Bolodo v. Department of National Defense and Civil Service Commission

FIRST DIVISION

[G.R. No. 212086. April 23, 2018.]

JUDITH DV. BOLODO, petitioner, vs. DEPARTMENT OF NATIONAL DEFENSE AND CIVIL SERVICE COMMISSION, respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution datedApril 23, 2018which reads as follows: HTcADC

"G.R. No. 212086 (Judith DV. Bolodo v. Department of National Defense and Civil Service Commission).

This is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court over the March 10, 2014 Decision 2 of the Court of Appeals (CA) in CA-G.R. SP No. 126065 which affirmed the November 8, 2011 Decision 3 and July 17, 2012 Resolution 4 of respondent Civil Service Commission (CSC) affirming with modification the Resolutions dated May 24, 2007 5 and January 8, 2010 6 of respondent Department of National Defense (DND) which found petitioner Judith DV. Bolodo (Bolodo) guilty of the administrative offense of Gross Misconduct and dismissed her from the service.

The Facts

Bolodo was a psychologist (civilian employee) of the Medical Services Section of the Fort Bonifacio General Hospital (FBGH) in Fort Andres Bonifacio, Makati City.

A Letter-Complaint from the Commanding Officer of the FBGH accused Bolodo of committing "nefarious activities" in the performance of her duty, which the latter denied in her Answer. After an investigation, the Army Support Command (ASCOM) issued a report, recommending that Bolodo be suspended for one (1) month without pay and not be allowed a re-assignment to FBGH. 7

Upon review of the case, the Office of the Army Provost Marshal (OAPM) set aside ASCOM's recommendation and recommended that Bolodo be separated from the service without prejudice to separation benefits. The OAPM found Bolodo liable for Grave Misconduct and/or anomalous activities pursuant to Circular 16, General Headquarters, Armed Forces of the Philippines (AFP) dated October 1, 1991 (Rules of Procedure in Handling Administrative Cases against Civilian Personnel in the AFP). 8

The case was elevated to the Office of the Army Judge Advocate (OAJA) which affirmed the OAPM's recommendation and proposed the creation of a board that would hear the case. The Deputy Chief of Staff for Personnel, however, commented that Bolodo was not formally charged with the offense. Hence, a formal charge of Gross Misconduct was filed against her for: (a) demanding and receiving a Lacoste bag from 2Lt. Leonardo L. Buhay (Buhay), an applicant for Call to Active Duty (CAD) for OPC C1 45-02, in consideration of passing the neuro-psychiatric examination, (b) maltreatment of another applicant who worked unremunerated as her domestic servant, (c) absenteeism, (d) tardiness and (e) rumor-mongering. Bolodo denied these charges in her Counter-Affidavit. 9

After further investigation, the Office of the Provost Marshall General (OPMG) issued a report recommending Bolodo's separation from service without prejudice to her entitlement to retirement benefits. This recommendation, endorsed by officials of the AFP, as well as the previous recommendations issued by the different offices of the AFP, were thereafter referred to the DND for final decision. 10 CAIHTE

The DND's Ruling

The DND found Bolodo guilty of Gross Misconduct and dismissed her from the service, for demanding and accepting one (1) Lacoste bag from Buhay as a gift in return for the latter's passing the neuro-psychiatric examination, in violation of Section 52 (A), paragraph 11, 11 Rule IV of the Uniform Rules on Administrative Cases, in relation to Section 3, paragraph (b) 12 of Republic Act (RA) No. 3019. 13 DND dismissed the other charges for lack of evidence.

Bolodo's motion for reconsideration was subsequently denied by the DND.

The CSC's Ruling

The CSC dismissed Bolodo's appeal but modified the DND's Resolutions, disposing as follows:

WHEREFORE, the appeal of Judith DV. Bolodo is hereby DISMISSED. However, the appealed Resolutions of the DND are MODIFIED to the extent that Bolodo is found GUILTY of Section 52, 9 (A), Rule IV (Penalties) of the Uniform Rules on Administrative Cases in the Civil Service (URACCS), (re: Receiving for personal use of a fee, gift or other valuable thing in the course of official duties or in connection therewith when such fee, gift or other valuable thing is given by any person in the hope or expectation of receiving a favor or better treatment than that accorded to other persons, or committing acts punishable under the anti-graft laws). She is imposed the penalty of dismissal from the service including its accessory penalties of cancellation of Civil Service eligibility, forfeiture of retirement benefits and perpetual disqualification from holding public office and bar from taking civil service examination. The matter pertaining to 2Lt. Leonardo L. Buhay is referred, for appropriate action, to the Office of the Deputy Ombudsman for the Military. 14

The CSC denied Bolodo's motion for reconsideration.

