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ADMINISTRATIVE ORDER NO. 289 -
SUSPENDING SUPERINTENDENT LEONORA O. BASALO OF THE DIVISION OF
DUMAGUETE CITY FOR ONE (1) YEAR
This refers to the motu proprio
administrative complaint, dated June 18, 1991, filed by the Secretary
of Education, Culture and Sports against Superintendent Leonora O.
Basalo for grave misconduct and conduct prejudicial to the best
interest of the service, allegedly committed as follows:
"That
on or around February 22, 1991, R and E Manufacturing delivered 1,200
pcs. of elementary school desks worth P435,000.00 to the Division of
Dumaguete City, in accordance with the Requisition and Issue Voucher
Unnumbered dated December 28, 1990, and despite noticeable defects in
quality standards of the desks delivered, which defects were confirmed
by a COA Inspection Report, you still accepted the same and effected
payment thereof, to the damage and prejudice of the government."
Antecedent facts show that Secretary Cariño constituted a committee composed of Attys. Marcelo M. Bacalso, Nuevas T. Montes and Generoso Capuyan to conduct a formal hearing on the complaint and submit their findings and recommendations thereon.
In her answer to the complaint, dated September 16, 1991, Supt. Basalo alleged among others that:
"1.
2.
During the formal hearing, several witnesses were presented for the complainant, including:
a)
b)
c)
d)
On the other hand, respondent Basalo averred that, contrary to Katada and Somido's allegations, the inspection report was already signed by them (Katada and Somido) when placed on her table. She also denied that she said she will take full responsibility. Respondent also presented Carmelita Tan Pastor as witness, who testified that Basalo never had the custody of checkbooks and that the check signed by Director Gomez was canceled because the bank did not honor Gomez's signature.
The chairman of the investigating panel found respondent guilty as charged and recommended her dismissal from the service; the two members found respondent guilty of simple misconduct and recommended 1-year suspension as penalty therefore.
In a letter of December 13, 1991; Secretary Cariño, finding respondent guilty as charged, recommended to me her dismissal from the service.
In reply to Secretary Cariño's recommendation, respondent's counsel alleged violation of due process for failure to comply with the Memorandum issued by then Executive Secretary Catalino Macaraig, dated August 17, 1990, and prayed that the recommendation of Secretary Cariño be denied, the findings of the investigating panel declared null and void and respondent be reinstated.
At the outset, it must be stressed that the findings of Secretary Cariño is only recommendatory in nature (Cuyegkeng vs. Cruz, 108 Phil. 1147), because the President had administrative disciplinary authority over respondent, who is a presidential appointee.
This brings to the fore the core issue of whether or not respondent is administratively liable for grave misconduct and conduct prejudicial to the service for having accepted the delivery of 1,200 pieces of elementary school desks and effected payment therefore, despite noticeable defects in their quality.
After going over the records of the case, I concur with the findings of the Department of Education, Culture and Sports (DECS), but differ as to the gravity of the offense committed and the penalty to be imposed.
It was established during the hearing that the delivery of and payment for the school desks were completed in February 1991, but the plans and specifications thereof were received only on June 11, 1991. Apparently, the recipient Division of Dumaguete City had no guidelines to use in the acceptance or non-acceptance of the desks and, for this, the DECS committed an error.
PBAC Chairman Somido and Supply Officer Katada submitted their inspection report to respondent Basalo to the effect that the desks were not smooth and unvarnished. But instead of taking guidance therefrom, respondent preferred to offer an excuse for the poor quality of the desks, that the price of P363.00 per unit is commensurate to its quality.
Respondent's actuations did not hew with the best interest of the service. While she showed unusual concern for the immediate payment of the desks, coinciding as it were with her flight to Manila and that of the Sales Manager of R and E Manufacturing, she casually brushed aside the finding of her technical men about the poor quality of the desks.
Prudence dictates that respondent should have reported to the DECS about the poor quality of the desks before even accepting their delivery, much less paying for them. That she is fully responsible for the acceptance of and payment for the questioned delivery of school desks is beyond doubt.
Anent the claim of violation of due process for failure to follow the Memorandum of August 17, 1990, issued by then Executive Secretary Macaraig, suffice to say that said memorandum was superseded by the Memorandum of August 7, 1991, issued by Executive Secretary Franklin M. Drilon, which changed the procedure in the investigation of administrative cases against presidential appointees in the DECS.
In the instant case, respondent cannot be said to have been denied due process. In her answer of September 16, 1991, respondent waived her right to a formal investigation, but still a formal hearing was conducted by the investigating panel wherein she participated.
Well-settled is the rule that procedural due process is simply an opportunity to be heard or, as applied to administrative proceedings, an opportunity to explain one's side, or an opportunity to seek a reconsideration of the action or ruling complained of. (Var-Orient Shipping Co. Inc. vs. Achacoso, No. L-81805, May 31, 1988, 161 SCRA 732). Where a party was given the opportunity to be heard, either through oral arguments or pleadings, there can be no denial of procedural due process. Due process is not semper et ubioue judicial process. (Yap Say vs. Intermediate Appellate Court, No. L-73451, March 28, 1988, 159 SCRA 325.)
I however disagree with Secretary Cariño's finding that respondent is guilty of grave misconduct and conduct prejudicial to the best interest of the service with a corresponding penalty of dismissal from the service.
I consider the offense committed as simple misconduct and conduct prejudicial to the best interest of the service which deserves the penalty of suspension for one (1) year.
WHEREFORE, respondent Superintendent Leonora O. Basalo is hereby found guilty of simple misconduct and conduct prejudicial to the best interest of the service. Accordingly, she is hereby meted the penalty of suspension from office for one (1) year without pay, effective upon notice hereof.
DONE in the City of Manila, this 4th day of June, in the year of Our Lord, nineteen hundred and ninety-two.
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