FIRST DIVISION
[ G.R. No. 196564, August 07, 2017 ]
GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS), PETITIONER, VS. ALBERT M. VELASCO, RESPONDENT.
D E C I S I O N
LEONARDO-DE CASTRO, J.:
A government employer must exercise its management prerogatives and its authority to discipline employees in good faith and in accordance with the principles of fair play as expected of all employers.
Shortly after having been perpetually restrained by the Court of Appeals[1] from hearing and investigating the pending administrative cases against union president Albert M. Velasco (Velasco) and his colleague Mario I. Molina (Molina), then Government Service Insurance System (GSIS) President and General Manager Winston F. Garcia (PGM Garcia) dropped respondent Velasco from the roll of employees anyway following a new set of formal charges: the first charging him for Gross Discourtesy for doing his duty as president of the employee's union of asserting a contractual right under the Collective Negotiation Agreement (CNA), and second for Insubordination for seeking clarification with regard to two conflicting memoranda: one declaring him ineligible to remain as GSIS Attorney during his term as union president and another reassigning him as GSIS Attorney to the GSIS Zamboanga, Iligan and Cotabato field offices (where he clearly cannot perform his duties as union president). Velasco was dropped from the roll of employees neither for the charge of Gross Discourtesy nor the charge of Insubordination but for a different basis altogether, i.e., being supposedly absent without approved leave for more than thirty (30) days despite his reporting for work in the Head Office instead of the Zamboanga, Iligan and Cotabato field offices.
In this Petition for Review on Certiorari, petitioner GSIS assails the Court of Appeals Decision[2] in CA-G.R. SP No. 86365 dated November 30, 2010. The Court of Appeals, acting on a Petition for Certiorari and Prohibition (with Prayer for Temporary Restraining Order and Writ of Preliminary Injunction) filed by herein respondent Velasco against the officers of petitioner GSIS, declared the following void:
1) GSIS OSVP Office Order No. 04-04 dated July 1, 2004 reassigning Velasco from the head office of the GSIS in Pasay City to its field offices in Zamboanga, Iligan and Cotabato;
2) The Formal Charge docketed as Adm. Case No. 04-010 against Velasco for Insubordination;
3) The Formal Charge docketed as Adm. Case No. 04-009 against Velasco for Gross Discourtesy in the Course of Official Duty; and
4) The dropping of Velasco from the GSIS roll of employees.
The Court of Appeals also directed the GSIS to effect the reinstatement of Velasco to his former position or, if it is no longer feasible, to another position of equivalent rank and compensation. The GSIS was likewise ordered to pay Velasco his back salaries pertaining to the period during which he was unlawfully dropped from the roll of employees.
FACTUAL AND PROCEDURAL ANTECEDENTS
(1) Our Ruling in G.R. Nos. 157383 and
174137 mentioned by the Court of Appeals
in its Decision
PGM Garcia filed administrative charges against Velasco and Molina, who both held the position of Attorney V in the GSIS. Velasco and Molina allegedly committed grave misconduct for helping disgruntled employees to conduct concerted protest actions against PGM Garcia and the GSIS management. PGM Garcia ordered the immediate preventive suspension of Velasco and Molina for a period of ninety (90) days without pay. A committee was constituted to investigate the charges against Velasco and Molina.
Velasco and Molina filed with the Civil Service Commission (CSC) a "Petition to Transfer Investigation to [the] Commission, with an Urgent Motion to Lift Preventive Suspension Order."
The CSC failed to resolve Velasco and Molina's Urgent Motion, leading them to file with the Court of Appeals on October 10, 2002 a Petition for Certiorari and Prohibition with prayer for a Temporary Restraining Order (TRO). The Petition, docketed as CA-G.R. SP No. 73170, sought to set aside the order of PGM Garcia directing them to submit to the jurisdiction of the committee created to investigate the administrative cases filed against them.
On January 2, 2003, the Court of Appeals rendered its Decision granting Velasco and Molina's petition. The dispositive portion of the Decision reads:
PGM Garcia filed with this Court a Petition for Review on Certiorari assailing the Decision of the Court of Appeals. The Petition was docketed as G.R. No. 157383.
Finally, acting on Velasco and Molina's Petition to Transfer Investigation to the Commission, the CSC issued its Resolution No. 03-0278 on February 27, 2003, the dispositive portion of which states:
The CSC ruled that since the period of the preventive suspension has lapsed, the issue has become moot. The Petition to Transfer Investigation to the Commission was denied on the ground that the fact that the GSIS acted as complainant, prosecutor, and judge in the administrative cases does not necessarily mean that it will not be impartial.
Velasco and Molina assailed the CSC Resolution in a Petition for Review with the Court of Appeals, which was docketed as CA-G.R. SP No. 75973. On December 7, 2005, the Court of Appeals rendered its Decision reversing the CSC Resolution, and holding that the lack of the requisite preliminary investigation rendered the formal charges against Velasco and Molina void. The Court of Appeals likewise ruled that the propriety of the preventive suspension has not become moot. Since the preventive suspension emanated from void formal charges, Velasco and Molina are entitled to back salaries. The dispositive portion of the Decision reads:
PGM Garcia filed a Petition for Certiorari with this Court assailing the Decision of the Court of Appeals in CA-G.R. SP No. 75973. The petition was docketed as G.R. No. 174137, which was consolidated with G.R. No. 157383.
This Court rendered its Decision on the consolidated petitions on August 10, 2010. The dispositive portion of this Court's Decision reads:
This Court held that although the President and General Manager of the GSIS is vested with authority and responsibility to remove, suspend or otherwise discipline GSIS personnel for cause, such power is not without limitations and must be exercised in accordance with Civil Service Rules, which PGM Garcia neglected to do. This Court explained:
On PGM Garcia's argument that Velasco and Molina waived their right to a preliminary investigation for failure to raise the matter before the GSIS, this Court ruled that a decision held without due process is void ab initio and may be attacked anytime directly or collaterally by means of a separate action, or by resisting such decision in any action or proceeding where it is invoked. Moreover, Velasco and Molina questioned the validity of their preventive suspension in the CSC on the ground of lack of preliminary investigation.
This Court concluded that since Velasco and Molina were preventively suspended in the same formal charges that were declared void, their preventive suspension is likewise invalid.
(2) Two Conflicting Memoranda
In the meantime, after the January 2, 2003 Decision of the Court of Appeals in CA-G.R. SP No. 73170 perpetually restraining PGM Garcia and the GSIS from hearing and investigating the administrative cases against Velasco and Molina, but before said restraining order was affirmed by this Court on August 10, 2010, the GSIS issued two conflicting Memoranda to Velasco:
(a) On June 29, 2004, GSIS Senior Vice-President-Administration Group Concepcion L. Madarang issued a Memorandum informing Velasco (who was elected President of the Kapisanan ng mga Manggagawa sa GSIS or KMG in May 2004) that he could no longer hold the position of GSIS Attorney because of conflict of interest and he should either seek a transfer to another position or go on extended leave of absence for the duration of his term as union president; and
(b) A mere two days later or on July 1, 2004, the GSIS Chief Legal Counsel issued OSVP Office Order No. 04-04, which provided:
This second Memorandum did not state that the transfer was because of conflict of interest. On the contrary, it specified Velasco's legal expertise as the reason for the transfer. The Memorandum likewise stated that "(t)his Order shall take effect immediately and shall remain effective until further notice" which contradicts the statement in the very same memorandum that the reassignment is for a fixed period of ninety (90) days.[9] In other words, the duration of the reassignment cannot be said to be definite.
Velasco wrote the GSIS informing the latter of the unmistakable conflict between the two memoranda he received: unless the Memorandum disqualifying him as GSIS Legal Counsel is withdrawn, he cannot assume the Mindanao posting as GSIS Legal Counsel.
In response to Velasco's request for clarification, Lutgardo B. Barbo[10] issued a Memorandum[11] to him on July 9, 2004 stating that "Your reply appears to stonewall or countermand [OSVP Office Order No. 04-04]. It may also show in no uncertain terms your defiance, refusal and deliberate failure to comply with an otherwise lawful order." The Memorandum required Velasco to explain why he should not be administratively dealt with for Insubordination, Misconduct, Conduct Prejudicial to the Best Interest of the Service and/or Refusal to Perform Official Duty. Without clarifying the commencement and the term of Velasco's reassignment other than the vague statement in the July 1, 2004 Order that it "shall take effect immediately and shall remain effective until further notice," the GSIS immediately treated the letter as a defiance warranting an administrative charge.
Notably, the reassignment order was issued despite the fact that the GSIS chief legal counsel had earlier issued a Memorandum[12] dated June 7, 2004 urgently requesting PGM Garcia for the appointment of litigation lawyers in the Legal Services Group (LSG) since three lawyers at the Head Office had either resigned or were promoted. To quote from said Memorandum which was issued less than a month prior to Velasco's reassignment:
Even further highlighting the fact that Velasco's July 1, 2004 reassignment to the Mindanao field offices was effected despite a continued shortage of lawyers in the GSIS main office is OSVP Order No. 05-04[13] issued on July 5, 2004 by the chief legal counsel detailing one of the field lawyers to the main office. The pertinent portion of said Order reads:
(3) Velasco's allegedly Grossly Discourteous Memorandum
Velasco, acting as president of the KMG, issued a memorandum dated June 28, 2004 to GSIS SVP Leticia P. Sagcal with reference to her memorandum prohibiting employees from participating in any "UNION ACTIVITIES during office hours." Citing the Collective Negotiation Agreement between the GSIS and the KMG which provides that "(t)he GSIS Management agrees and hereby authorizes the duly elected executive and legislative assembly officers of the KMG, including the chairpersons of KMG standing committees to perform the functions related to KMG activities on official time," Velasco demanded the recall of the Memorandum of SVP Sagcal.
In response, the GSIS issued a memorandum requiring Velasco to "submit your Counter-Affidavit/Comment under Oath within three (3) days from receipt hereof explaining why you should not be administratively dealt with for misconduct, discourtesy, insubordination and/or conduct prejudicial to the best interest of the service."[14] Velasco issued his reply stressing that he wrote the letter as a duly elected union representative asserting a contractual right.
(4) RTC Case / Formal Charges / Removal from the Rolls
In connection with the two conflicting memoranda disqualifying Velasco as GSIS Legal Counsel and assigning him as GSIS Legal Counsel in Mindanao, Velasco filed with the Regional Trial Court (RTC) of Manila a Petition for Certiorari and Prohibition seeking to prohibit the GSIS from enforcing the following: (1) OSVP Order No. 04-04 dated July 1, 2004 assigning him to the Zamboanga, Iligan, Cotabato field offices; (2) July 7, 2004 Memorandum directing him to explain his letter-reply to SVP Sagcal; and (3) July 9, 2004 Memorandum directing him to explain his failure to comply with the Reassignment Order.