The CA's Ruling

The CA dismissed Bolodo's appeal and affirmed the CSC's decision.

Hence, this petition.

Bolodo's Petition

Bolodo claims that her guilt was not proven by substantial evidence. She asserts that:

(a) She did not demand or receive the bag from Buhay. It was given to her by one Gundalina Tagorda (Tagorda), who received it from Buhay, because it did not suit Tagorda's taste. The bag was not intended for her since she merely conducted the initial phase of the neuro-psychiatric screening.

(b) There were inconsistencies in the sworn statements of Buhay and Tagorda. While Buhay quoted Bolodo as telling Tagorda "Ma'am, dahil wala po si Mrs. Buludo [sic], pakibigay na lang itong dala ko na nakabalot sa plastic bag," Tagorda quoted him as saying "Ma'am pwde po bang iiwan itong dala ko na para kay Mrs. Bolodo." Furthermore, while Tagorda specified that the incident took place in October or November 2002, Buhay merely stated that it happened sometime in 2002. DETACa

(c) Her functions as Psychologist 1 were merely recommendatory. She did not have the final say on whether an applicant would pass or fail the initial screening. Thus, she could not have demanded the bag from Buhay for him to pass the neuro-psychological examination.

(d) The DND and CSC erred in relying on the sworn statements of Sgts. Grenelita Wilson and Lida Mier as alleged eyewitnesses during Buhay's interview. If they were such eyewitnesses, there would have been no need for Buhay to confide her alleged demand to them, as he averred in his sworn statement.

(e) New evidence were submitted on appeal to the CSC which warranted a reversal of the DND's finding of guilt, consisting of sworn statements from Col. Bienvenido Gerardo Casis, Jr., Col. Ramona Go and Sgt. Paciencia S. Sia essentially attesting that Buhay admitted to them, in Bolodo's presence, that his sworn statement was false, that he was made to execute the same by the Chief Psychologist, and that he would execute another affidavit to rectify his initial sworn statement.

(d) DND violated her right to procedural due process when her request for a conference and/or clarificatory hearing was denied, and when it rendered a decision unsupported by substantial evidence.

(e) Because she was illegally dismissed, she is entitled to backwages.

(f) The penalty of dismissal was unduly harsh considering that she had been in the service for 33 years and this is her first offense. These are mitigating circumstances under Sections 48 (l) and (n) of the Revised Rules on Administrative Cases in the Civil Service (RRACCS).

(g) The Court is asked to consider the commendations she received, as submitted to the CA, as proof of her dedication, loyalty and integrity.

Bolodo prays for exoneration or in the alternative, a reduced penalty, reinstatement without loss of seniority or rank/grade, and backwages.

The CSC and the DND, through the Office of the Solicitor General (OSG), sought the dismissal of the instant petition.

The Court's Ruling

The petition lacks merit.

A petition for review under Rule 45 should raise only questions of law. 15 This rule finds even greater application when the findings of fact were affirmed by the Court of Appeals, as in this case. 16 A question of law arises when there is doubt as to what the law is on a certain state of facts while there is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. For a question to be one of law, the same must not involve an examination of the probative value of the evidence. 17 Here, Bolodo assails the appreciation of evidence by the DND, CSC and the CA who all arrived at the same factual determination.

The case does not present any of the recognized exceptions 18 to warrant a review of the assailed factual findings.

There is substantial proof that Buhay gave in to Bolodo's demand for a Lacoste bag in consideration of passing the initial screening for CAD.

Buhay's sworn statement shows that sometime in August 2002, when Bolodo interviewed him for initial screening following his neuro-psychiatric test, she asked him if he wanted to pass said screening, and when he answered in the affirmative, she told him: "Sige magbigay ka sa akin ng pulang kulay na lady Lacoste bag." Afraid that he would fail if he did not produce the item demanded, he bought the bag in Baclaran and returned to Bolodo's office the next day. However, Bolodo was not around so he entrusted the bag to a lady personnel asking her to give the item, then wrapped in a plastic bag, to Bolodo. The lady personnel accepted the bag and told him that she would give the item to Bolodo the moment she reported to the office.

