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ADMINISTRATIVE ORDERS
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ADMINISTRATIVE ORDER NO. 238 -
ADMONISHING MACARIO A. ASISTIO, JR., KALOOKAN CITY MAYOR, WITH A STERN
WARNING THAT FUTURE MISCONDUCT IN OFFICE WILL BE DEALT WITH MORE
SEVERELY
This refers to the "COMPLAINT" filed by
Delfina A. Hernandez Santiago against Mayor Macario A. Asistio, Jr. of
Kalookan City for "violation of Presidential Decree No. 807, the Civil
Service Law and Rules, to wit (a) Art. IX, Sec. 36[b] [1] Dishonesty;
(b) Art. IX, Sec. 36[b] [2] Oppression; (c) Art. IX, Sec. 36[b] [5]
Disgraceful and Immoral Conduct."
Antecedent facts show that Delfina A.H. Santiago, former City Personnel
Officer of Kalookan City, went on a 20-day approved sick leave of
absence covering the period from January 25 to December 31, 1988.
On February 5, 1988, or upon assumption of office, respondent Mayor
Asistio issued a memorandum cancelling "all leaves of absences of city
officials and employees . . . effective immediately." In another
memorandum of even date, respondent Mayor informed complainant Santiago
of her detail with the Office of the Secretary to the Mayor. In
reaction, complainant Santiago wrote the respondent Mayor explaining
her incapacity to report for duty.
Through a letter dated April 21, 1988, complainant Santiago was given
by the Office of the City Legal Officer (CLO) another five days (5)
days reckoned from the receipt of the aforesaid letter to report for
work, "otherwise, the undersigned may be constrained to take drastic
action against you." On May 2, 1988, complainant Santiago requested for
ten (10) days within which to submit her answer.
On December 19, 1988, after an ex-parte investigation, the Office of
the CLO reached a resolution, pertinent portions of which are quoted
hereunder, recommending the dismissal of complainant Santiago, "the
instant case being the second infraction of the Civil Service Law by
Atty. Santiago," for insubordination and neglect of duty:
"3.
xxx
FINDINGS
.., memorandum dated February 5, 1988 issued by Hon. City Mayor,
Macario A. Asistio, Jr. . . . cancelled all leave of absences . . . .
Atty. Santiago was duly served with the said memo as appearing on the
said memo is her signature, an evidence of receipt thereof. Having
received the said memo Atty. Santiago was fully aware of the
cancellation of her leave of absence and therefore as a prudent
employee she should have observed the memorandum of the City Mayor by
way of reporting for work as called for. What happened instead was that
Atty. Santiago never showed-up, thereby neglecting her duty as Asst.
City Administrator and committed, in effect, insubordination.
What is nagging and aggravates
the predicament of Atty. Santiago is that the instant case is already
her second violation which places in the category of incorrigible
employees. The first is when she was charge of UNAUTHORIZED ABSENCES,
punished for said act and made to suffer the corresponding penalty
thereof."
Acting on the said resolution, respondent Mayor Asistio, in a memorandum dated May 18, 1989, dismissed complainant Santiago from the service.
On June 9, 1989, complainant Santiago filed a complaint before the Department of Local Government, now the Department of Interior and Local Government (DILG), docketed thereat as Administrative Case No. C-10403-89, against Mayor Macario A. Asistio, Jr., which complaint was later amended as to the subtitles appearing on pages 1 and 6 thereof. In this complaint Santiago charges:
"1.
2.
3.
4.
In view of the constitution of the Metro Manila Authority under Executive Order No. 392 dated January 9, 1990, and pursuant to the Memorandum of the Executive Secretary dated March 2, 1990, providing for the direct investigation of all administrative charges/complaints against elective officials of Metropolitan Manila by the Office of the President (proper), principally through the Presidential Management Staff (PMS), the case at bar was transferred to this Office for evaluation and investigation.
A memorandum of June 11, 1991 from the PMS contains the following pertinent facts and recommendation.
"8.
9.
10.
11.
The question of dishonesty, disgraceful and immoral conduct is hardly of relevance under the premises. This thus brings to the fore the core issue of whether or not respondent mayor is administratively liable for oppression for his action/s against the complainant.
Respondent Mayor through the City Legal Officer of Kalookan City, argued in his Memorandum dated January 21, 1991 that:
xxx
"The respondent referred to the
City Legal Office for investigation the matter of complainant's refusal
to report for work and her leave of absence for 240 days. The said
referral by respondent is equivalent to an administrative complaint
pursuant to law, specifically Par. [2] [d], Sec. 171 of the Local
Government Code (B.P. Blg. 337) which provides:
'[2]
xxx
[d]
Also quoted hereunder is a pertinent provision of the Civil Service Law on the matter:
'P.D.