The RTC of Manila initially issued a 72-hour TRO which was later extended to twenty days. However, the Petition was eventually dismissed by the RTC of Manila on the ground of improper venue, said court ratiocinating that the case should be filed with the RTC of Pasay City where the principal office of the GSIS is located. During the pendency of said case, the GSIS nonetheless initiated the two assailed Formal Charges against Velasco:
(1) The Formal Charge dated August 10, 2004 signed by PGM Garcia, docketed as ADM. Case No. 04-009 for Gross Discourtesy in the Course of Official Duty in connection with Velasco's letter to SVP Sagcal;[15] and
(2) The Formal Charge dated August 13, 2004 signed by PGM Garcia, docketed as ADM. Case No. 04-010 for Refusal to Perform Official Duty; Insubordination; Misconduct; Conduct Prejudicial to the Best Interest of the Service in connection with the two conflicting Memoranda.[16]
During the pendency of Velasco's Motion for Reconsideration of the RTC Resolution dismissing the Petition for improper venue, and while Velasco continued to report to his post in the Head Office, the GSIS issued the assailed September 1, 2004 letter[17] to Velasco dropping him from the rolls of the GSIS on the claim that allegedly he has been continuously absent without leave (AWOL) for thirty (30) days.
(5) Petition for Certiorari with the Court of Appeals
On September 13, 2004, Velasco withdrew his Motion for Reconsideration before the RTC of Manila which favorably acted on said withdrawal in an Order[18] dated September 14, 2004. On September 15, 2004, Velasco thereafter filed a Petition for Certiorari and Prohibition with Prayer for Temporary Restraining Order and/or Writ of Preliminary Injunction with the Court of Appeals, assailing GSIS OSVP Office Order No. 04-04 reassigning him to Zamboanga City; the Formal Charge docketed as Adm. Case No. 04-010 for Insubordination; the Formal Charge docketed as Adm. Case No. 04-009 for Gross Discourtesy in the Course of Official Duty; and the letter dated September 1, 2004 dropping Velasco from the GSIS roll of employees.
On September 17, 2004, the Court of Appeals issued a Resolution[19] granting Velasco's prayer for a 60-day TRO enjoining the GSIS from further implementing the assailed acts. Petitioner GSIS however refused to implement the TRO and asserted that, with Velasco's dropping from the rolls, injunction was improper to restrain acts that had become fait accompli.
On November 30, 2010, the Court of Appeals issued the assailed Decision, the dispositive portion of which read:
The GSIS filed a Motion for Reconsideration, which was denied by the Court of Appeals in its Resolution dated April 1, 2011.
The GSIS then filed the present Petition for Review on Certiorari, raising the following grounds for the allowance of the same: (a) that Velasco is guilty of forum shopping; (b) that the non-exhaustion of administrative remedies is fatal to Velasco's Petition for Certiorari before the Court of Appeals; and (c) that petitioner is allegedly justified in its actions against Velasco since GSIS lawyers are precluded from joining the employees' organization or union according to a ruling issued by the Public Sector Labor-Management Council (PSL-MC).[21]
THIS COURT'S RULING
Forum Shopping
Petitioner alleged that Velasco is guilty of forum shopping for filing a Petition for Certiorari with the Court of Appeals (a) while his motion for reconsideration in Civil Case No. 04110451 was still pending before the RTC of Manila, Branch 22; and (b) during the pendency of CA-G.R. SP No. 86130 with another division of the appellate court.
According to jurisprudence, forum shopping is the act of a party against whom an adverse judgment has been rendered in one forum, of seeking another (and possibly favorable) opinion in another forum other than by appeal or special civil action of certiorari, or the institution of two (2) or more actions or proceedings grounded on the same cause on the supposition that one or the other court might look with favor upon the party. Where the elements of litis pendentia are not present or where a final judgment in one case will not amount to res judicata in the other, there is no forum shopping.[22]
Based on the facts on record, we see no reason to disturb the Court of Appeals' ruling that respondent Velasco was not guilty of forum shopping as succinctly explained in its November 30, 2010 Decision:
We have held that what is truly important to consider in determining whether forum shopping exists or not is the vexation caused the courts and parties-litigants by a party who asks different courts and/or administrative agencies to rule on the same or related causes and/or grant the same or substantially the same reliefs, in the process creating the possibility of conflicting decisions being rendered by different fora upon the same issues.[24] In this instance, there was no danger that two different fora might render conflicting decisions as the petition before the Court of Appeals was the only case pending which involved the specific issues raised therein.
Exhaustion of Administrative Remedies
and the Alleged Illegality of Velasco's
Union Involvement
We discuss the second and third issues raised by petitioner jointly as the resolution of the procedural issue of exhaustion of administrative remedies hinges on the substantive issue of whether or not petitioner's actions and issuances involving respondent Velasco were patently illegal and/or tainted with bad faith.
Petitioner claims that Velasco violated the doctrine of exhaustion of administrative remedies by filing a Petition for Certiorari and Prohibition with the Court of Appeals instead of assailing his dismissal with the CSC. The Court of Appeals ruled that the assailed GSIS issuances were patently illegal and, hence, the case falls within at least one of several exceptions to the doctrine on exhaustion of administrative remedies. The exceptions, according to Province of Zamboanga del Norte v. Court of Appeals,[25] are: (1) when there is a violation of due process; (2) when the issue involved is purely a legal question; (3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction; (4) when there is estoppel on the part of the administrative agency concerned; (5) when there is irreparable injury; (6) when the respondent is a department secretary whose acts, as an alter ego of the President, bears the implied and assumed approval of the latter; (7) when to require exhaustion of administrative remedies would be unreasonable; (8) when it would amount to a nullification of a claim; (9) when the subject matter is a private land in land case proceedings; (10) when the rule does not provide a plain, speedy and adequate remedy; (11) when there are circumstances indicating the urgency of judicial intervention, and unreasonable delay would greatly prejudice the complainant; (12) when no administrative review is provided by law; (13) where the rule of qualified political agency applies; and (14) when the issue of non-exhaustion of administrative remedies has been rendered moot.
After a judicious examination of the records, we uphold the Court of Appeals' ruling that the present case falls within the recognized exceptions to the rule regarding exhaustion of administrative remedies. Before going into the merits of the case, we dispel the procedural concerns raised in the dissent.
The Dissenting Opinion submits, citing Merida Water District v. Bacarro,[26] that the test to determine whether or not there is patent illegality is "whether there exists a factual issue to be resolved to arrive at the conclusion of illegality."[27] Accordingly, the notion of patent illegality in the case at bar is negated by the presumption of good faith on the part of the GSIS officers involved, and the presumption of regularity of official acts. Determination of bad faith and irregularity are questions of fact, which should allegedly bar direct recourse before the courts in a special civil action.
The Court's decision in Republic of the Philippines v. Lacap[28] explained the rationale behind the doctrine of exhaustion of administrative remedies in this wise:
In Merida, the factual question involved was the determination of the current water rate from which the allowable 60% increase can be computed in accordance with existing rules and regulations. Obviously, that was a highly technical matter that required the special knowledge and expertise of the proper administrative agency to resolve. The issue of whether petitioner GSIS's memoranda and issuances against respondent Velasco were attended by bad faith is hardly the kind of "technical and intricate" factual matter that requires prior resolution by an administrative body with special expertise or knowledge. To be sure, in Department of Finance v. Dela Cruz, Jr.,[29] we held that a case that assails the mass detail and reassignment of DOF employees as "patently illegal, arbitrary, and oppressive" falls among the exceptions to the doctrine of exhaustion of administrative remedies and thus, we upheld said employees' direct recourse to the courts as there was no need to resort to remedies with the CSC. In another example of bitterly contested litigation between the parties in the case at bar, The Board of Trustees of the Government Service Insurance System v. Velasco,[30] we held that the RTC, not the CSC, had jurisdiction over a petition for prohibition with prayer for writ of preliminary injunction even if it involved a civil service matter. Verily, the principle that all personnel actions must first be referred to the CSC is not an iron-clad rule.
The dissent's reliance on Corsiga v. Defensor[31] is misplaced as no court therein issued a judgment on the merits. What was appealed to the Court was a preliminary order denying a motion to dismiss on jurisdictional grounds. Even more importantly, the Court in Corsiga expressly stated that the employee failed to present evidence of the invalidity of his reassignment and for that reason the reassignment was presumed regular. In the present case, the Court of Appeals found, after due proceedings, that respondent duly proved his factual allegations while petitioner failed to refute the evidence presented against it. There is no cause for the dissent to assert that petitioner was denied due process for it had every opportunity before the Court of Appeals to submit its countervailing evidence but petitioner chose to present purely technical objections to respondent's petition and pinned its defense on the presumptions of good faith and of regularity in the performance of official duty which are both rebuttable by proof.
This Court cannot accept the proposition that a mere allegation of good faith by the issuers of the assailed official acts automatically takes the disputed action out of its being patently illegal and thereby necessitates the application of the doctrine of exhaustion of administrative remedies. Bad faith and irregularities can be evident from the assailed acts themselves, in which case the courts should not simply tum a blind eye on the ground that it is the administrative agencies which must take the first look. It is precisely in cases when the bad faith and irregularity are so blatant that immediate recourse to the courts is necessary in order to nullify a capricious and whimsical exercise of authority.
This Court finds no reversible error on the part of the Court of Appeals in making a finding of illegality and bad faith in the GSIS's actions against Velasco based on the undisputed facts on record.
Petitioner alleged that "the Court of Appeals failed to consider that in all the cases filed by respondent, his basic allegation stemmed from just one single act, i.e., his illegal activities as union president of the KMG which led to the GSIS's taking of necessary measures to protect its interest."[32]
Interestingly, in the decision of the Court of Appeals in CA-G.R. SP No. 73170, which was affirmed by this Court in the consolidated cases, G.R. Nos. 157383 and 174137, the GSIS's officers were perpetually restrained from hearing and investigating the administrative case against Velasco and Molina for acts allegedly in betrayal of the confidential nature of their positions and in defiance of the Rules and Regulations on Public Sector Unionism, without prejudice to pursuing the same with the CSC or any other agency of the government as may be allowed by law. Even then the appellate court recognized that the investigation should not be done by the GSIS but by the CSC or any other impartial and disinterested tribunal. Yet, the GSIS undertook to investigate Velasco on new formal charges in this case, springing from essentially similar grounds of breach of confidentiality of position and union activities. We now examine these new formal charges.