In her own sworn statement, Tagorda, a psychologist assigned at the neuro-psychiatry section of FBGH to whom Buhay entrusted the bag, corroborated Buhay's claim. She attested that Buhay left with her a package meant for Bolodo — an item wrapped in brown paper and placed in a plastic bag with Bolodo's name on it; that she handed this package to Bolodo the following day; that Bolodo opened the package in her presence and she saw that it contained a lady Lacoste bag, prompting her to remark that it was in Bolodo's favorite color which the latter acknowledged. aDSIHc

The alleged inconsistencies in the sworn statements of Buhay and Tagorda are more apparent than real. While the language they used to describe Buhay's statement to Tagorda were not identical, the message was the same — that the bag was entrusted by Buhay to Tagorda, to be given to Bolodo. Furthermore, that Buhay supposedly did not specify the month when the incident took place, which Tagorda indicated to be either in October or November, does not altogether demonstrate an inconsistency. In any case, both witnesses referred to the same year (2002). Their testimonies are also consistent insofar as the principal occurrence is concerned — that Buhay gave and Tagorda accepted the bag meant for Bolodo. Moreover, the exact date of commission is not an element of the administrative offense and is deemed a minor matter that will not diminish the probative value of Buhay and Tagorda's testimonies which are compatible in material respects.

It is true that the CSC erroneously considered Sgts. Wilson and Mier as eyewitnesses since their testimonies merely showed that their friend, Buhay, confirmed to them that he gave Bolodo a Lacoste bag. At best, their testimonies merely corroborate Buhay's statement that he informed them of Bolodo's demand, and may indicate such candor on the part of Buhay as to give credence to his accusation against Bolodo. At any rate, independent of Wilson and Mier's testimonies, there exists substantial evidence in Buhay and Tagorda's sworn statements that Bolodo committed the act charged.

Bolodo has not shown by competent and credible evidence why the witnesses against her, particularly Buhay and Tagorda, would falsely testify against her. The fact that Buhay, in testifying against Bolodo, has exposed himself to possible administrative and/or criminal liability, lends credence to his testimony. As it is, the CSC has referred his action to the Office of the Deputy Ombudsman for the Military.

Well-entrenched is the rule that substantial proof, and not clear and convincing evidence or proof beyond reasonable doubt, is sufficient basis for the imposition of any disciplinary action upon an employee. 19 Substantial evidence is such relevant evidence as a reasonable mind may accept as adequate to support a conclusion. 20 The standard of substantial evidence is satisfied where the employer has reasonable ground to believe that the employee is responsible for the misconduct, and his participation therein renders him unworthy of trust and confidence demanded by his position. 21 In this case, there was substantial evidence to support the factual findings of the DND, CSC and the CA.

As a general rule, the findings of fact of the CSC and the CA are accorded great weight. Quasi-judicial bodies like the CSC are considered to be better-equipped in handling cases concerning the employment status of those in the civil service since such matters are within its field of expertise. Factual findings of administrative agencies are generally held to be binding and final so long as they are supported by substantial evidence on record. 22

Bolodo committed her misconduct in the performance of her official duties as a psychologist at the FBGH. She made the demand for a Lacoste bag in the course of her initial screening and evaluation of Buhay's qualifications for CAD. Thus, as the CSC correctly found, in demanding and receiving the red Lacoste bag from Buhay in exchange for the latter's passing the neuro-psychiatric examination, Bolodo violated Section 52 (A) 9, Rule IV (Penalties) of the Uniform Rules on Administrative Cases in the Civil Service (URACCS) which reads:

Section 52. Classification of Offenses. — Administrative offenses with corresponding penalties are classified into grave, less grave and light, depending on their gravity or depravity and effects on the government service.

A. The following are grave offenses with their corresponding penalties:

xxx xxx xxx

9. Receiving for personal use of a fee, gift or other valuable thing in the course of official duties or in connection therewith when such fee, gift or other valuable thing is given by any person in the hope or expectation of receiving a favor or better treatment than that accorded to other persons, or committing acts punishable under the anti-graft laws.

