G.R. Nos.

165399 and 165475 May 30, 2011

THERON V. LACSON, Petitioner,

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. Nos. 165404 and 165489

JAIME R. MILLAN and BERNARDO T. VIRAY, Petitioners,

DECISION

MENDOZA, J.:

These are consolidated petitions for review on certiorari under Rule 45 seeking to set aside the June
8, 2004 Decision and the September 20, 2004 Resolution of the Court of Appeals (CA) in CA-G.R.
SP No. 78749 and CA-G.R. SP No.78290.1

The Facts

Petitioners Theron V. Lacson (Lacson), Jaime R. Millan (Millan) and Bernardo T. Viray (Viray) were
non-presidential appointees and career service officials of respondent Philippine Estates
Authority (PEA), holding the positions of Deputy General Manager for Finance, Legal and
Administration; Assistant General Manager; and Department General Manager, respectively.2

On October 3, 2002, Sulficio O. Tagud (Tagud) filed a complaint-affidavit with the Office of the
Ombudsman (Ombudsman) accusing petitioners Lacson, Millan and Viray for overpricing, by
600,000,000.00, the contract for the construction of the Central Boulevard Project (the Project),
otherwise known as the President Diosdado Macapagal Boulevard.3

Acting on the complaint, the Ombudsman proceeded with the investigation of both the criminal and
the administrative aspects of the case.4 The criminal case, docketed as OMB-C-C-02-0667-J and
entitled "Sulficio O. Tagud Jr., et al. v. Ernesto Villareal, et al.," charged petitioners for committing an
act in violation of Republic Act (R.A.) No. 7080. The administrative case, docketed as OMB-C-A-02-
0523-K, on the other hand, charged them with Dishonesty, Serious Misconduct and Acts Inimical to
the Interest of the Public Service in violation of Section 52A (1), (3) and (20) of the Uniform Rules on
Administrative Cases.5

Meanwhile, on October 14, 2002, the Presidential Anti-Graft Commission (PAGC) requested the
Ombudsman for authority to conduct administrative disciplinary proceedings against the petitioners
and other individuals involved in the Project.6

In its Letter-Reply dated October 17, 2002,7 the Ombudsman responded in the following manner:
This has reference to your letter dated 14 October 2002 requesting for authority to conduct
administrative disciplinary proceedings against the presidential appointees at the Public Estates
Authority (PEA) named respondents in the case involving the construction of the President Diosdado
Macapagal Boulevard (PDMB). It is our humble view that the authority is not necessary.

The Office takes the opportunity to confirm the fact that the case filed with this Office on 3 October
2002, involving the subject controversy, is criminal in nature. It now bears the docket number OMB-
C-C-02-0667-J, entitled "Sulficio Tagud, Jr., et al. versus Ernest Villareal, et al." The basic complaint
has not been further docketed as an administrative case. Thus, the same did not preclude the
subsequent filing with the PAGC of an administrative complaint against the concerned PEA
officials. [Emphasis supplied]

Subsequently, on November 12, 2002, a formal complaint was filed by the Investigation Office of
PAGC charging several employees of PEA, including petitioners, with acts and/or omissions contrary
to: (1) Item 1B2 of the Implementing Rules and Regulations (IRR) of Presidential Decree (P.D.) No.
1594, as amended; (2) Section 3(i), (g) and (e) of R.A. No. 3019, as amended; (3) Article 217 of the
Revised Penal Code in relation to R.A. No. 3019, as amended; (4) Articles 8.1 and 8.2 of the
Construction Agreement signed on April 10, 2000 between PEA and J.D. Legaspi Construction; and
(5) Section 46 (a) and (b) of Executive Order (E.O.) No. 292, as amended, in particular Item (B),
Nos. 3, 4 and 27, in relation to R.A. No. 3019, as amended.8

On the same date, PAGC issued an order requiring petitioners to file their counter-affidavit/verified
answer (not a motion to dismiss or motion for bill of particulars) within a non-extendible period of 10
days from receipt of the order. Preliminary conference was set on November 22, 2002.9