On the issue of the validity of the reassignment order, upon which the charge of Insubordination depends, we sustain the Court of Appeals' factual finding that the GSIS never denied, much less refuted, the various memoranda presented by Velasco proving that there was a dire shortage of lawyers in the Manila Head Office at the time of his reassignment to the Mindanao field offices. There is nothing in the records to show that other lawyers from the Head Office were also sent out to augment the legal staff in the field offices. On the contrary, Velasco demonstrated that due to the extreme lack of manpower in the Head Office a lawyer from the one of the field offices was temporarily detailed in the Head Office until the vacancies therein were filled. Although the first paragraph of the reassignment order stated that it was for a period of ninety (90) days, the last paragraph states that the order shall take effect immediately and shall remain effective until further notice. What is indubitable from the records was that Velasco was being singled out for indefinite reassignment due to his election as union president. In all, this Court concurs with the appellate court that there was "no valid cause for the reassignment" and "the reassignment order was issued to prevent [Velasco] from actually and aggressively leading the union['s] activities and in the process weaken unionism in [the] GSIS main office."[33] As Velasco's reassignment is invalid, there was no cause to charge him with Insubordination.
As for the second formal charge, the difficulty of finding an actionable case of gross discourtesy from the following letter can be considered by the courts in determining whether there is gross abuse of authority on the part of petitioner:
Even without the presentation of evidence before an administrative body, the existence of bad faith and the arbitrary and despotic abuse of power can easily be gleaned from an administrative case of gross discourtesy ensuing from the mere issuance of the above letter by a union president. The exercise of even a statutorily enshrined power when done in a whimsical and capricious manner amounting to lack of jurisdiction is properly assailed in a special civil action under Rule 65 before the courts.
In any event, the merits of the formal charges of Insubordination and Gross Discourtesy against Velasco need not even be scrutinized by the Court. Despite initiating administrative investigations in relation to the Formal Charge docketed as Adm. Case No. 04-010 (for Insubordination, etc.) and the Formal Charge docketed as 04-009 (for Gross Discourtesy), the GSIS never issued a decision or ruling in these administrative cases. In the end, Velasco was dropped from the rolls for his purported 30 days continuous absence without authorized leave, a separate and distinct matter, not included in the charges stated in the two formal charges pending investigation.
The Court cannot fault respondent for claiming that his separation from the service was without valid ground and done without due process. Furthermore, this Court fully agrees with the Court of Appeals that Velasco's dropping from the rolls was unwarranted when he did not abandon his post.
Petitioner GSIS did not dispute the fact that Velasco continued to report at the Head Office while he was seeking clarification from the GSIS regarding its conflicting memoranda and while various contentious issues between the parties were pending before the courts and the PSL-MC. The records bear out that correspondence and memoranda were personally served on Velasco by the GSIS, including the notice of his dropping from the rolls, since he could be readily found at his work station in the Head Office. On the other hand, the records are bereft of proof that the GSIS in good faith gave notice to Velasco that he would be considered absent without authorized leave for his failure to report for duty in the Mindanao field offices. Significantly, the GSIS itself narrated in the petition that Velasco was able to secure from the RTC a 72-hour TRO on July 20, 2004 that was extended for another 20 days, giving him additional justification to defer taking up his Mindanao posting while his standing disputes with management were pending litigation.
In Batangas State University v. Bonifacio,[35] a teacher was dropped from the rolls by the petitioner state university for failure to immediately report to his new detail at the office of the university president and instead he continued to fulfill his duties as a teacher and coach of the basketball team. We held that where there is no abandonment or clear proof of the intention to sever the employer-employee relationship, an employee cannot be dropped from the rolls. Furthermore, despite the proviso in Section 63, Rule XVI of the Omnibus Civil Service Rules and Regulations that an employee continuously absent without approved leave for at least thirty (30) days may be dropped from the rolls without prior notice, we ruled that there was bad faith on the part of the employer and a violation of an employee's rights to security of tenure and due process when the employer ignored the employee's presence in the school, did not give him the opportunity to explain his purported absences and thereafter peremptorily dropped him from the rolls.
Certainly, the gross violation of Velasco's due process rights in the matter of his dropping from the rolls not only contribute to the patent illegality of his separation from the service but is in itself a recognized exception to the rule on exhaustion of administrative remedies.[36]
The Dissenting Opinion rejects the applicability of Batangas State University, and argued, echoing the words of petitioner, that while there was good faith on the part of the employee in BSU to report to his new detail, Velasco showed bad faith when he "wrote a letter conveying his resistance to the assignment order." The Court should not adopt petitioner's arrogant stance of treating a mere clarificatory letter as an act of defiance and gross discourtesy. The despotic notion that an employee may not even ask for clarification of inconsistent orders precisely manifests the grave abuse of discretion on the part of petitioner. It shows very clearly that petitioner is bent on dismissing Velasco for whatever imagined wrong it can throw at him, and force. him to file a case for each new accusation.
Be that as it may, the Dissenting Opinion misreads the significance of BSU, which is cited to emphasize that an employee who reports for work cannot be summarily dropped from the rolls for being "continuously absent without approved leave for at least 30 calendar days." BSU held that ignoring said employee instead of summoning him to explain his alleged absences does not only show bad faith, but is itself a violation of the constitutional guarantees of security of tenure and due process. Violation of due process is the first and foremost exception to the doctrine of exhaustion of administrative remedies in settled jurisprudence other than BSU, making it entirely irrelevant that there was prior resort to the CSC in BSU.
The dissent asserts that bad faith is never presumed; it is a conclusion to be drawn from the facts.[37] However, intent, being a state of mind, is rarely susceptible of direct proof, but must ordinarily be inferred from the facts.[38] Consequently, when the facts – namely the acts from which bad faith can be inferred – already appears on record and are uncontroverted, the legal consequence of such acts becomes a question of law which falls under the exceptions to the rule on exhaustion of administrative remedies as well. A question of law exists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set of facts; or when the issue does not call for an examination of the probative value of the evidence presented, the truth or falsehood of facts being admitted.[39]
Petitioner's improper motive in its actions and issuances against respondent is plainly apparent even in its submissions to this Court. In the petition, the GSIS averred it "lost all faith and confidence in respondent when he ran for and was elected KMG President"[40] and that it was Velasco's purported "illegal activities as union president of the KMG which led to the GSIS's taking of necessary measures to protect its interest."[41] Indeed, this history of antagonism between Velasco and the GSIS's previous leadership is a matter of record not only in this case but also in G.R. Nos. 157383 and 174137, which arose from the charges of misconduct against Velasco for participating and/or leading protests against management and former GSIS President Winston F. Garcia for alleged corruption.
As the GSIS admits in the petition, it was Velasco himself who submitted the issue of his eligibility to hold the position of union president for resolution by the PSL-MC to settle his dispute with management.[42] However, the GSIS pre-empted the ruling of the PSL-MC and issued the reassignment order, the formal charges of Insubordination and Gross Discourtesy and the order dropping Velasco from the rolls long before the PSL-MC could dispose of the matter in its Resolution No. 02, s. 2005 dated May 4, 2005, now being cited by the GSIS as its main basis for the legality of its actions against Velasco. It is the height of injustice and absurdity to allow the GSIS to now rely on this issuance when it did not even exist in 2004 when the GSIS issued the assailed memoranda and orders that are the subject matter of this case.
It bears repeating as well that the PSL-MC merely ruled that lawyers of the GSIS Legal Services Group are ineligible to join and hold elective positions in the union.[43] There was no statement in PSL-MC Resolution No. 02, s. 2005 that the holding of a position in the union was a ground to discipline or dismiss Velasco. Even in the GSIS's Memorandum dated June 29, 2004 advising Velasco of his inelibility to hold the position of GSIS Attorney while serving as union president on the ground of conflict of interest, there was no mention of any disciplinary action to be taken but only that Velasco was given the options to either (a) seek a transfer to another position not covered by the prohibition or (b) go on extended leave of absence for the term of his office, subject to existing office rules and regulations. Yet, despite the fact that the GSIS did not see fit to discipline or sanction Velasco for his union activities in the June 29, 2004 Memorandum, it nonetheless engaged in a series of actions to harass Velasco, to keep him away from the Head Office (by inducing him to seek a transfer or to take a leave and, failing in that, reassigning him) and to eventually cause Velasco's separation from the service on whatever ground and by whatever means it could conceive.
Petitioner's assertion that the new formal charges against Velasco and his dismissal from the service are measures to protect the interests of the GSIS from Velasco's purportedly illegal activities as union president likewise violate Velasco's right to due process as he is being indirectly charged for something not mentioned in the Formal Charges. To reiterate, Velasco was never administratively charged for what the GSIS termed as his "illegal" service as union president and therefore, Velasco could not have been validly dismissed from the service on that ground. Moreover, the GSIS could not have possibly relied on the aforementioned PSL-MC Resolution to justify Velasco's dismissal or separation from the service as the same was issued more than eight (8) months after Velasco had already been dropped from the rolls.
Prior to the resolution by the PSL-MC of the question of Velasco's eligibility to join the union and serve as union president, the GSIS had no basis to act against Velasco on that ground other than the opinion of its own chief legal counsel. For this reason, the GSIS was bound to respect in good faith Velasco's election as union president of the KMG until the PSL-MC could issue its opinion on the grievance raised by Velasco. As the Court of Appeals correctly emphasized, "[t]he right to unionize or to form organizations is now explicitly recognized and granted to employees in both the governmental and private sectors"[44] and that the Bill of Rights itself demands that such right shall not be abridged.[45]
In the private sector, the Court has held that the reassignment of an employee is illegal if it is used as a subterfuge by the employer to rid himself of an undesirable worker or when the real reason is to penalize an employee for his union activities and when there is no genuine business urgency that necessitated the transfer.[46] Neither does the Court condone a reassignment done by a private employer on the pretext of eventually removing an employee with whom the employer felt "uncomfortable" because it doubted the employee's loyalty.[47] This Court will not be induced into setting a precedent that a government employer can hide behind the presumption of regularity in the performance of official duty in spite of evidence of illegal, discriminatory and oppressive acts against labor extant in the records.