1st offense — Dismissal

There is no merit in Bolodo's argument that she was not accorded due process because her request for a conference or clarificatory hearing was denied. ETHIDa

In the case of Augusto R. Samalio v. Court of Appeals, Civil Service Commission, Department of Justice and Bureau of Immigration, 23 the Court held that:

Due process in an administrative context does not require trial-type proceedings similar to those in courts of justice. Where opportunity to be heard either through oral arguments or through pleadings is accorded, there is no denial of procedural due process. A formal or trial-type hearing is not at all times and in all instances essential. The requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. The standard of due process that must be met in administrative tribunals allows a certain degree of latitude as long as fairness is not ignored. In other words, it is not legally objectionable for being violative of due process for an administrative agency to resolve a case based solely on position papers, affidavits or documentary evidence submitted by the parties as affidavits of witnesses may take the place of their direct testimony. 24

The right to cross-examine is not an indispensable aspect of administrative due process. 25

Bolodo had more than enough opportunity to present her side and adduce evidence in support of her defense. Thus, she cannot claim to have been deprived of due process. As the records show, she was informed of the Letter-Complaint filed against her for alleged nefarious activities. As the matter was subsequently investigated by ASCOM, Bolodo was able to submit her Answer denying all the accusations against her. Later, after the ASCOM, OAPM and the OAJA sequentially reviewed the case and offered their recommendations, Bolodo was formally charged. Against this charge, Bolodo filed a Counter-Affidavit and the OPMG conducted further investigation before issuing its recommendation which was endorsed by several AFP officials. When the DND, acting on the recommendations issued by the different offices of the AFP, ruled against Bolodo, she moved for reconsideration, and when her motion was denied, she appealed to the CSC. From the CSC's adverse rulings, she sought review from the CA and now from this Court.

The foregoing circumstances not only show that Bolodo had been given the chance to explain her side before the DND rendered its decision, they also demonstrate that the case underwent several levels of investigation and review and Bolodo had been able to use all available procedural remedies 26 to challenge both the administrative and judicial findings against her.

Due process is essentially the opportunity to be heard, 27 and as applied to administrative proceedings, the opportunity to explain one's side or the opportunity to seek a reconsideration of the action or ruling complained of. 28 "To be heard" does not mean only verbal arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process." 29 Any seeming defect in the observance of due process may be cured when the party has been afforded the opportunity to appeal or to seek reconsideration of the action or ruling complained of. 30

The sworn statements of Col. Casis, Jr., Col. Go and Sgt. Sia, which were belatedly submitted to the CSC on appeal, do not constitute newly discovered evidence. "For a particular piece of evidence to be regarded as 'newly discovered' for purposes of a new trial, it is essential that the offering party had exercised reasonable diligence in seeking to locate such evidence before or during trial but had nonetheless failed to secure it." 31 A supposed admission from Buhay that his sworn statement was false was obtainable even while the case was pending investigation and even before the DND. Bolodo has not shown that despite reasonable diligence, she failed to secure such evidence before the DND rendered its decision. Furthermore, the fact remains that Buhay has not retracted the sworn statement he submitted to the AFP investigators despite incurring possible administrative and criminal liability, and that such statement has been corroborated under oath by another witness in the person of Tagorda.

Section 52 (A) 9, Rule IV (Penalties) of the URACCS, as above-quoted, supports the penalty of dismissal meted against Bolodo. Her act constituted a grave offense which will not be mitigated by the commendations she previously received, her length of service or by the fact that it was her first offense. Jurisprudence is replete with cases declaring that a grave offense cannot be mitigated by the fact that the accused is a first-time offender or by the length of service of the accused. 32 In fact, Section 52 (A) 9, Rule IV explicitly states that the offense of which Bolodo was found guilty is punishable by dismissal from the service even if it be the respondent's first offense. When an officer or employee is disciplined, the object sought is not the punishment of such officer or employee but the improvement of the public service and the preservation of the public's faith and confidence in the government. 33 cSEDTC

In its January 8, 2010 Resolution, the DND stated: "With several cases of shooting incident and deaths due to mental problems, the AFP implements a strict rule of passing the neuro-psychiatric examination for applicants in the commissioned officer and enlisted personnel." 34 By her offense, Bolodo has seriously undermined the integrity of the AFP's recruitment system. A penalty of dismissal is, thus, in order as it serves to maintain the public's faith in our armed forces' fitness and capability to discharge its duty as protector of the people and the State.