807.
xxx
Sec. 37.
[b]
Under the aforequoted laws, the referral of the disciplining authority (Respondent Mayor) to the City Legal Officer for investigation has to be given due course. In this case, it was in fact treated as an administrative complaint so that it can not be argued that there was no administrative case filed against the complaint in this case.
xxx
After the City Legal Office
conducted an investigation of the administrative case against the
complaint wherein the latter failed and refused to participate, the
former decided the case on the basis of records and evidence available.. .;
This Office is not impressed with the respondent Mayor's posture in defense. Contrary to what he alleged, the referral to the City Legal Officer of the matter of complainant's refusal to report for work is not equivalent to an administrative complaint against complainant Santiago. The rule is elementary that, whether in criminal or administrative proceedings, one is entitled to be informed of the nature and cause of the charges against him or her. To properly initiate an administrative proceedings, the complaint shall be in writing, in clear, simple and concise language and in a systematic manner as to apprise the respondent of the nature of the charges against him/her, to enable him/her to prepare a defense (Sec. 4, Rule III, Civil Service Rules on Administrative Disciplinary Cases; Emphasis supplied).
Sec. 38 of Presidential Decree (P.D.) No. 807, otherwise known as the "Civil
Service Decree of the Philippines," provides that if a prima facie case
exists, the disciplining authority "shall notify the respondent in
writing of the charges against the latter, . . ., and the respondent
shall be allowed not less than seventy-two (72) hours after receipt of
the complaint to answer the charges in writing under oath, . . ., in
which he shall indicate whether or not he elects a formal investigation
if his answer is not considered satisfactory."
Records disclose that complaint Santiago was merely sent a letter on April 29, 1988 by the City Legal Officer informing her that "we are giving you another five (5) days from receipt hereof to report work, otherwise, the undersigned may be constrained to take drastic action against you." From said letter, the City Legal Officer proceeded with an ex parte investigation and then arrived at a resolution recommending complainant Santiago's dismissal from the government service. Whereupon, respondent Mayor adopted said resolution and summarily dismissed complainant Santiago.
The respondent Mayor cannot, on the basis of the aforesaid resolution, summarily dismiss complainant Santiago without violating Sec. 36 [a] of P.D. No. 807, as amended, which pertinently provides:
"Sec. 36.
The letter dated April 21, 1988 can hardly be considered an administrative complaint as it merely warned complainant Santiago that "drastic action" will taken on her continuos failure to report for duty. This warning does not amount, or as respondent put it, "equal" to an administrative complaint. Solely on the basis of that letter, one cannot legally commence administrative proceedings against complainant Santiago, much more summarily imposed upon her the penalty of dismissal from office, without violating the due process clause of the Constitution. Basically, due process, as it relates to personnel disciplinary action, would require that suspension or dismissal be for cause and comes only after notice and hearing (Bernas, The Constitution of the Republic of the Philippines, Vol. II, 1988 ed., p. 334). "While the law recognizes the right of the employer to dismiss employees in warranted case, the law frowns upon arbitrary and whimsical exercises when employees are not accorded due process" (Tan, Jr. v. NLRC, 182 SCRA 651). This Office believes that respondent Mayor should have given complainant Santiago the opportunity to explain her side of the controversy.
It may be mentioned that the records failed to show that complainant Santiago was duly notified of the "ex-parte investigation" conducted by the City Legal Officer. Thus, complainant Santiago averred: "(N)ot one among the abovementioned documents was a letter, a summons, a subpoena, a memo, or any sort of notice informing her that (1) an administrative case was filed against her or that (2) she was being summoned to an administrative investigation of any sort of case against her" (Complainant Santiago's Memorandum, January 21, 1991, at p. 5) The letter of April 21, 1988 of the City Legal Officer is not an adequate notice contemplated by law.
The due process requirement is not a mere formality that may be dispensed with at will. Its disregard is a matter of serious concern since it constitutes a safeguard of the highest order in response to a man's innate sense of justice.
Verily, it appears in the light of the above factual observations that complainant Santiago had been terminated without proper observance of due process of law. Resultantly respondent acted in the excessive use of authority amounting to "Oppression" (Philippine Law Dictionary, 1982 ed., at p. 430) in dismissing complainant Santiago without affording her due process.
WHEREFORE, Mayor Macario A. Asistio, Jr. of Kalookan City is hereby ADMONISHED for his acts of oppression in dismissing the herein complainant without due process of law, with a stern warning that future misconduct in office will be dealt with more severely.
DONE in the City of Manila, this 26th day of September in the year of Our Lord, nineteen hundred and ninety-one.
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