In closing, it is worth recalling that the non-exhaustion of administrative remedies is a procedural matter that, time and again, this Court has held should be set aside in the interest of substantial justice.[48] This is particularly true in this case when the application of said doctrine would in effect deny respondent reliefs despite his meritorious claim. The insistence in the Dissenting Opinion that the Court of Appeals should have ignored petitioner's manifest display of arrogance and disregard of court orders on the ground that bad faith is a factual issue misses the basic principle that the Court of Appeals, unlike this Court, is mandated to rule on questions of fact.[49] The Dissenting Opinion's proposed reversal of the factual findings and the judgment on the merits of the Court of Appeals on the ground of a supposed procedural misstep is unjust and unduly burdens a party already aggrieved by a whimsical, capricious, and despotic abuse of power with a circuitous and ineffectual remedy. Accordingly, this Court holds that the Court of Appeals properly decided the substantive issues when the evidence it needed to resolve the same was already before it.
WHEREFORE, the Petition for Review on Certiorari is DENIED. The Court of Appeals Decision dated November 30, 2010 and Resolution dated April 1, 2011 in CA-G.R. SP No. 86365 are AFFIRMED.
SO ORDERED.
Sereno, C.J., (Chairperson), Del Castillo, Perlas-Bernabe, and Caguioa, JJ., concur.
[1] Later affirmed by this Court with finality; Garcia v. Molina, 642 Phil. 6 (2010).
[2] Rollo, pp. 34-60; penned by Associate Justice Priscilla J. Baltazar-Padilla with Associate Justices Fernanda Lampas Peralta and Manuel M. Barrios concurring.
[3] Garcia v. Molina, supra note 1 at 14.
[4] Id. at 15.
[5] Id. at 16.
[6] Id. at 24.
[7] Id. at 21-22.
[8] CA rollo, p. 24.
[9] Id.
[10] Manager, Investigation Unit, Office of the President and General Manager.
[11] Rollo, p. 67.
[12] CA rollo, pp. 44-45.
[13] Id. at 43.
[14] Rollo, p. 68.
[15] CA rollo, pp. 28-29.
[16] Id. at 25-26.
[17] Id. at 27.
[18] Id. at 117.
[19] Id. at 47-48.
[20] Rollo, p. 60.
[21] The Public Sector Labor-Management Council (PSL-MC) was created by virtue of Executive Order No. 180 (June 1, 1987) and is composed of the Chairperson of the Civil Service Commission and the Secretaries of the Department of Labor and Employment, the Department of Finance, the Department of Justice, and the Department of Budget and Management.
[22] Bangko Silangan Development Bank v. Court of Appeals, 412 Phil. 755, 770-771 (2001).
[23] Rollo, pp. 48-49.
[24] Kapisanang Pangkaunlaran ng Kababaihang Potrero, Inc. v. Barreno, 710 Phil. 654, 660 (2013).
[25] 396 Phil. 709, 718-719 (2000).
[26] 588 Phil. 505 (2008).
[27] Dissenting Opinion, p. 4.
[28] 546 Phil. 87, 96-97 (2007).
[29] 767 Phil. 611, 619-620 (2015).
[30] 656 Phil. 385, 395-396 (2011). In said case, Velasco and Molina assailed before the RTC the resolutions of the GSIS disqualifying them from receiving their step increment benefits during the pendency of their administrative cases beyond the period of their preventive suspension (which arose from the same incident that was the subject matter of G.R. Nos. 157383 and 174137). The Court affirmed the RTC decision declaring these resolutions null and void.
[31] 439 Phil. 875 (2002); Dissenting Opinion, p. 7.
[32] Rollo, p. 17.
[33] Id. at 56.
[34] CA rollo, pp. 39-40.
[35] 514 Phil. 335 (2005).
[36] Province of Zamboanga del Norte v. Court of Appeals, supra note 25.
[37] Dissenting Opinion, p. 4.
[38] Feeder International Line, Pte., Ltd. v. Court of Appeals, 274 Phil. 1143, 1152-1153 (1991).
[39] Alfornon v. Delos Santos, G.R. No. 203657, July 11, 2016, 796 SCRA 194, 201; Bukidnon Doctors' Hospital, Inc. v. Metropolitan Bank & Trust Co., 501 Phil. 516, 526 (2005), citing Republic v. Sandiganbayan, 425 Phil. 752, 765 (2002).
[40] Rollo, p. 29.
[41] Id. at 17.
[42] Id. at 23; See also PSL-MC Resolution No. 02, s. 2005.
[43] Parenthetically, in the early case of GSIS v. GSIS Supervisor's Union (160-A Phil. 1066, 1083-1084 [1975]), the Court held that the legal staff of different government owned or controlled corporations although under the Government Corporate Counsel and embraced within the Civil Service Law are not absolutely prohibited from membership in labor unions as long as such labor unions do not impose the obligation to strike or join strikes on its members. However, as the validity of PSL-MC Resolution No. 02, s. 2005 is not an issue in this case, we refrain from passing upon the correctness of its legal reasoning in declaring lawyers of the GSIS Legal Services Group as ineligible to join the union.
[44] Rollo, p. 56, citing Trade Unions of the Philippines and Allied Services v. National Housing Corporation, 255 Phil. 33, 39 (1989).
[45] Id., citing Section 8, Article III of the 1987 Constitution which provides that "[t]he right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged."
[46] See Yuco Chemical Industries, Inc. v. Ministry of Labor and Employment, 264 Phil. 338, 341-342 (1990).
[47] See Pocketbell Philippines, Inc. v. National Labor Relations Commission, 310 Phil. 379, 390 (1995).
[48] See, for example, Paje v. Casiño, 752 Phil. 498, 544 (2015); Silva v. Mationg, 531 Phil. 324, 336 (2006).
[49]
Shortly after having been perpetually restrained by the Court of Appeals[1] from hearing and investigating the pending administrative cases against union president Albert M. Velasco (Velasco) and his colleague Mario I. Molina (Molina), then Government Service Insurance System (GSIS) President and General Manager Winston F. Garcia (PGM Garcia) dropped respondent Velasco from the roll of employees anyway following a new set of formal charges: the first charging him for Gross Discourtesy for doing his duty as president of the employee's union of asserting a contractual right under the Collective Negotiation Agreement (CNA), and second for Insubordination for seeking clarification with regard to two conflicting memoranda: one declaring him ineligible to remain as GSIS Attorney during his term as union president and another reassigning him as GSIS Attorney to the GSIS Zamboanga, Iligan and Cotabato field offices (where he clearly cannot perform his duties as union president). Velasco was dropped from the roll of employees neither for the charge of Gross Discourtesy nor the charge of Insubordination but for a different basis altogether, i.e., being supposedly absent without approved leave for more than thirty (30) days despite his reporting for work in the Head Office instead of the Zamboanga, Iligan and Cotabato field offices.
In this Petition for Review on Certiorari, petitioner GSIS assails the Court of Appeals Decision[2] in CA-G.R. SP No. 86365 dated November 30, 2010. The Court of Appeals, acting on a Petition for Certiorari and Prohibition (with Prayer for Temporary Restraining Order and Writ of Preliminary Injunction) filed by herein respondent Velasco against the officers of petitioner GSIS, declared the following void:
1) GSIS OSVP Office Order No. 04-04 dated July 1, 2004 reassigning Velasco from the head office of the GSIS in Pasay City to its field offices in Zamboanga, Iligan and Cotabato;
2) The Formal Charge docketed as Adm. Case No. 04-010 against Velasco for Insubordination;
3) The Formal Charge docketed as Adm. Case No. 04-009 against Velasco for Gross Discourtesy in the Course of Official Duty; and
4) The dropping of Velasco from the GSIS roll of employees.
The Court of Appeals also directed the GSIS to effect the reinstatement of Velasco to his former position or, if it is no longer feasible, to another position of equivalent rank and compensation. The GSIS was likewise ordered to pay Velasco his back salaries pertaining to the period during which he was unlawfully dropped from the roll of employees.
(1) Our Ruling in G.R. Nos. 157383 and
174137 mentioned by the Court of Appeals
in its Decision
PGM Garcia filed administrative charges against Velasco and Molina, who both held the position of Attorney V in the GSIS. Velasco and Molina allegedly committed grave misconduct for helping disgruntled employees to conduct concerted protest actions against PGM Garcia and the GSIS management. PGM Garcia ordered the immediate preventive suspension of Velasco and Molina for a period of ninety (90) days without pay. A committee was constituted to investigate the charges against Velasco and Molina.
Velasco and Molina filed with the Civil Service Commission (CSC) a "Petition to Transfer Investigation to [the] Commission, with an Urgent Motion to Lift Preventive Suspension Order."
The CSC failed to resolve Velasco and Molina's Urgent Motion, leading them to file with the Court of Appeals on October 10, 2002 a Petition for Certiorari and Prohibition with prayer for a Temporary Restraining Order (TRO). The Petition, docketed as CA-G.R. SP No. 73170, sought to set aside the order of PGM Garcia directing them to submit to the jurisdiction of the committee created to investigate the administrative cases filed against them.
On January 2, 2003, the Court of Appeals rendered its Decision granting Velasco and Molina's petition. The dispositive portion of the Decision reads:
ACCORDINGLY, the petition is hereby GRANTED. Public respondents are hereby PERPETUALLY RESTRAINED from hearing and investigating the administrative case against petitioners, without prejudice to pursuing the same with the Civil Service Commission or any other agency of government as may be allowed x x x by law.[3]
PGM Garcia filed with this Court a Petition for Review on Certiorari assailing the Decision of the Court of Appeals. The Petition was docketed as G.R. No. 157383.
Finally, acting on Velasco and Molina's Petition to Transfer Investigation to the Commission, the CSC issued its Resolution No. 03-0278 on February 27, 2003, the dispositive portion of which states:
WHEREFORE, the Commission hereby rules that:
- The Urgent Petition to Lift the Order of Preventive Suspension is hereby DENIED for having become moot and academic.
- The Petition to Transfer Investigation to the Commission is likewise DENIED for lack of merit. Accordingly, GSIS President and General Manager Winston F. Garcia is directed to continue the conduct of the formal investigation of the charges against respondents-petitioners Albert Velasco and Mario I. Molina.[4]
The CSC ruled that since the period of the preventive suspension has lapsed, the issue has become moot. The Petition to Transfer Investigation to the Commission was denied on the ground that the fact that the GSIS acted as complainant, prosecutor, and judge in the administrative cases does not necessarily mean that it will not be impartial.
