THIRD DIVISION
[G.R. No. 206069. August 9, 2017.]
CIVIL SERVICE COMMISSION, petitioner,vs. PONCIANO S. CATIPON, JR., respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution dated August 9, 2017, which reads as follows:
"G.R. No. 206069 (CIVIL SERVICE COMMISSION, Petitioner, v. PONCIANO S. CATIPON, JR., Respondent.)— The Court NOTES:
(1) the letter dated November 28, 2016 of Ponciano S. Catipon, Jr., requesting that his case be given attention by the Court since he has already used all his financial resources with prayer that the Court finds merit in his appeal and the modified Decision of the Court of Appeals be fully implemented; and
(2) respondent's letter dated March 3, 2017, addressed to Chief Justice Maria Lourdes P. A. Sereno, seeking the immediate disposition of his case.
Under review is the amended decision promulgated on February 7, 2013 in CA-G.R. CV No. 114188, 1 whereby the Court of Appeals (CA) affirmed the Resolution No. 091264 2 dated September 1, 2009 and Resolution No. 100677 3 dated April 6, 2010 of the Civil Service Commission (CSC) finding respondent guilty of nepotism except that it modified the penalty imposed to suspension from office without pay for one year.
Antecedents
The following factual antecedents are stated in the CA's decision, viz.:
Sometime in September 1999, petitioner was appointed Provincial Director of Technical Education and Skills Development Authority (TESDA) in Aurora Province. During his stint as provincial director, petitioner signed the personnel requisition slip declaring as vacant the position of Senior TESD Specialist. Several employees of TESDA, including petitioner's brother Virgilio Catipon (Virgilio), who was employed as a cash clerk in the same provincial office, applied for the said position. A selection committee was then created by the Regional Office of TESDA to administer examinations and conduct interviews for the applicants. Virgilio garnered the highest rating and was then recommended to fill-up the vacant position by the selection committee to Regional Director Clifford Paraguay who then issued his promotional appointment.
Meanwhile, prior to the appointment of Virgilio, petitioner's first cousin Sheila Theresa Rivera (Sheila) was also appointed in October of 1999 as Financial Analyst II of TESDA-Aurora Provincial Office.
By reason of these appointments, on September 9, 2002, Evelyn M. Fernandez (private respondent), a clerk in the TESDA-Aurora Provincial Office filed a complaint for Nepotism under Section 59 of the Administrative Code of 1997 (Executive Order No. 292) against petitioner, Virgilio and Sheila before the CSC Regional Office No. IV. 4
On September 22, 2008, the CSC Regional Office (CSCRO) rendered Decision No. 080333 5 dismissing the complaint against Sheila Theresa Rivera but finding the respondent guilty of nepotism with respect to the appointment of his brother Virgilio. It imposed upon him the penalty of dismissal from the service with all its accessory penalties considering that he had appointed Virgilio, his relative within the third degree of consanguinity, in his capacity as the Provincial Director of TESDA in Aurora Province.
The respondent's motion for reconsideration was denied in CSCRO Decision No. 080417 dated November 20, 2008. 6
Ruling of the CSC
On appeal, the CSC, through Resolution No. 091264 dated September 1, 2009, 7 affirmed the decisions dated September 22, 2008 and November 20, 2008, disposing thus:
WHEREFORE, foregoing premises considered, the present appeal of Ponciano S. Catipon, Jr. is hereby DISMISSED. Accordingly, the CSCRO No. IV Decision dated September 22, 2008, and Decision dated November 20, 2008, which found Catipon liable for Nepotism and imposing upon him the penalty of dismissal from the service with all the accessory penalties of forfeiture of retirement benefits, cancellation of eligibility, disqualification to hold public office, and bar to take civil service examination, and which denied his motion for reconsideration therefor, respectively, is AFFIRMED.8
The respondent's motion for reconsideration was denied in Resolution No. 100677 9 issued on April 6, 2010.
Decision of the CA
The respondent appealed (CA-G.R. SP No. 114188) but the CA, through its decision dated August 24, 2012, 10 affirmed the CSC, explaining and ruling thusly:
To constitute a violation of the law, an appointment must be issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following:
a) appointing authority;
b) recommending authority;
c) chief of the bureau or office; and
d) person exercising immediate supervision over the appointee.