During the preliminary conference, petitioners raised several jurisdictional issues, particularly the
following: the absence of certification of non-forum shopping in the complaint; the primary jurisdiction
of the Ombudsman to investigate them; the lack of jurisdiction of PAGC over the complaint against
them considering that they were not presidential appointees and there was no allegation that they
had conspired with the presidential appointees who were charged with them; the futility of any
investigation by PAGC as the same would have no bearing on the case filed with the Ombudsman;
and the fatally defective complaint which was not based on personal knowledge of the complainant
who, as an officer of PAGC, was merely a nominal party and was never privy to the project subject
of the investigation.10

PAGC directed petitioners to file their memoranda to formalize their arguments.11

On November 28, 2002, PAGC issued a resolution recommending the dismissal of petitioners from
PEA with the imposition of the corresponding accessory penalties of forfeiture of retirement benefits
and disqualification from employment in the government.12

In a letter dated December 16, 2002, the Office of the President, through the Executive Secretary,
informed the PEA Chairman and Members of the Board that the President approved the
recommendation of PAGC in its November 28, 2002 Resolution dismissing the petitioners from PEA
and imposing upon them the accessory penalties of forfeiture of retirement benefits and
disqualification from employment in the government service, and directed them to take the
necessary actions to effect the instructions of the President. 13

On December 18, 2002, petitioners received a notice dated December 4, 2002 informing them that
PAGC had resolved their case and that the records therein had been forwarded to the Office of the
President. It also advised the petitioners that any inquiry relative thereto should be addressed to the
said office.14
After securing a copy of the PAGC Resolution, petitioners Millan and Viray, together with Manuel R.
Beria, Jr. (Beria) filed a motion for reconsideration15 dated January 2, 2003 with the Office of the
President assailing the November 28, 2002 Resolution and Recommendation of the PAGC.

This motion was not acted upon.16

On July 25, 2003, PEA dismissed the petitioners. They received their copies of the notice of
dismissal on July 28, 2003.17

Aggrieved, Beria, Millan and Viray filed their Petition for Certiorari and Prohibition under Rule 65
with the CA on July 30, 2003, which was docketed as CA G.R. SP No. 78290.18

Lacson, on the other hand, filed a motion for reconsideration of the dismissal order19 in a letter dated
August 11, 2003 addressed to Teodorico C. Taguinod (Taguinod), PEA General Manager and Chief
Executive Officer. This motion, however, was denied on August 20, 2003.20

On August 25, 2003, Ernesto L. Enriquez (Enriquez) and Lacson filed a petition for certiorari and
prohibition under Rule 65 with the CA, which was docketed as CA G.R. SP No. 78749.21 Said
petition, however, was later consolidated with CA G.R. SP No. 78290 upon motion of the Office of
the Solicitor General (OSG). But, before the consolidation of the mentioned petitions, writs of
preliminary injunction were issued.22 The writs, dated August 6, 2003 in CA G.R. SP No. 78290 and
September 16, 2003 in CA G.R. SP No. 78749, temporarily enjoined the respondents from
implementing the dismissal orders.23

Finally, in a consolidated decision dated June 29, 2004, the CA dismissed the consolidated
petitions.24

On July 5, 2004 and July 22, 2004, Lacson in CA-G.R. SP No. 78749 and Beria, Millan and Viray in
CA-G.R. SP No. 78290, filed their respective motions for reconsideration.25 Unfortunately for
petitioners, both motions were denied in a resolution dated September 20, 2004.26

Hence, these petitions.

Upon motion of the OSG, on behalf of respondents Executive Secretary and PAGC, the Court
issued a resolution ordering the consolidation of the petitions in G.R. Nos. 165404 and 165489 with
the petitions in G.R. Nos. 165399 and 165475.27

ISSUES

In their respective petitions for review, petitioners assigned the following errors, to wit:

I.

Respondents erred when they issued the questioned memoranda and ordered the dismissal
of Petitioners allegedly on the basis of the recommendation of the respondent PAGC, in that:

A. Under the constitution and the laws applicable, it is the ombudsman which has the
jurisdiction to investigate and recommend the dismissal of career service officers such as
petitioners herein.
 B. it is the Ombudsman who has primary jurisdiction over the investigation and removal of
Petitioners and not Respondent PAGC.