Velasco and Molina assailed the CSC Resolution in a Petition for Review with the Court of Appeals, which was docketed as CA-G.R. SP No. 75973. On December 7, 2005, the Court of Appeals rendered its Decision reversing the CSC Resolution, and holding that the lack of the requisite preliminary investigation rendered the formal charges against Velasco and Molina void. The Court of Appeals likewise ruled that the propriety of the preventive suspension has not become moot. Since the preventive suspension emanated from void formal charges, Velasco and Molina are entitled to back salaries. The dispositive portion of the Decision reads:
PREMISES CONSIDERED, the petition is hereby GRANTED. The formal charges filed by the President and General Manager of the GSIS against petitioners, and necessarily, the order of preventive suspension emanating therefrom, are declared NULL AND VOID. The GSIS is hereby directed to pay petitioners' back salaries pertaining to the period during which they were unlawfully suspended. x x x.[5]
PGM Garcia filed a Petition for Certiorari with this Court assailing the Decision of the Court of Appeals in CA-G.R. SP No. 75973. The petition was docketed as G.R. No. 174137, which was consolidated with G.R. No. 157383.
This Court rendered its Decision on the consolidated petitions on August 10, 2010. The dispositive portion of this Court's Decision reads:
WHEREFORE, premises considered, the petition in G.R. No. 157383 is DENIED while the petition in G.R. No. 174137 is DISMISSED, for lack of merit.[6]
This Court held that although the President and General Manager of the GSIS is vested with authority and responsibility to remove, suspend or otherwise discipline GSIS personnel for cause, such power is not without limitations and must be exercised in accordance with Civil Service Rules, which PGM Garcia neglected to do. This Court explained:
Indeed, the CSC Rules does not specifically provide that a formal charge without the requisite preliminary investigation is null and void. However, as clearly outlined above, upon receipt of a complaint which is sufficient in form and substance, the disciplining authority shall require the person complained of to submit a Counter-Affidavit/Comment under oath within three days from receipt. The use of the word "shall" quite obviously indicates that it is mandatory for the disciplining authority to conduct a preliminary investigation or at least respondent should be given the opportunity to comment and explain his side. As can be gleaned from the procedure set forth above, this is done prior to the issuance of the formal charge and the comment required therein is different from the answer that may later be filed by respondents. Contrary to petitioner's claim, no exception is provided for in the CSC Rules. Not even an indictment in flagrante as claimed by petitioner.
This is true even if the complainant is the disciplining authority himself, as in the present case. To comply with such requirement, he could have issued a memorandum requiring respondents to explain why no disciplinary action should be taken against them instead of immediately issuing formal charges. With respondents' comments, petitioner would have properly evaluated both sides of the controversy before making a conclusion that there was a prima facie case against respondents, leading to the issuance of the questioned formal charges. It is noteworthy that the very acts subject of the administrative cases stemmed from an event that took place the day before the formal charges were issued. It appears, therefore, that the formal charges were issued after the sole determination by the petitioner as the disciplining authority that there was a prima facie case against respondents.
To condone this would give the disciplining authority an unrestricted power to judge by himself the nature of the act complained of as well as the gravity of the charges. We, therefore, conclude that respondents were denied due process of law. Not even the fact that the charges against them are serious and evidence of their guilt is — in the opinion of their superior — strong can compensate for the procedural shortcut undertaken by petitioner which is evident in the record of this case. The filing by petitioner of formal charges against the respondents without complying with the mandated preliminary investigation or at least give the respondents the opportunity to comment violated the latter's right to due process. Hence, the formal charges are void ab initio and may be assailed directly or indirectly at anytime.[7] (Emphasis supplied; citations omitted.)
On PGM Garcia's argument that Velasco and Molina waived their right to a preliminary investigation for failure to raise the matter before the GSIS, this Court ruled that a decision held without due process is void ab initio and may be attacked anytime directly or collaterally by means of a separate action, or by resisting such decision in any action or proceeding where it is invoked. Moreover, Velasco and Molina questioned the validity of their preventive suspension in the CSC on the ground of lack of preliminary investigation.
This Court concluded that since Velasco and Molina were preventively suspended in the same formal charges that were declared void, their preventive suspension is likewise invalid.
(2) Two Conflicting Memoranda
In the meantime, after the January 2, 2003 Decision of the Court of Appeals in CA-G.R. SP No. 73170 perpetually restraining PGM Garcia and the GSIS from hearing and investigating the administrative cases against Velasco and Molina, but before said restraining order was affirmed by this Court on August 10, 2010, the GSIS issued two conflicting Memoranda to Velasco:
(a) On June 29, 2004, GSIS Senior Vice-President-Administration Group Concepcion L. Madarang issued a Memorandum informing Velasco (who was elected President of the Kapisanan ng mga Manggagawa sa GSIS or KMG in May 2004) that he could no longer hold the position of GSIS Attorney because of conflict of interest and he should either seek a transfer to another position or go on extended leave of absence for the duration of his term as union president; and
(b) A mere two days later or on July 1, 2004, the GSIS Chief Legal Counsel issued OSVP Office Order No. 04-04, which provided:
Upon request by the SVP, FOG, as required by the exigencies of the service, and in view of the technical supervision and control of the Chief Legal Counsel over Field Operations Attorneys and Lawyers of the System, ATTY. ALBERT M. VELASCO, considering his legal expertise on the System's operations, is temporarily assigned for a period of ninety (90) days to the Zamboanga, Iligan and Cotabato FODs to augment the legal officers in the said FODs due to the surmounting number of legal cases therein and shall conduct legal due diligence of cases pertaining to the System's operating concerns specifically involving housing loan defaults, collection of arrearages, foreclosure proceedings, and other matters requiring legal attention.
He shall submit written reports, with proper recommendation/s, if needed, to the Field Office Manager concerned to whom he shall report directly and who shall sign his Daily Attendance Record (DAR).
Atty. Velasco is allowed cash advances, as needed, subject to reimbursement in accordance with existing auditing and office rules and regulations.
This Order shall take effect immediately and shall remain effective until further notice.[8] (Emphases supplied.)
This second Memorandum did not state that the transfer was because of conflict of interest. On the contrary, it specified Velasco's legal expertise as the reason for the transfer. The Memorandum likewise stated that "(t)his Order shall take effect immediately and shall remain effective until further notice" which contradicts the statement in the very same memorandum that the reassignment is for a fixed period of ninety (90) days.[9] In other words, the duration of the reassignment cannot be said to be definite.
Velasco wrote the GSIS informing the latter of the unmistakable conflict between the two memoranda he received: unless the Memorandum disqualifying him as GSIS Legal Counsel is withdrawn, he cannot assume the Mindanao posting as GSIS Legal Counsel.
In response to Velasco's request for clarification, Lutgardo B. Barbo[10] issued a Memorandum[11] to him on July 9, 2004 stating that "Your reply appears to stonewall or countermand [OSVP Office Order No. 04-04]. It may also show in no uncertain terms your defiance, refusal and deliberate failure to comply with an otherwise lawful order." The Memorandum required Velasco to explain why he should not be administratively dealt with for Insubordination, Misconduct, Conduct Prejudicial to the Best Interest of the Service and/or Refusal to Perform Official Duty. Without clarifying the commencement and the term of Velasco's reassignment other than the vague statement in the July 1, 2004 Order that it "shall take effect immediately and shall remain effective until further notice," the GSIS immediately treated the letter as a defiance warranting an administrative charge.
Notably, the reassignment order was issued despite the fact that the GSIS chief legal counsel had earlier issued a Memorandum[12] dated June 7, 2004 urgently requesting PGM Garcia for the appointment of litigation lawyers in the Legal Services Group (LSG) since three lawyers at the Head Office had either resigned or were promoted. To quote from said Memorandum which was issued less than a month prior to Velasco's reassignment:
We respectfully refer to your kind attention the above-captioned request for the appointment of litigation lawyers for the Legal Services Group (LSG). As you are of course aware, the Litigation Department of the LSG had been operating shorthanded since the resignation of two (2) lawyers handling a substantial amount of litigation work. These are Attys. Michael Miranda, of the Litigation Department, and Gabriel Silvera, of the Corporate Business Department, who resigned at different times last year.
Since the resignation of the said lawyers, the remaining lawyers of [the] Litigation Department have had to bear all the work of these resigned lawyers on top of their already overburdened workload. Please allow me to say sir that the remaining litigation lawyers superbly performed their work, despite their being overworked, without rancor or reproach.
However, with the impending transfer of one of the lawyers of the Litigation Department, Atty. Douglas Marigomen, to the Tagbilaran Branch where he has been appointed as Branch Manager, the Litigation Department will be unable to function to the point of being crippled. The remaining litigation lawyers will, to be sure, be unable to cope with the workload of Atty. Marigomen, which will be apportioned among them. Moreover, there has been an influx of new cases filed against GSIS which require immediate and urgent attention.
In view of the foregoing, we respectfully entreat you to accede to our request for the immediate appointment of two (2) lawyers for the Litigation Department to fill up the slot or item of Atty. Miranda and that to be vacated by Atty. Marigomen. We sincerely hope for your kind attention on this matter. (Emphases supplied.)
Even further highlighting the fact that Velasco's July 1, 2004 reassignment to the Mindanao field offices was effected despite a continued shortage of lawyers in the GSIS main office is OSVP Order No. 05-04[13] issued on July 5, 2004 by the chief legal counsel detailing one of the field lawyers to the main office. The pertinent portion of said Order reads:
In the exigency of the service arising from the extreme lack of manpower in the LSG due to the resignation of Attys. Michael Miranda and Gabriel Silvera, as well as the promotion of Attys. Douglas Marigomen and Lourdes Dorado as Branch Managers of the Tagbilaran and Batangas Branches, respectively, and the impending retirement of Atty. Julita Aningat, ATTY. PEACHY ANNE V. TIONGSON-DUMLAO, is hereby temporarily detailed at the Litigation Department in order to perform the duties and responsibilities appurtenant to the position of the abovementioned lawyers.
The Order shall take effect immediately and shall remain effective until the permanent litigation lawyers are duly appointed by the President and General Manager. (Underscoring supplied.)
(3) Velasco's allegedly Grossly Discourteous Memorandum
Velasco, acting as president of the KMG, issued a memorandum dated June 28, 2004 to GSIS SVP Leticia P. Sagcal with reference to her memorandum prohibiting employees from participating in any "UNION ACTIVITIES during office hours." Citing the Collective Negotiation Agreement between the GSIS and the KMG which provides that "(t)he GSIS Management agrees and hereby authorizes the duly elected executive and legislative assembly officers of the KMG, including the chairpersons of KMG standing committees to perform the functions related to KMG activities on official time," Velasco demanded the recall of the Memorandum of SVP Sagcal.
In response, the GSIS issued a memorandum requiring Velasco to "submit your Counter-Affidavit/Comment under Oath within three (3) days from receipt hereof explaining why you should not be administratively dealt with for misconduct, discourtesy, insubordination and/or conduct prejudicial to the best interest of the service."[14] Velasco issued his reply stressing that he wrote the letter as a duly elected union representative asserting a contractual right.