As correctly held by the CSC, petitioner's position as the provincial director of TESDA-Aurora is analogous to that of the chief of the bureau or office. First, Section 2 of the Administrative Code of 1987 dictates that the term "Office refers, within the framework of governmental organization, to any major functional unit of a department or bureau including regional offices." Applying the foregoing definition in the case at bench, We say that TESDA-Aurora Provincial Office is one of the major functional units of TESDA as an agency of the government. Second, Section 15 of Republic Act No. 7796, otherwise known as TESDA Act of 1994, explicitly provides that TESDA provincial offices shall be headed by Skill Development Officers who shall have the rank and emoluments of a Director III. As the provincial director of TESDA-Aurora, petitioner is the head of TESDA-Aurora Provincial Office with the rank of Director III as shown in his Appointment Letter dated July 23, 1999. This fact is bolstered by the Organizational Chart of TESDA-Aurora Provincial Office which shows petitioner at the top of the chart. Petitioner stubbornly argues that since the second paragraph of Section 15 of the TESDA Act provides that it is the Director-General who has direct control of the provincial offices of TESDA, such organizational set-up therefore diminished his position as head of TESDA-Aurora Provincial Office. This stance is not correct because the second paragraph simply means that while the Director-General is the head of the TESDA agency as a whole, the Provincial Office is still under the direct control and supervision of the Provincial Officer like the petitioner herein.
Verily, as the head of the agency or bureau, petitioner is guilty of nepotism the moment an appointment is extended or issued to his relative, in this case to his brother, which is within the prohibited degree of consanguinity or of affinity. Records reveal that he has a hand, though not directly, in the appointment of his brother. The personnel requisition slip for the filling-up of the position of Senior TESD Specialist readily shows that it was signed by him in a recommending capacity. Moreover, his subordinate, Asuncion Mata, was selected as member of the selection committee, that eventually recommended the appointment of his brother. While these circumstances do not obviously show the direct influence of the petitioner on the promotional appointment of Virgilio, We are however convinced that he was behind the latter's appointment, sufficient for us to find him guilty of nepotism. Moreover, it is insignificant that petitioner's brother garnered the highest rating in the examinations and interviews conducted by the selection committee for the prohibition on nepotism applied without regard to the qualifications of the appointee.
We find equally flawed and unavailing petitioner's argument that the prohibition provided under Section 59 of E.O. No. 292 refers only to the issuance of an appointment to a relative and does not pertain to the culpability of the officials enumerated therein. 11 x x x
Upon the respondent's motion for reconsideration, however, the CA promulgated the assailed amended decision reducing the penalty to suspension from the service without pay for one year, 12 to wit:
WHEREFORE, in light of the foregoing, the Motion for Reconsideration is hereby given due course and same is PARTLY GRANTED. The Decision dated August 24, 2012, finding petitioner guilty of nepotism is hereby AFFIRMED subject to the modification that the penalty of dismissal from service with all its accessory penalties imposed on petitioner is hereby REDUCED to SUSPENSION from office without pay for ONE (1) YEAR with a stern WARNING that a repetition of the same or similar acts shall be more severely dealt with.
SO ORDERED.13
In reducing the penalty, the CA took into consideration the mitigating circumstances of the respondent's length of service and his being a first-time offender. 14
Issue
Hence, this appeal, in which the CSC submits the sole ground that:
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW WHEN IT REDUCED THE PENALTY IMPOSED FOR NEPOTISM FROM DISMISSAL TO ONE (1)-YEAR SUSPENSION BECAUSE THE SAME IS NOT PROVIDED FOR UNDER THE CSC LAW. 15
The CSC argues that the CA erred in applying Section 53 of the Uniform Rules on Administrative Cases in the Civil Service (Civil Service Rules)16 for the purpose of determining the penalty to be imposed upon the respondent inasmuch as Section 53 was not applicable to an offense like nepotism on which single and specific penalty of dismissal was to be immediately imposed; 17 and that equitable considerations could not prevail over the express provision of the law mandating the dismissal of erring employee. 18
The respondent counters that Section 53 of the Civil Service Rules expressly grants the disciplining authority the discretion to consider mitigating circumstances in the determination of the appropriate penalty. 19
The sole issue is the proper penalty to be imposed upon the respondent.