C. Executive Order No. 12, series of 2002, which grants Respondent PAGC the authority to
investigate and recommend the dismissal of public officers and employees within the civil
service who are non-presidential appointees as petitioners herein is unconstitutional and
invalid for being contrary to law.

D. The direct action of Respondents in dismissing the PetitionerS from the service without
the head of respondent PEA having conducted any investigation at all is contrary to law.

II.

Respondents erred in dismissing the Petitioners from Respondent PEA and public office in that:

a. Petitioners dismissal was violative of their right to due process of law, petitioners having
been deprived of a formal investigation which they are entitled to under the rules of
procedure of the ombudsman and the uniform rules on administrative cases in the civil
service.

b. The Petitioners dismissal was violative of their right to security of tenure as they were
terminated from service upon a mere presidential directive.

iii.

Respondents engaged in prohibited forum shopping by the filing of multiple administrative

These alleged errors in G.R. Nos. 165399 and 165475 and G.R. Nos. 165404 and 165489 can be
categorized into two principal issues:

(1) Whether it is the Ombudsman who should conduct the investigation on the charge of
overpricing of the Project against petitioners; and

(2) Whether the Court can still review the dismissal ordered by PEA.

THE COURTS RULING

The Ombudsman has concurrent jurisdiction with similarly authorized agencies

Petitioners argue that because they are not presidential appointees, it is only the Ombudsman which
has jurisdiction over them.

In this regard, the petitioners are not correct. The Court has repeatedly ruled that the power of the
Ombudsman to investigate offenses involving public officials is not exclusive, but is concurrent with
other similarly authorized agencies of the government in relation to the offense
charged. 29 Therefore, with respect to petitioners, the Ombudsman may share its authority to conduct
an investigation concerning administrative charges against them with other agencies.
At any rate, this issue is already moot and academic as the Ombudsman has terminated its
investigation of petitioners. This can be gleaned from the certified true copies of the Ombudsmans
May 30, 2008 Decision as well as the July 3, 2008 Review and Recommendation which the
petitioners submitted in compliance with the November 22, 2010 Resolution requiring them to inform
the Court of the status of their cases before the Ombudsman. It appears therefrom that the
Ombudsman dismissed the administrative case against the petitioners because the charges had
already been passed upon by PAGC.30

Having been dismissed by PEA, petitioners should have appealed to the Civil Service Commission

Despite the claim of petitioners that the decision to dismiss them was upon orders of the President
or upon undue pressure exerted by the Office of the President to implement the PAGC
recommendations, still the undeniable fact is that the dismissal of petitioners was actually made and
effected by PEA.

Granting that PEA committed an error, whether substantial or procedural, petitioners should have
appealed to the Civil Service Commission (CSC), pursuant to Section 47, Chapter 6, Title I, Book V
of E.O. No. 292 (The Administrative Code of 1987), to wit:

(1) 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.

(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. Their 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
Secretary concerned."[Emphasis Supplied]

It is only after appealing the case to the CSC that it can be elevated to the CA via a petition for
review under Rule 43 of the Rules of Court. From there, said case can be appealed to the Court
through a petition for review on certiorari under Rule 45.

Unfortunately, petitioners chose the wrong remedy. Instead of appealing their dismissal by the PEA
to the CSC, they chose to question it before the CA.

For their failure to appeal to the proper forum, the decision of the PEA dismissing them has become
final and executory. It should be emphasized that "the right to appeal is a statutory right and the
party who seeks to avail himself of the same must comply with the requirements of the law. Failure
to do so, the right to appeal is lost."31
As petitioners dismissal has become final and executory, the Court no longer has the power to
review and act on the matter.

There was no violation of petitioners right to due process and security of tenure

Even granting that this Court can still review the PEA action to terminate the petitioners, they have
not shown that their right to due process and security of tenure was violated.