(4) RTC Case / Formal Charges / Removal from the Rolls
In connection with the two conflicting memoranda disqualifying Velasco as GSIS Legal Counsel and assigning him as GSIS Legal Counsel in Mindanao, Velasco filed with the Regional Trial Court (RTC) of Manila a Petition for Certiorari and Prohibition seeking to prohibit the GSIS from enforcing the following: (1) OSVP Order No. 04-04 dated July 1, 2004 assigning him to the Zamboanga, Iligan, Cotabato field offices; (2) July 7, 2004 Memorandum directing him to explain his letter-reply to SVP Sagcal; and (3) July 9, 2004 Memorandum directing him to explain his failure to comply with the Reassignment Order.
The RTC of Manila initially issued a 72-hour TRO which was later extended to twenty days. However, the Petition was eventually dismissed by the RTC of Manila on the ground of improper venue, said court ratiocinating that the case should be filed with the RTC of Pasay City where the principal office of the GSIS is located. During the pendency of said case, the GSIS nonetheless initiated the two assailed Formal Charges against Velasco:
(1) The Formal Charge dated August 10, 2004 signed by PGM Garcia, docketed as ADM. Case No. 04-009 for Gross Discourtesy in the Course of Official Duty in connection with Velasco's letter to SVP Sagcal;[15] and
(2) The Formal Charge dated August 13, 2004 signed by PGM Garcia, docketed as ADM. Case No. 04-010 for Refusal to Perform Official Duty; Insubordination; Misconduct; Conduct Prejudicial to the Best Interest of the Service in connection with the two conflicting Memoranda.[16]
During the pendency of Velasco's Motion for Reconsideration of the RTC Resolution dismissing the Petition for improper venue, and while Velasco continued to report to his post in the Head Office, the GSIS issued the assailed September 1, 2004 letter[17] to Velasco dropping him from the rolls of the GSIS on the claim that allegedly he has been continuously absent without leave (AWOL) for thirty (30) days.
(5) Petition for Certiorari with the Court of Appeals
On September 13, 2004, Velasco withdrew his Motion for Reconsideration before the RTC of Manila which favorably acted on said withdrawal in an Order[18] dated September 14, 2004. On September 15, 2004, Velasco thereafter filed a Petition for Certiorari and Prohibition with Prayer for Temporary Restraining Order and/or Writ of Preliminary Injunction with the Court of Appeals, assailing GSIS OSVP Office Order No. 04-04 reassigning him to Zamboanga City; the Formal Charge docketed as Adm. Case No. 04-010 for Insubordination; the Formal Charge docketed as Adm. Case No. 04-009 for Gross Discourtesy in the Course of Official Duty; and the letter dated September 1, 2004 dropping Velasco from the GSIS roll of employees.
On September 17, 2004, the Court of Appeals issued a Resolution[19] granting Velasco's prayer for a 60-day TRO enjoining the GSIS from further implementing the assailed acts. Petitioner GSIS however refused to implement the TRO and asserted that, with Velasco's dropping from the rolls, injunction was improper to restrain acts that had become fait accompli.
On November 30, 2010, the Court of Appeals issued the assailed Decision, the dispositive portion of which read:
WHEREFORE, premises considered, the petition is hereby GRANTED. The Order issued reassigning petitioner to Zamboanga; the administrative charges filed against petitioner docketed as Adm. Case No. 04-010 for Refusal to Perform Official Duty, etc. and Adm. Case No. 04-009 for Gross Discourtesy in the Course of Official Duty; and the dropping of petitioner from the GSIS roll of employees are hereby declared void. Accordingly, the GSIS is hereby directed to effect the reinstatement of petitioner to his former position or, if it is no longer feasible, to another position of equivalent rank and compensation. It is likewise ordered to pay petitioner his back salaries pertaining to the period during which he was unlawfully dropped from employees' roll.[20]
The GSIS filed a Motion for Reconsideration, which was denied by the Court of Appeals in its Resolution dated April 1, 2011.
The GSIS then filed the present Petition for Review on Certiorari, raising the following grounds for the allowance of the same: (a) that Velasco is guilty of forum shopping; (b) that the non-exhaustion of administrative remedies is fatal to Velasco's Petition for Certiorari before the Court of Appeals; and (c) that petitioner is allegedly justified in its actions against Velasco since GSIS lawyers are precluded from joining the employees' organization or union according to a ruling issued by the Public Sector Labor-Management Council (PSL-MC).[21]
Forum Shopping
Petitioner alleged that Velasco is guilty of forum shopping for filing a Petition for Certiorari with the Court of Appeals (a) while his motion for reconsideration in Civil Case No. 04110451 was still pending before the RTC of Manila, Branch 22; and (b) during the pendency of CA-G.R. SP No. 86130 with another division of the appellate court.
According to jurisprudence, forum shopping is the act of a party against whom an adverse judgment has been rendered in one forum, of seeking another (and possibly favorable) opinion in another forum other than by appeal or special civil action of certiorari, or the institution of two (2) or more actions or proceedings grounded on the same cause on the supposition that one or the other court might look with favor upon the party. Where the elements of litis pendentia are not present or where a final judgment in one case will not amount to res judicata in the other, there is no forum shopping.[22]
Based on the facts on record, we see no reason to disturb the Court of Appeals' ruling that respondent Velasco was not guilty of forum shopping as succinctly explained in its November 30, 2010 Decision:
In the case at bar, although petitioner filed a petition for prohibition before the RTC and, thereafter, filed substantially the same petition before this Court, the fact remains that before filing the instant petition, he first filed a notice of withdrawal of his Motion for Reconsideration with the RTC which was granted. It is also worthy to note that while both petitions filed by petitioner before the RTC and this Court assail his reassignment Order to Zamboanga, the petition before US differs because petitioner is, in addition, assailing the formal charges against him as well as his severance from employment. Hence, petitioner could not be said to have resorted to two different courts for the purpose of obtaining the same relief.
To further bolster their allegation that petitioner is guilty of forum shopping, respondents aver that a similar case was also filed by [Velasco] against respondent Garcia in this Court docketed as CA-G.R. SP No. 86130 which was already dismissed on September 17, 2004.
WE perused the September 17, 2004 Resolution of this Court in CA-G.R. SP No. 86130 and found that the cause of action and relief prayed for by herein petitioner in that case were not the same as in this petition. In this case, petitioner prays to declare OSVP Order No. 04-04 transferring petitioner to Zamboanga; the formal charges against petitioner dated August 10, 2004 and August 13, 2004; and the letter informing petitioner that he is already dropped from GSIS roll of employment as void and illegal. On the other hand, the objective of the action in CA-G.R. SP No. 86130 was to declare as illegal and void respondent Garcia's Office Order dated June 25, 2004 by which the respondent allegedly usurped the petitioner's power under the law and the collective negotiation agreement to choose a representative to the GSIS Personnel Selection and Promotion Board and to prohibit the respondent from convening said Boards from transacting business without the legitimate union representative.[23] (Emphases supplied.)
We have held that what is truly important to consider in determining whether forum shopping exists or not is the vexation caused the courts and parties-litigants by a party who asks different courts and/or administrative agencies to rule on the same or related causes and/or grant the same or substantially the same reliefs, in the process creating the possibility of conflicting decisions being rendered by different fora upon the same issues.[24] In this instance, there was no danger that two different fora might render conflicting decisions as the petition before the Court of Appeals was the only case pending which involved the specific issues raised therein.
Exhaustion of Administrative Remedies
and the Alleged Illegality of Velasco's
Union Involvement
We discuss the second and third issues raised by petitioner jointly as the resolution of the procedural issue of exhaustion of administrative remedies hinges on the substantive issue of whether or not petitioner's actions and issuances involving respondent Velasco were patently illegal and/or tainted with bad faith.
Petitioner claims that Velasco violated the doctrine of exhaustion of administrative remedies by filing a Petition for Certiorari and Prohibition with the Court of Appeals instead of assailing his dismissal with the CSC. The Court of Appeals ruled that the assailed GSIS issuances were patently illegal and, hence, the case falls within at least one of several exceptions to the doctrine on exhaustion of administrative remedies. The exceptions, according to Province of Zamboanga del Norte v. Court of Appeals,[25] are: (1) when there is a violation of due process; (2) when the issue involved is purely a legal question; (3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction; (4) when there is estoppel on the part of the administrative agency concerned; (5) when there is irreparable injury; (6) when the respondent is a department secretary whose acts, as an alter ego of the President, bears the implied and assumed approval of the latter; (7) when to require exhaustion of administrative remedies would be unreasonable; (8) when it would amount to a nullification of a claim; (9) when the subject matter is a private land in land case proceedings; (10) when the rule does not provide a plain, speedy and adequate remedy; (11) when there are circumstances indicating the urgency of judicial intervention, and unreasonable delay would greatly prejudice the complainant; (12) when no administrative review is provided by law; (13) where the rule of qualified political agency applies; and (14) when the issue of non-exhaustion of administrative remedies has been rendered moot.
After a judicious examination of the records, we uphold the Court of Appeals' ruling that the present case falls within the recognized exceptions to the rule regarding exhaustion of administrative remedies. Before going into the merits of the case, we dispel the procedural concerns raised in the dissent.
The Dissenting Opinion submits, citing Merida Water District v. Bacarro,[26] that the test to determine whether or not there is patent illegality is "whether there exists a factual issue to be resolved to arrive at the conclusion of illegality."[27] Accordingly, the notion of patent illegality in the case at bar is negated by the presumption of good faith on the part of the GSIS officers involved, and the presumption of regularity of official acts. Determination of bad faith and irregularity are questions of fact, which should allegedly bar direct recourse before the courts in a special civil action.
The Court's decision in Republic of the Philippines v. Lacap[28] explained the rationale behind the doctrine of exhaustion of administrative remedies in this wise:
The general rule is that before a party may seek the intervention of the court, he should first avail of all the means afforded him by administrative processes. The issues which administrative agencies are authorized to decide should not be summarily taken from them and submitted to a court without first giving such administrative agency the opportunity to dispose of the same after due deliberation.
Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary jurisdiction; that is, courts cannot or will not determine a controversy involving a question which is within the jurisdiction of the administrative tribunal prior to the resolution of that question by the administrative tribunal, where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact. (Emphasis supplied, citations omitted.)
