance Department, as well as an independent entity – the Columbian Motors Corporation,5 was considered in the determination of whether the accident was due to his reckless driving or, as he contended, to faulty brakes.

Genesis Transport went on to claim that as the result of the investigation6 showed that the cause of the accident was Taroy’s reckless driving, and his immediate past infraction of company rules on January 25, 2001 – smoking inside the bus – already merited a final warning,7 it validly terminated8 his employment.

By Decision9 of June 30, 2004, the Labor Arbiter found that Genesis Transport discharged the burden of proof that Taroy’s dismissal was on a valid cause; that while Taroy’s past infractions can not be used against him, still, they showed habituality; and that Genesis Transport complied with the twin requirements of notice and hearing, hence, Taroy’s dismissal was effected with due process.

As to the charge of ULP, the Labor Arbiter ruled that the respondent union failed to prove that Taroy’s dismissal was due to his union membership and/or activities.

On the claim for service incentive leave pay, the Labor Arbiter ruled that Taroy was not entitled thereto since he was a field personnel paid on commission basis.

With respect to Taroy’s claim for refund, however, the Labor Arbiter ruled in his favor for if, as contended by Genesis Transport, tollgate fees form part of overhead expense, why were not expenses for fuel and maintenance also charged to overhead expense. The Labor Arbiter thus concluded that "it would appear that the tollgate fees are deducted from the gross revenues and not from the salaries of drivers and conductors, but certainly the deduction thereof diminishes the take home pay of the employees."

Thus, the Labor Arbiter disposed:

WHEREFORE, premises considered, judgment is hereby rendered dismissing instant complaint for illegal dismissal for lack of merit. However, respondents are hereby ordered to refund to complainant the underpayment/differential due him as a result of the deduction of the tollgate fees from the gross receipts. Actual computation shall be based on and limited to the evidence at hand, which is in the amount of P5,273.16. For having been compelled to litigate, respondents are hereby also ordered to pay complainant 10% attorney’s fees. (underscoring supplied)

Both parties appealed to the National Labor Relations Commission (NLRC), petitioners questioning the order for them to refund "underpayment" and pay attorney’s fees, and respondents questioning the Labor Arbiter’s failure to pass on the propriety of his preventive suspension, dismissal of his complaint for constructive dismissal and ULP, and failure to award him service incentive leave pay.

By Resolution of December 29, 2005, the NLRC affirmed the Labor Arbiter’s decision with modification. It deleted the award to Taroy of attorney’s fees. It brushed aside Taroy’s claim of having been illegally suspended, it having been raised for the first time on appeal.

The parties filed their respective motions for reconsideration which were denied.

On respondents’ appeal, the Court of Appeals, by the assailed Decision of August 24, 2007, partly granted the same, it ruling that petitioner Genesis Transport violated Taroy’s statutory right to due process when he was preventively suspended for more than thirty (30) days, in violation of the Implementing Rules and Regulations of the Labor Code.

The appellate court thus held Taroy to be entitled to nominal damages in the amount of P30,000. And it reinstated the Labor Arbiter’s order for petitioners to refund Taroy "the underpayment."

Their motion for reconsideration having been denied by Resolution of March 13, 2008, petitioners filed the present recourse.

On the issue of refund of "underpayment," petitioners aver that cases of similar import involving also the respondent union have been decided with finality in their favor by the NLRC, viz: UMMGT v. Genesis Transport Service, Inc. (NLRC RAB III Case No. 04-518-03) and Reyes v. Genesis Transport Service, Inc. (NLRC CA No. 04862-04); and Santos v. Genesis Transport Service, Inc. (NLRC CA No. 041869-04).

Petitioners thus pray that the Court accord respect to the rulings of the NLRC in the above-cited cases and apply the principle of res judicata vis-à-vis the present case.

On the appellate court’s award of nominal damages, petitioners reiterate that Taroy was not entitled thereto, his dismissal having been based on a valid cause, and he was accorded due process.

Further, petitioners note that the issue of preventive suspension, on which the appellate court based its ruling that it violated Taroy’s right to due process, was raised only on appeal to the NLRC, hence, it should not be considered.