Petitioners argue that they were denied due process because their order of dismissal was not
accompanied by any justification from the PEA Board of Directors who merely relied on the findings
of PAGC.

This argument, however, deserves scant consideration.

As conversely pointed out by respondents, petitioners cannot claim that their dismissal was
unattended by the requisite due process because they were given the opportunity to be heard in the
course of PAGCs investigation.

Indeed, as career service officers, the petitioners enjoy security of tenure as guaranteed under the
1987 Constitution.32 This is further reiterated in Section 36(a) of P.D. No. 807, otherwise known as
the Civil Service Decree of the Philippines, which clearly provides that "no officer or employee in the
Civil Service shall be suspended or dismissed except for cause as provided by law and after due
process."

The tenurial protection accorded to a civil servant is a guaranty of both procedural and substantive
due process. Procedural due process requires that the dismissal, when warranted, be effected only
after notice and hearing. On the other hand, substantive due process requires, among others, that
the dismissal be for legal cause, which must relate to and effect the administration of the office of
which the concerned employee is a member of and must be restricted to something of a substantial
nature directly affecting the rights and interests of the public.33

Nevertheless, the right to security of tenure is not tantamount to immunity from dismissal. Petitioners
cannot seek absolute protection from this constitutional provision. As long as their dismissal is for a
legal cause and the requirements of due process were met, the law will not prevent their removal
from office.

Per records of the case, the exercise of disciplinary action against petitioners was justified because
(1) they committed acts punishable under the anti-graft laws; and (2) their conduct was prejudicial to
the best interest of the service.34 Thus, their removal from office was for a legal cause.

Anent the alleged failure of respondents to observe due process, well-established is the rule that the
essence of due process in administrative proceedings is the opportunity to explain ones side or
seek a reconsideration of the action or ruling complained of, and to submit any evidence he may
have in support of his defense.35 The demands of due process are sufficiently met when the parties
are given the opportunity to be heard before judgment is rendered.36In the landmark case of Ang
Tibay v. Court of Industrial Relations,37 this Court laid down the cardinal and primary rights to be
observed and respected in administrative proceedings:

(1) The right to a hearing which includes the right of the party interested or affected to
present his own case and submit evidence in support thereof;
 (2) The tribunal must consider the evidence presented;

(3) The decision must have some evidence to support a finding or conclusion;

(4) The evidence must be substantial (that is, such relevant evidence as a reasonable mind
accepts as adequate to support a conclusion);

(5) The decision must be rendered on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected;

(6) The tribunal must act on its own independent consideration of the law and facts of the
controversy, and not simply accept the view of a subordinate in arriving at a decision; and

(7) The tribunal should, in all controversial questions, render its decision in such a manner
that the parties to the proceeding can know the various issues involved and the reasons for
the decisions rendered.38

In this regard, petitioners actively participated in the proceedings before PAGC where they were
afforded the opportunity to explain their actions through their memoranda. The essence of due
process is the right to be heard and this evidently was afforded to them. Thus, petitioners assertion
that their dismissal was unattended by the requisite due process cannot be sustained. 1avvphi 1

In sum, the removal from office of petitioners was valid. PEA dismissed them for cause and in
accordance with the requisites of due process. Petitioners, as PEA officers and employees, are
under the disciplining authority of the PEA Board, pursuant to Section 11 of P.D. No. 1084, the
Charter of the Public Estates Authority,39 which states that:

Section 11. Appointment, control and discipline of personnel. The Board, upon recommendation of
the General Manager of the Authority, shall appoint the officers and employees of the Authority and
its subsidiaries; fix their compensation, allowances and benefits, their working hours and such other
conditions of employment as it may deem proper; grant them leaves of absence under such
regulations as it may promulgate; discipline and/or remove them for cause; and establish and
maintain a recruitment and merit system for the Authority and its affiliates and subsidiaries.
(Emphases supplied)

At any rate, as earlier stated, as the petitioners did not appeal the decision of the PEA to dismiss
them to the CSC, it has become final and executory and the Court can no longer review it.

WHEREFORE, the petitions are DENIED.

SO ORDERED.