In Merida, the factual question involved was the determination of the current water rate from which the allowable 60% increase can be computed in accordance with existing rules and regulations. Obviously, that was a highly technical matter that required the special knowledge and expertise of the proper administrative agency to resolve. The issue of whether petitioner GSIS's memoranda and issuances against respondent Velasco were attended by bad faith is hardly the kind of "technical and intricate" factual matter that requires prior resolution by an administrative body with special expertise or knowledge. To be sure, in Department of Finance v. Dela Cruz, Jr.,[29] we held that a case that assails the mass detail and reassignment of DOF employees as "patently illegal, arbitrary, and oppressive" falls among the exceptions to the doctrine of exhaustion of administrative remedies and thus, we upheld said employees' direct recourse to the courts as there was no need to resort to remedies with the CSC. In another example of bitterly contested litigation between the parties in the case at bar, The Board of Trustees of the Government Service Insurance System v. Velasco,[30] we held that the RTC, not the CSC, had jurisdiction over a petition for prohibition with prayer for writ of preliminary injunction even if it involved a civil service matter. Verily, the principle that all personnel actions must first be referred to the CSC is not an iron-clad rule.
The dissent's reliance on Corsiga v. Defensor[31] is misplaced as no court therein issued a judgment on the merits. What was appealed to the Court was a preliminary order denying a motion to dismiss on jurisdictional grounds. Even more importantly, the Court in Corsiga expressly stated that the employee failed to present evidence of the invalidity of his reassignment and for that reason the reassignment was presumed regular. In the present case, the Court of Appeals found, after due proceedings, that respondent duly proved his factual allegations while petitioner failed to refute the evidence presented against it. There is no cause for the dissent to assert that petitioner was denied due process for it had every opportunity before the Court of Appeals to submit its countervailing evidence but petitioner chose to present purely technical objections to respondent's petition and pinned its defense on the presumptions of good faith and of regularity in the performance of official duty which are both rebuttable by proof.
This Court cannot accept the proposition that a mere allegation of good faith by the issuers of the assailed official acts automatically takes the disputed action out of its being patently illegal and thereby necessitates the application of the doctrine of exhaustion of administrative remedies. Bad faith and irregularities can be evident from the assailed acts themselves, in which case the courts should not simply tum a blind eye on the ground that it is the administrative agencies which must take the first look. It is precisely in cases when the bad faith and irregularity are so blatant that immediate recourse to the courts is necessary in order to nullify a capricious and whimsical exercise of authority.
This Court finds no reversible error on the part of the Court of Appeals in making a finding of illegality and bad faith in the GSIS's actions against Velasco based on the undisputed facts on record.
Petitioner alleged that "the Court of Appeals failed to consider that in all the cases filed by respondent, his basic allegation stemmed from just one single act, i.e., his illegal activities as union president of the KMG which led to the GSIS's taking of necessary measures to protect its interest."[32]
Interestingly, in the decision of the Court of Appeals in CA-G.R. SP No. 73170, which was affirmed by this Court in the consolidated cases, G.R. Nos. 157383 and 174137, the GSIS's officers were perpetually restrained from hearing and investigating the administrative case against Velasco and Molina for acts allegedly in betrayal of the confidential nature of their positions and in defiance of the Rules and Regulations on Public Sector Unionism, without prejudice to pursuing the same with the CSC or any other agency of the government as may be allowed by law. Even then the appellate court recognized that the investigation should not be done by the GSIS but by the CSC or any other impartial and disinterested tribunal. Yet, the GSIS undertook to investigate Velasco on new formal charges in this case, springing from essentially similar grounds of breach of confidentiality of position and union activities. We now examine these new formal charges.
On the issue of the validity of the reassignment order, upon which the charge of Insubordination depends, we sustain the Court of Appeals' factual finding that the GSIS never denied, much less refuted, the various memoranda presented by Velasco proving that there was a dire shortage of lawyers in the Manila Head Office at the time of his reassignment to the Mindanao field offices. There is nothing in the records to show that other lawyers from the Head Office were also sent out to augment the legal staff in the field offices. On the contrary, Velasco demonstrated that due to the extreme lack of manpower in the Head Office a lawyer from the one of the field offices was temporarily detailed in the Head Office until the vacancies therein were filled. Although the first paragraph of the reassignment order stated that it was for a period of ninety (90) days, the last paragraph states that the order shall take effect immediately and shall remain effective until further notice. What is indubitable from the records was that Velasco was being singled out for indefinite reassignment due to his election as union president. In all, this Court concurs with the appellate court that there was "no valid cause for the reassignment" and "the reassignment order was issued to prevent [Velasco] from actually and aggressively leading the union['s] activities and in the process weaken unionism in [the] GSIS main office."[33] As Velasco's reassignment is invalid, there was no cause to charge him with Insubordination.
As for the second formal charge, the difficulty of finding an actionable case of gross discourtesy from the following letter can be considered by the courts in determining whether there is gross abuse of authority on the part of petitioner:
1 July 2004
SVP LETICIA P. SAGCAL
GSIS Social Insurance Group
Re: Memorandum dated 28 June 2004.
Dear SVP Sagcal,
In behalf of the Kapisanan ng mga Manggagawa sa GSIS (KMG), we bring to your attention the above subject memorandum which prohibits employees from "participation in any UNION ACTIVITIES".
Please be reminded that under Section 3 of the GSIS-KMG Collective Negotiation Agreement for 2002-2005 it is provided as follows:Section 3. Authorized KMG Activities on Official Time. The GSIS Management agrees and hereby authorizes the duly elected executive and legislative assembly officers of the KMG, including the chairpersons of KMG standing committees to perform the functions related to KMG activities on official time, subject to the following conditions:
- Only those authorized in writing from time to time by the KMG President or his duly authorized representatives shall enjoy the privilege; and
- The GSIS Management likewise agrees that attendance by duly authorized union representatives to workers' education, seminars, meetings, conventions, conferences shall be allowed on Official Time, subject also to the said two (2) conditions. x x x
Additionally, our CNA likewise states, and we quote the pertinent part:ARTICLE V
NO STRIKE NO LOCKOUTGSIS Management shall also respect the rights of the employees to air out their sentiments through peaceful concerted activities during allowable hours, subject to reasonable office rules and regulations on the use of office premises.
Clearly, your memorandum absolutely prohibiting participation of union members, including duly elected executive, legislative officers, and chairpersons of standing committees, from participating in union activities is a gross and patent violation of our CNA. Peaceful concerted activities is also [permissible], subject only to reasonable office rules and regulations, and is not absolutely prohibited by law, and neither can you prohibit the same.
We demand that your (sic) recall within two (2) days your unlawful memorandum dated 28 June 2004. Your failure to do so will compel us to file the corresponding administrative and criminal complaints against you before the appropriate body.[34]
Even without the presentation of evidence before an administrative body, the existence of bad faith and the arbitrary and despotic abuse of power can easily be gleaned from an administrative case of gross discourtesy ensuing from the mere issuance of the above letter by a union president. The exercise of even a statutorily enshrined power when done in a whimsical and capricious manner amounting to lack of jurisdiction is properly assailed in a special civil action under Rule 65 before the courts.
In any event, the merits of the formal charges of Insubordination and Gross Discourtesy against Velasco need not even be scrutinized by the Court. Despite initiating administrative investigations in relation to the Formal Charge docketed as Adm. Case No. 04-010 (for Insubordination, etc.) and the Formal Charge docketed as 04-009 (for Gross Discourtesy), the GSIS never issued a decision or ruling in these administrative cases. In the end, Velasco was dropped from the rolls for his purported 30 days continuous absence without authorized leave, a separate and distinct matter, not included in the charges stated in the two formal charges pending investigation.
The Court cannot fault respondent for claiming that his separation from the service was without valid ground and done without due process. Furthermore, this Court fully agrees with the Court of Appeals that Velasco's dropping from the rolls was unwarranted when he did not abandon his post.
Petitioner GSIS did not dispute the fact that Velasco continued to report at the Head Office while he was seeking clarification from the GSIS regarding its conflicting memoranda and while various contentious issues between the parties were pending before the courts and the PSL-MC. The records bear out that correspondence and memoranda were personally served on Velasco by the GSIS, including the notice of his dropping from the rolls, since he could be readily found at his work station in the Head Office. On the other hand, the records are bereft of proof that the GSIS in good faith gave notice to Velasco that he would be considered absent without authorized leave for his failure to report for duty in the Mindanao field offices. Significantly, the GSIS itself narrated in the petition that Velasco was able to secure from the RTC a 72-hour TRO on July 20, 2004 that was extended for another 20 days, giving him additional justification to defer taking up his Mindanao posting while his standing disputes with management were pending litigation.
In Batangas State University v. Bonifacio,[35] a teacher was dropped from the rolls by the petitioner state university for failure to immediately report to his new detail at the office of the university president and instead he continued to fulfill his duties as a teacher and coach of the basketball team. We held that where there is no abandonment or clear proof of the intention to sever the employer-employee relationship, an employee cannot be dropped from the rolls. Furthermore, despite the proviso in Section 63, Rule XVI of the Omnibus Civil Service Rules and Regulations that an employee continuously absent without approved leave for at least thirty (30) days may be dropped from the rolls without prior notice, we ruled that there was bad faith on the part of the employer and a violation of an employee's rights to security of tenure and due process when the employer ignored the employee's presence in the school, did not give him the opportunity to explain his purported absences and thereafter peremptorily dropped him from the rolls.
Certainly, the gross violation of Velasco's due process rights in the matter of his dropping from the rolls not only contribute to the patent illegality of his separation from the service but is in itself a recognized exception to the rule on exhaustion of administrative remedies.[36]
The Dissenting Opinion rejects the applicability of Batangas State University, and argued, echoing the words of petitioner, that while there was good faith on the part of the employee in BSU to report to his new detail, Velasco showed bad faith when he "wrote a letter conveying his resistance to the assignment order." The Court should not adopt petitioner's arrogant stance of treating a mere clarificatory letter as an act of defiance and gross discourtesy. The despotic notion that an employee may not even ask for clarification of inconsistent orders precisely manifests the grave abuse of discretion on the part of petitioner. It shows very clearly that petitioner is bent on dismissing Velasco for whatever imagined wrong it can throw at him, and force. him to file a case for each new accusation.
Be that as it may, the Dissenting Opinion misreads the significance of BSU, which is cited to emphasize that an employee who reports for work cannot be summarily dropped from the rolls for being "continuously absent without approved leave for at least 30 calendar days." BSU held that ignoring said employee instead of summoning him to explain his alleged absences does not only show bad faith, but is itself a violation of the constitutional guarantees of security of tenure and due process. Violation of due process is the first and foremost exception to the doctrine of exhaustion of administrative remedies in settled jurisprudence other than BSU, making it entirely irrelevant that there was prior resort to the CSC in BSU.