Finally, petitioners assert that the delay in the service of the Notice of Dismissal (dated May 10, 2002, but received by Taroy only on June 4, 2002) was due to Taroy’s premeditated refusal to acknowledge receipt thereof.

The petition is partly meritorious.

Absent proof that the NLRC cases cited by petitioners have attained finality, the Court may not consider them to constitute res judicata on petitioners’ claim for refund of the "underpayment" due Taroy.

Neither may the Court take judicial notice of petitioners’ claim that the deduction of tollgate fees from the gross earnings of drivers is an accepted and long-standing practice in the transportation industry. Expertravel & Tours, Inc. v. Court of Appeals10 instructs:

Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable.

Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no constructive knowledge. (emphasis supplied)

None of the material requisites for the Court to take judicial notice of a particular matter was established by petitioners.

Albeit the amounts representing tollgate fees were deducted from gross revenues and not directly from Taroy’s commissions, the labor tribunal and the appellate court correctly held that the withholding of those amounts reduced the amount from which Taroy’s 9% commission would be computed. Such a computation not only marks a change in the method of payment of wages, resulting in a diminution of Taroy’s wages in violation of Article 113 vis-à-vis Article 100 of the Labor Code, as amended. It need not be underlined that without Taroy’s written consent or authorization, the deduction is considered illegal.

Besides, the invocation of the rule on "company practice" is generally used with respect to the grant of additional benefits to employees, not on issues involving diminution of benefits.

Respecting the issue of statutory due process, the Court holds that Taroy’s right thereto was not violated. Sections 8 and 9 of Rule XXIII, Book V of the Implementing Rules and Regulations of the Labor Code provide:

Section 8. Preventive suspension. – The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or his co-workers.

x x x x

Section 9. Period of Suspension – No preventive suspension shall last longer than thirty (30) days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss the worker. (emphasis supplied)

To the appellate court, Genesis Transport’s act of "placing Taroy under preventive suspension for more than thirty (30) days was a predetermined effort to dismiss [him] from employment, negating the argument that the delay in the service of the notice of dismissal was not an issue and that the same was allegedly due to Taroy’s inaction to receive the same." Hence, the appellate court concluded, while there was a just and valid cause for the termination of his services, his right to statutory due process was violated to entitle him to nominal damages, following Agabon v. NLRC.11

The propriety of Taroy’s preventive suspension was raised by respondents for the first time on appeal, however. The well-settled rule, which also applies in labor cases, is that issues not raised below cannot be raised for the first time on appeal. Points of law, theories, issues and arguments not brought to the attention of the lower court need not be, and ordinarily will not be, considered by the reviewing court, as they cannot be raised for the first time at that late stage. Basic considerations of due process impel the adoption of this rule.12

In any event, what the Rules require is that the employer act on the suspended worker’s status of employment within the 30-day period by concluding the investigation either by absolving him of the charges, or meting the corresponding penalty if liable, or ultimately dismissing him. If the suspension exceeds the 30-day period without any corresponding action on the part of the employer, the employer must reinstate the employee or extend the period of suspension, provided the employee’s wages and benefits are paid in the interim.

In the present case, petitioner company had until May 20, 2002 to act on Taroy’s case. It did by terminating him through a notice dated May 10, 2002, hence, the 30-day requirement was not violated even if the termination notice was received only on June 4, 2002, absent any showing that the delayed service of the notice on Taroy was attributable to Genesis Transport.

Taroy’s statutory due process not having been violated, he is not entitled to the award of nominal damages.

WHEREFORE, the challenged Court of Appeals’ Decision of August 24, 2007 and Resolution13 of March 13, 2008 are AFFIRMED, with the MODIFICATION that the award of nominal damages to respondent Juan Taroy is DELETED.

SO ORDERED.

G.R. No. 110503 August 4, 1994

ANTONIO M. BOLASTIG, petitioner, vs.HON. SANDIGANBAYAN (Third Division) and THE PEOPLE OF THE PHILIPPINES, respondents.