Ruling of the Court
We deny the petition for review on certiorari for its lack of merit.
Nepotism is classified as a grave offense under the Administrative Code of 1987, as well as under Section 52 (A) of the Civil Service Rules, and its penalty is dismissal from the service even for the first offense. In this regard, Section 52 (A) of the Civil Service Rules specifically provides:
Section 52. Classification of Offenses. — Administrative offenses with corresponding penalties are classified into grave, less grave or 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
12. Nepotism
1st offense — Dismissal
Nevertheless, Section 53 of the Civil Service Rules states that in the determination of the penalties to be imposed, mitigating, aggravating and alternative circumstances attendant to the commission of the offenses charged shall be considered. Such circumstances include the respondent's length of service in the government and analogous circumstances. 20
Accordingly, the Court has considered the presence of mitigating circumstances in favor of the respondent public official or employee. 21 Such consideration is intended to dilute the harshness of the penalty that the law either fixes or authorizes to be fixed for the act or omission to be punished. Thereby, the offending public official or employee is not being let off for he would still be made to suffer certain punishment specified by the law; he is only being shown the benevolence of the law despite his offense. In Office of the Court Administrator v. Flores, 22 therefore, respondent legal researcher was found guilty of the grave offense of dishonesty for failure to disclose in her personal data sheet the fact of her suspension and dismissal from a previous employment. Yet, the Court, instead of imposing the corresponding offense of dismissal from the service, meted suspension from office for six months without pay after considering the mitigating circumstances of respondent's length of service in the Government for 14 years, and of respondent's being a first-time offender.
Clearly, the Court has applied Section 53 of the Civil Service Rules despite dismissal being the penalty imposable even for the first infraction. Taking into account the respondent's having been a civil servant for 31 years from April 1978 until his dismissal from the service in 2009, 23 and his having no record of any previous infraction during his entire government service, his dismissal from the service would be too harsh. Hence, his suspension from office without pay for one year, as determined by the CA, is upheld.
WHEREFORE, we DENY the petition for review on certiorari; and AFFIRM the amended decision promulgated on February 7, 2013 by the Court of Appeals in CA-G.R. SP No. 114188, without pronouncement on costs of suit.
(Jardeleza, J., no part, due to his prior action as Solicitor General. Peralta,J., designated additional Member per Raffle dated July 3, 2017.)
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1.Rollo, pp. 46-52; penned by Associate Justice Edwin D. Sorongon, with Associate Justice Hakim S. Abdulwahid and Associate Justice Marlene Gonzales-Sison concurring.
2.Id. at 68-77.
3.Id. at 78-83.
4.Id. at 90.
5.Id. at 57-64.
6.Id. at 66-67.
7.Id. at 68-76.
8.Id. at 76.
9.Id. at 78-83.
10.Id. at 89-95.
11.Id. at 93-94.
12.Id. at 46-52.
13.Id. at 52.
14.Id. at 50.
15.Id. at 35.
16. Section 53.Extenuating, Mitigating, Aggravating, or Alternative Circumstances. — In the determination of the penalties to be imposed, mitigating, aggravating and alternative circumstances attendant to the commission of the offense shall be considered.
The following circumstances shall be appreciated:
a. Physical illness
b. Good faith
c. Taking undue advantage of official position
d. Taking undue advantage of subordinate
e. Undue disclosure of confidential information
f. Use of government property in the commission of the offense
g. Habituality
h. Offense is committed during office hours and within the premises of the office or building
i. Employment of fraudulent means to commit or conceal the offense
j. Length of service in the government
k. Education, or
l. Other analogous circumstances
Nevertheless, in the appreciation thereof, the same must be invoked or pleaded by the proper party, otherwise, said circumstances shall not be considered in the imposition of the proper penalty. The Commission, however, in the interest of substantial justice may take and consider these circumstances.
17.Rollo, p. 37.
18.Id. at 40.
19.Id. at 101.
20.Office of the Court Administrator v. Aguilar, A.M. No. RTJ-07-2087, June 7, 2011, 651 SCRA 13, 25.
21.Id.
22. A.M. No. P-07-2366, April 16, 2009, 585 SCRA 82, 92.
23.Rollo, p. 50.