The dissent asserts that bad faith is never presumed; it is a conclusion to be drawn from the facts.[37] However, intent, being a state of mind, is rarely susceptible of direct proof, but must ordinarily be inferred from the facts.[38] Consequently, when the facts – namely the acts from which bad faith can be inferred – already appears on record and are uncontroverted, the legal consequence of such acts becomes a question of law which falls under the exceptions to the rule on exhaustion of administrative remedies as well. A question of law exists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set of facts; or when the issue does not call for an examination of the probative value of the evidence presented, the truth or falsehood of facts being admitted.[39]
Petitioner's improper motive in its actions and issuances against respondent is plainly apparent even in its submissions to this Court. In the petition, the GSIS averred it "lost all faith and confidence in respondent when he ran for and was elected KMG President"[40] and that it was Velasco's purported "illegal activities as union president of the KMG which led to the GSIS's taking of necessary measures to protect its interest."[41] Indeed, this history of antagonism between Velasco and the GSIS's previous leadership is a matter of record not only in this case but also in G.R. Nos. 157383 and 174137, which arose from the charges of misconduct against Velasco for participating and/or leading protests against management and former GSIS President Winston F. Garcia for alleged corruption.
As the GSIS admits in the petition, it was Velasco himself who submitted the issue of his eligibility to hold the position of union president for resolution by the PSL-MC to settle his dispute with management.[42] However, the GSIS pre-empted the ruling of the PSL-MC and issued the reassignment order, the formal charges of Insubordination and Gross Discourtesy and the order dropping Velasco from the rolls long before the PSL-MC could dispose of the matter in its Resolution No. 02, s. 2005 dated May 4, 2005, now being cited by the GSIS as its main basis for the legality of its actions against Velasco. It is the height of injustice and absurdity to allow the GSIS to now rely on this issuance when it did not even exist in 2004 when the GSIS issued the assailed memoranda and orders that are the subject matter of this case.
It bears repeating as well that the PSL-MC merely ruled that lawyers of the GSIS Legal Services Group are ineligible to join and hold elective positions in the union.[43] There was no statement in PSL-MC Resolution No. 02, s. 2005 that the holding of a position in the union was a ground to discipline or dismiss Velasco. Even in the GSIS's Memorandum dated June 29, 2004 advising Velasco of his inelibility to hold the position of GSIS Attorney while serving as union president on the ground of conflict of interest, there was no mention of any disciplinary action to be taken but only that Velasco was given the options to either (a) seek a transfer to another position not covered by the prohibition or (b) go on extended leave of absence for the term of his office, subject to existing office rules and regulations. Yet, despite the fact that the GSIS did not see fit to discipline or sanction Velasco for his union activities in the June 29, 2004 Memorandum, it nonetheless engaged in a series of actions to harass Velasco, to keep him away from the Head Office (by inducing him to seek a transfer or to take a leave and, failing in that, reassigning him) and to eventually cause Velasco's separation from the service on whatever ground and by whatever means it could conceive.
Petitioner's assertion that the new formal charges against Velasco and his dismissal from the service are measures to protect the interests of the GSIS from Velasco's purportedly illegal activities as union president likewise violate Velasco's right to due process as he is being indirectly charged for something not mentioned in the Formal Charges. To reiterate, Velasco was never administratively charged for what the GSIS termed as his "illegal" service as union president and therefore, Velasco could not have been validly dismissed from the service on that ground. Moreover, the GSIS could not have possibly relied on the aforementioned PSL-MC Resolution to justify Velasco's dismissal or separation from the service as the same was issued more than eight (8) months after Velasco had already been dropped from the rolls.
Prior to the resolution by the PSL-MC of the question of Velasco's eligibility to join the union and serve as union president, the GSIS had no basis to act against Velasco on that ground other than the opinion of its own chief legal counsel. For this reason, the GSIS was bound to respect in good faith Velasco's election as union president of the KMG until the PSL-MC could issue its opinion on the grievance raised by Velasco. As the Court of Appeals correctly emphasized, "[t]he right to unionize or to form organizations is now explicitly recognized and granted to employees in both the governmental and private sectors"[44] and that the Bill of Rights itself demands that such right shall not be abridged.[45]
In the private sector, the Court has held that the reassignment of an employee is illegal if it is used as a subterfuge by the employer to rid himself of an undesirable worker or when the real reason is to penalize an employee for his union activities and when there is no genuine business urgency that necessitated the transfer.[46] Neither does the Court condone a reassignment done by a private employer on the pretext of eventually removing an employee with whom the employer felt "uncomfortable" because it doubted the employee's loyalty.[47] This Court will not be induced into setting a precedent that a government employer can hide behind the presumption of regularity in the performance of official duty in spite of evidence of illegal, discriminatory and oppressive acts against labor extant in the records.
In closing, it is worth recalling that the non-exhaustion of administrative remedies is a procedural matter that, time and again, this Court has held should be set aside in the interest of substantial justice.[48] This is particularly true in this case when the application of said doctrine would in effect deny respondent reliefs despite his meritorious claim. The insistence in the Dissenting Opinion that the Court of Appeals should have ignored petitioner's manifest display of arrogance and disregard of court orders on the ground that bad faith is a factual issue misses the basic principle that the Court of Appeals, unlike this Court, is mandated to rule on questions of fact.[49] The Dissenting Opinion's proposed reversal of the factual findings and the judgment on the merits of the Court of Appeals on the ground of a supposed procedural misstep is unjust and unduly burdens a party already aggrieved by a whimsical, capricious, and despotic abuse of power with a circuitous and ineffectual remedy. Accordingly, this Court holds that the Court of Appeals properly decided the substantive issues when the evidence it needed to resolve the same was already before it.
WHEREFORE, the Petition for Review on Certiorari is DENIED. The Court of Appeals Decision dated November 30, 2010 and Resolution dated April 1, 2011 in CA-G.R. SP No. 86365 are AFFIRMED.
SO ORDERED.
Sereno, C.J., (Chairperson), Del Castillo, Perlas-Bernabe, and Caguioa, JJ., concur.
[1] Later affirmed by this Court with finality; Garcia v. Molina, 642 Phil. 6 (2010).
[2] Rollo, pp. 34-60; penned by Associate Justice Priscilla J. Baltazar-Padilla with Associate Justices Fernanda Lampas Peralta and Manuel M. Barrios concurring.
[3] Garcia v. Molina, supra note 1 at 14.
[4] Id. at 15.
[5] Id. at 16.
[6] Id. at 24.
[7] Id. at 21-22.
[8] CA rollo, p. 24.
[9] Id.
[10] Manager, Investigation Unit, Office of the President and General Manager.
[11] Rollo, p. 67.
[12] CA rollo, pp. 44-45.
[13] Id. at 43.
[14] Rollo, p. 68.
[15] CA rollo, pp. 28-29.
[16] Id. at 25-26.
[17] Id. at 27.
[18] Id. at 117.
[19] Id. at 47-48.
[20] Rollo, p. 60.
[21] The Public Sector Labor-Management Council (PSL-MC) was created by virtue of Executive Order No. 180 (June 1, 1987) and is composed of the Chairperson of the Civil Service Commission and the Secretaries of the Department of Labor and Employment, the Department of Finance, the Department of Justice, and the Department of Budget and Management.
[22] Bangko Silangan Development Bank v. Court of Appeals, 412 Phil. 755, 770-771 (2001).
[23] Rollo, pp. 48-49.
[24] Kapisanang Pangkaunlaran ng Kababaihang Potrero, Inc. v. Barreno, 710 Phil. 654, 660 (2013).
[25] 396 Phil. 709, 718-719 (2000).
[26] 588 Phil. 505 (2008).
[27] Dissenting Opinion, p. 4.
[28] 546 Phil. 87, 96-97 (2007).
[29] 767 Phil. 611, 619-620 (2015).
[30] 656 Phil. 385, 395-396 (2011). In said case, Velasco and Molina assailed before the RTC the resolutions of the GSIS disqualifying them from receiving their step increment benefits during the pendency of their administrative cases beyond the period of their preventive suspension (which arose from the same incident that was the subject matter of G.R. Nos. 157383 and 174137). The Court affirmed the RTC decision declaring these resolutions null and void.
[31] 439 Phil. 875 (2002); Dissenting Opinion, p. 7.
[32] Rollo, p. 17.
[33] Id. at 56.
[34] CA rollo, pp. 39-40.
[35] 514 Phil. 335 (2005).
[36] Province of Zamboanga del Norte v. Court of Appeals, supra note 25.
[37] Dissenting Opinion, p. 4.
[38] Feeder International Line, Pte., Ltd. v. Court of Appeals, 274 Phil. 1143, 1152-1153 (1991).
[39] Alfornon v. Delos Santos, G.R. No. 203657, July 11, 2016, 796 SCRA 194, 201; Bukidnon Doctors' Hospital, Inc. v. Metropolitan Bank & Trust Co., 501 Phil. 516, 526 (2005), citing Republic v. Sandiganbayan, 425 Phil. 752, 765 (2002).
[40] Rollo, p. 29.
[41] Id. at 17.
[42] Id. at 23; See also PSL-MC Resolution No. 02, s. 2005.
[43] Parenthetically, in the early case of GSIS v. GSIS Supervisor's Union (160-A Phil. 1066, 1083-1084 [1975]), the Court held that the legal staff of different government owned or controlled corporations although under the Government Corporate Counsel and embraced within the Civil Service Law are not absolutely prohibited from membership in labor unions as long as such labor unions do not impose the obligation to strike or join strikes on its members. However, as the validity of PSL-MC Resolution No. 02, s. 2005 is not an issue in this case, we refrain from passing upon the correctness of its legal reasoning in declaring lawyers of the GSIS Legal Services Group as ineligible to join the union.
[44] Rollo, p. 56, citing Trade Unions of the Philippines and Allied Services v. National Housing Corporation, 255 Phil. 33, 39 (1989).
[45] Id., citing Section 8, Article III of the 1987 Constitution which provides that "[t]he right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged."
[46] See Yuco Chemical Industries, Inc. v. Ministry of Labor and Employment, 264 Phil. 338, 341-342 (1990).
[47] See Pocketbell Philippines, Inc. v. National Labor Relations Commission, 310 Phil. 379, 390 (1995).
[48] See, for example, Paje v. Casiño, 752 Phil. 498, 544 (2015); Silva v. Mationg, 531 Phil. 324, 336 (2006).
[49]