Panganiban, Benitez, Parlade, Africa & Barinaga Law Office (Pablaw) for petitioner.

 

MENDOZA, J.:

This is a petition for certiorari to set aside the resolution, dated March 18, 1993, of the Sandiganbayan, granting the motion of the Special Prosecution Officer to suspend the accused from office pendente lite and the resolution, dated March 29, 1993, denying reconsideration of the first resolution.

Petitioner Antonio M. Bolastig is governor of Samar. On August 31, 1989, an information was filed against him and two others for alleged overpricing of 100 reams of onion skin paper in violation of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019). The Information alleged:

That on or about June 24, 1986, in the Municipality of Catbalogan, Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused ANTONIO M. BOLASTIG, PEDRO ASON and PRUDENCIO MACABENTA, all public officers, duly appointed and qualified as such, being the OIC Governor, Provincial Treasurer and Property Officer respectively, all of the Province of Samar, and being members of Bids and Awards Committee responsible for the purchase of office supplies for the Provincial Government of Samar and while in the performance of their respective positions, confederating and mutually helping one another and through manifest partiality and evident bad faith, did then and there wilfully and unlawfully enter into a purchase contract with REYNALDO ESPARAGUERRA, a private citizen, for the purchase of certain office supplies, namely: one hundred (100) reams of Onion Skin size 11" x 17" at a unit price of Five Hundred Fifty pesos (P550.00) or a total price of Fifty-Five Thousand Pesos (P55,000.00), which contract was manifestly and grossly disadvantageous to the government as the prevailing unit price for said item was only Fifty-Five Pesos (P55.00) or a

total price of Five Thousand Five Hundred Pesos (P5,500.00), thereby causing undue injury to the government in the total amount of Forty-Nine Thousand Five Hundred Pesos (P49,500.00).

CONTRARY TO LAW.

Petitioner was arraigned on January 5, 1993, whereupon he entered a plea of "not guilty."

On January 25, 1993, Special Prosecution Officer III Wilfredo Orencia moved for petitioner's suspension, citing sec. 13 of Republic Act No. 3019 which provides in part:

Sec. 13. Suspension and loss of benefits. — Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property, whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office.

Petitioner opposed the motion, arguing inter alia that:

2. Upon a bare invocation of the foregoing provision, the prosecution would have this Honorable Court issue an Order suspending the accused, as if suspension of a public officer is a mindless and meaningless exercise, and is imposed without regard to the spirit and intent of the law upon which it is based.

3. Indeed, it cannot be simply assumed that laws are enacted and followed without a particular purpose to be served, especially when a mechanical application shall injure not only the public official concerned, but the entire electorate as well. 1

The Sandiganbayan rejected petitioner's argument and ordered the suspension of petitioner from office for a period of 90 days. It held that preventive suspension is mandatory under sec. 13, of Rep. Act No. 3019, pursuant to which all that is required is for the court to make a finding that the accused stands charged under a valid information "for any of the above-described crimes for the purpose of granting or denying the sought for suspension." 2

Implementation of the resolution was held in abeyance to allow petitioner to file a motion for reconsideration, which the Sandiganbayan, however, eventually denied on March 29, 1993.

Hence, this petition. It is contended that the Sandiganbayan committed a grave abuse of its discretion in issuing its resolution

(a) despite the failure of the prosecution to show any public interest to be served, or injury to be prevented, or any other compelling factual circumstance which justifies the preventive suspension of petitioner; and

(b) despite the injury not only upon petitioner but also upon the people of Samar whose political rights are trenched upon by the suspension for no valid reason of their duly elected Governor.