The accessory penalties imposed by the CSC are consistent with Section 58 (a) of the URACCS.

WHEREFORE, the Court finds no reversible error in the March 10, 2014 Decision of the Court of Appeals in CA-G.R. SP No. 126065. Accordingly, the petition for review is DENIED.

SO ORDERED." (Sereno, C.J., on leave; Jardeleza, J., took no part; Bersamin, J., designated additional member per raffle dated April 23, 2018)

Very truly yours,

(SGD.) LIBRADA C. BUENADeputy Division Clerk of Court

 

Footnotes

1.Rollo, pp. 12-31.

2. Penned by Associate Justice Apolinario D. Bruselas, Jr. and concurred in by Associate Justices Remedios A. Salazar-Fernando and Samuel H. Gaerlan. Id. at 38-51.

3. Rendered by Chairman Francisco T. Duque III and Commissioner Mary Ann Z. Fernandez-Mendoza. (Commissioner Rasol L. Mitmug was on leave.) Id. at 87-99.

4. Rendered by Chairman Francisco T. Duque III and Commissioner Mary Ann Z. Fernandez-Mendoza (The office of the other Commissioner was vacant.) Id. at 76-82.

5. Penned by Secretary Hermogenes E. Ebdane, Jr. Id. at 100-104.

6. Penned by Acting Secretary Norberto B. Gonzales. Id. at 105-106.

7.Id. at 39-40.

8.Id.

9.Id. at 40-41.

10.Id. at 41-42.

11. 11. Soliciting or accepting directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value which in the course of his official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of his office. The propriety or impropriety of the foregoing shall be determined by its value, kinship, or relationship between giver and receiver and the motivation. A thing of monetary value is one which is evidently or manifestly excessive by its very nature.

12.Section 3.Corrupt practices of public officers. — In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

xxx xxx xxx

   (b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law.

13. Also known as the Anti-Graft and Corrupt Practices Act.

14.Rollo, p. 99.

15.Towne & City Development Corporation v. Court of Appeals, 478 Phil. 466, 472 (2004). Office of the Ombudsman v. De Villa, 760 Phil. 937, 949 (2015).

16.Towne & City Development Corporation v. Court of Appeals, id.

17.Office of the Ombudsman v. De Villa, supra note 15.

18. (1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and appellee; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by parties, which, if properly considered, would justify a different conclusion. (Office of the Ombudsman v. De Villa, supra note 15)

19. Hadji-Sirad v. Civil Service Commission, 614 Phil. 119, 137 (2009).

20. Phil. Amusement and Gaming Corp. v. Marquez, 711 Phil. 385, 399 (2013).

21. Hadji-Sirad v. Civil Service Commission, supra note 19.

22. Id. at 140.

23. 494 Phil. 456 (2005).

24. Id. at 465-466.

25. Civil Service Commission v. Almojuela, 707 Phil. 420, 450-451 (2013).

26. See Hadji-Sirad v. Civil Service Commission, supra note 19.

27. Samalio v. Court of Appeals, supra note 23.

28. Hadji-Sirad v. Civil Service Commission, supra at 136. Vivo v. Phil. Amusement and Gaming Corporation, 721 Phil. 34, 43 (2013).

29. Vivo v. Phil. Amusement and Gaming Corporation, id.

30. Samalio v. Court of Appeals, supra note 27 at 466. Nestle Philippines, Inc. v Puedan, Jr., et al., G.R. No. 220617, January 30, 2017. Vivo v. Phil. Amusement and Gaming Corporation, supra note 28.

31. Emin v. Chairman De Leon, 428 Phil. 172, 188 (2002).

32. Medina v. Commission on Audit, et al., 567 Phil. 649, 664 (2008). Chairman Duque III v. Veloso, 688 Phil. 318 (2012). Civil Service Commission v. Cortez, 474 Phil. 670 (2004).

33. Medina v. Commission on Audit, supra, id. at 665.

34. Rollo, p. 105.