To the Solicitor General's contention that upon the filing of a valid information suspension pendente lite is mandatory as held in several decisions of this Court, 3 petitioner replies that, while the Sandiganbayan has the power to order preventive suspension, there is a "need [for the Sandiganbayan] to go further, beyond the filing of the information, to a determination of the necessity of the preventive suspension in accordance with the spirit and intent of the Anti-Graft Law." Petitioner explains:

In other words, when the Anti-Graft Law gave the courts the authority to order the preventive suspension of the accused, it never intended to impose a mindless and meaningless exercise. The exercise of such authority must always be within the confines of the legislative intent, for to go beyond it would be to exceed the bounds of the law. Preventive suspension should therefore be ordered only when the legislative purpose is achieved, that is, when "the suspension order . . . prevent(s) the accused from using his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him." Corollarily, when the legislative purpose is not achieved, preventive suspension is improper and should not be decreed." 4

The petitioner's contention has no merit. It is now settled that sec. 13 of Republic Act No. 3019 makes it mandatory for the Sandiganbayan to suspend any public officer against whom a valid information charging violation of that law, Book II, Title 7 of the Revised Penal Code, or any offense involving fraud upon government or public funds or property is filed. 5 The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office. The presumption is that unless the accused is suspended he may frustrate his prosecution or commit further acts of malfeasance or do both, in the same way that upon a finding that there is probable cause to believe that a crime has been committed and that the accused is probably guilty thereof, the law requires the judge to issue a warrant for the arrest of the accused. The law does not require the court to determine whether the accused is likely to escape or evade the jurisdiction of the court.

It is indeed true that in some of our decisions 6 the expression "the maximum period of ninety (90) days" is used. But that is only for the purpose of emphasizing that the preventive suspension therein involved, which were for more than ninety (90) days, were excessive and unreasonable. It is to be noted that the ninety-day period of preventive suspension is not found in sec. 13 of Republic Act No. 3019 but was adopted from sec. 42 of the Civil Service Decree (P.D. No. 807), 7 which is now sec. 52 of the Administrative Code of 1987. This latter provision states:

Sec. 52. Lifting of Preventive Suspension Pending Administrative Investigation. — When the administrative case against the officer or employee under preventive suspension is not finally decided by the

disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service: Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided.

The duration of preventive suspension is thus coeval with the period prescribed for deciding administrative disciplinary cases. If the case is decided before ninety days, then the suspension will last less than ninety days, but if the case is not decided within ninety days, then the preventive suspension must be up to ninety days only. Similarly, as applied to criminal prosecutions under Republic Act No. 3019, preventive suspension will last for less than ninety days only if the case is decided within that period; otherwise, it will continue for ninety days.

The duration of preventive suspension will, therefore, vary to the extent that it is contingent on the time it takes the court to decide the case but not on account of any discretion lodged in the court, taking into account the probability that the accused may use his office to hamper his prosecution.

Indeed, were the Sandiganbayan given the discretion to impose a shorter period of suspension, say, 80, 70 or 60 days, as petitioner asserts, it would lie in its power not to suspend the accused at all. That, of course, would be contrary to the command of sec. 13 of Republic Act No. 3019.

Our holding that, upon the filing of a valid information charging violation of Republic Act No. 3019, Book II, Title 7 of the Revised Penal Code, or fraud upon government or public property, it is the duty of the court to place the accused under preventive suspension disposes of petitioner's other contention that since the trial in the Sandiganbayan is now over with respect to the presentation of evidence for the prosecution there is no longer any danger that petitioner would intimidate prosecution's witnesses. The fact is that the possibility that the accused would intimidate witnesses or otherwise hamper his prosecution is just one of the grounds for preventive suspension. The other one is, as already stated, to prevent the accused from committing further acts of malfeasance while in office.

Finally, the fact that petitioner's preventive suspension may deprive the people of Samar of the services of an official elected by them, at least temporarily, is not a sufficient basis for reducing what is otherwise a mandatory period prescribed by law. The vice governor, who has likewise been elected by them, will act as governor. 8 Indeed, even the Constitution authorizes the suspension for not more than sixty days of members of Congress found guilty of disorderly behavior, 9 thus rejecting the view expressed in one case 10 that members of the legislature could not be suspended because in the case of suspension, unlike in the case of removal, the seat remains filled but the constituents are deprived of representation.

For the foregoing reasons, we hold that in ordering the preventive suspension of petitioner, the Sandiganbayan acted according to law.

WHEREFORE, the Petition for Certiorari is DISMISSED.

SO ORDERED.