Republic of the Philippines

Supreme Court

SECOND DIVISION

TECHNOLOGICAL INSTITUTE G.R. No. 158703

OF THE PHILIPPINES TEACHERS and
EMPLOYEES ORGANIZATION
(TIPTEO) and its member MAGDALENA Present:
T. SALON,
Petitioners,
QUISUMBING, J., Chairperson,
*
YNARES-SANTIAGO,
**
CHICO-NAZARIO,
***
- versus - LEONARDO-DE CASTRO, and
BRION, JJ.

THE HON. COURT OF APPEALS

and TECHNOLOGICAL Promulgated:
INSTITUTE OF THE
PHILIPPINES,
Respondents.
June 26, 2009

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

DECISION

BRION, J.:

Before this Court is the petition for review on certiorari[1] challenging the Amended
Decision dated May 22, 2003 of the Court of Appeals (CA) in the
case TechnologicalInstitute of the Philippines v. Technological Institute of the Philippines
Teachers and Employees Organization, CA G.R. SP No. 66896.[2]

THE FACTUAL BACKGROUND

The facts of the case, set out in the original CA decision promulgated on November 20,
2002,[3] are summarized below.

Petitioner Magdalena T. Salon (Salon) was a College Instructor 3 of the Humanities and
Social Science Department (HSSD) of respondent Technological Institute of the Philippines
(TIP) and a member of the Technological Institute of the Philippines Teachers and
Employees Organization (TIPTEO). She commenced employment with the TIP on June 13,
1989.
On October 24, 2000, the TIP received complaints from students claiming that Salon was
collecting P1.50 per page for the test paper used in the subject she was teaching at the
time. She reportedly asked her students not to write on the test papers; these test papers
were not returned to the students after the test. An allegation was made, too, that Salon
committed an anomaly in the grading of her students.

Acting on the written complaints, the TIP through Ms. Josephine Royer (Ms. Royer), the
school's Assistant Faculty Coordinator sent Salon a memorandum dated October 30,
2000asking her to explain within 72 hours why she should not be disciplined on the basis
of the complaints.[4]

Salon answered the charges on October 31, 2000.[5] She explained that she collected
only P0.50 for each page of the test papers, which sum she spent in photocopying the
papers; the amount collected was within the limits the school had set. She admitted that
she asked her students not to write on the test papers because there was no space on
these papers where they could write their answers; it would be preferable to use the test
booklets also provided to the students.

On the alleged grade manipulation, Salon explained that the incident involved the son of a
fellow faculty member who actually failed her subject. Her fellow faculty member and
mother of the student, upon learning of her son's failing grade, tried to persuade Salon to
give her son a passing grade for fear that the father, if he learned of the failing mark,
would harm his son. Salon claimed that she did not accede to the request; she gave the
student a grade of 6.0 or dropped instead of giving him a grade of 5.0 or failed.

The TIP created a three-man committee to conduct a formal investigation of the

charges.[6] The committee called a hearing on November 16, 2000 and issued the following
findings:[7]
Recommendation:

1. Evidences (sic) show that Ms. M.T. Salon has

changed the grade of Mr. Joseph Florante Manalo.

She disregarded the TIP grading system when she

gave a grade of 6.0 (officially dropped) inspite of the

class performance records. She admitted that the

grade is 5.0 (failed) but made it 6.0 (officially

 dropped) which according to her is 'lesser degree of

failure' because Mr. Joseph Florante Manalo, is the

son of a co-faculty, Mrs. Elma Manalo in HSSD. She

also changed the entry in the class record. The class

record was already submitted to TIP so that this is

already a TIP document.

2. With regards to the printed test questionnaires,

Mrs. M.T. Salon has violated Memorandum No. P-

66 SY 1992-1993 by not getting the approval of the

department officer.It is unauthorized selling which

the General Disciplinary Sanctions (Memorandum

No. P-2 s. 1999-2000) classifies as a GRAVE

offense.

3. The committee recommends the application of the

corresponding sanction as contained in the General

Disciplinary Sanctions (Memo No. P-3 s. 1999-2000)

which is dismissal.

4. The recommendation shall take effect only after

the approval of the President.

On December 4, 2000, the office of TIP President Dr. Teresita U. Quirino notified Salon
of the termination of her service as member of the faculty of HSSD effective thirty (30)
days from receipt of the notice.[8] The dismissal was based on the investigation
committee's recommendations.
Salon sought assistance from TIPTEO which then requested the TIP that a joint grievance
investigation be conducted to take up her dismissal. The TIP denied the request arguing
that Salon's dismissal was not proper for the grievance machinery because the ground for
dismissal was a violation of the school's rules and regulations.

Faced with this denial, TIPTEO opted to file a complaint for illegal dismissal with the
National Conciliation and Mediation Board (NCMB) in the National Capital Region. At the
NCMB, the parties agreed to submit the dispute to Voluntary Arbitrator Alfonso C. Atienza
for voluntary arbitration.

On July 14, 2001, the voluntary arbitrator rendered an award in Salons favor.[9] The
arbitrator ruled that Salon was dismissed without a valid cause and without due
process. He found that the school was unable to prove by substantial evidence that Salon
committed the acts charged. At the most, the arbitrator concluded that the TIP only proved
that there was no permission, written or verbal, before Salon prepared and sold the test
papers to her students. On the due process issue, the arbitrator found that Salon was not
afforded an opportunity for a real investigation because she was denied the right to
counsel; neither was she afforded the right to a hearing under the grievance procedure of
the CBA and under the Labor Code.

The voluntary arbitrator ordered the TIP to reinstate Salon as College Instructor 3 with full
backwages, but suspended her for one month for not getting a written permission from
responsible officials of the school in charging students with the cost of examination
papers.

The TIP sought the reconsideration of the award, but the voluntary arbitrator denied the
motion on September 16, 2001. The TIP thereupon elevated the case to the CA through
a petition for review. In a decision promulgated on November 20, 2002, the appellate court
affirmed the voluntary arbitration award resulting in the dismissal of the petition. [10]The
appellate court agreed with the voluntary arbitrator that nothing in the TIP rules warrants
the dismissal of a faculty member for selling examination papers without the school's
written permission. It was not convinced that the infraction committed by Salon is a grave
offense referred to in Memorandum No. P-25 s. 2000-2001 that the TIP cited as
justification for the dismissal of Salon.[11] The relevant portion of this memorandum reads:

1. In line with the school's thrust to provide quality education

and service to its students, a photocopy center is created

 with the major task of servicing students on their handout

requirements.

xxx

4. Please discuss these to your respective faculty members

on one of your department meetings.

xxx

4.1 Explain to them the objectives for the

creation of said photocopy

center. Emphasize to them that they are not

authorized to sell instructional materials, and

to do so is a grave offense. Explain further

that this is one of the reasons why the center

is being formed.

xxx

4.2 Make clear to them that services of the

photocopy center shall be limited to required

handouts and instructional materials

assigned by faculty members and will not

include other photocopy needs of the

student.

The CA ruled that examination papers do not fall within the term instructional materials that
the memorandum covers; the memorandum only covers handouts and instructional
materials needed by students and assigned by their teachers. The CA explained that from
their nature and use, handouts and instructional materials are entirely different from
examination papers; instructional materials are used to present and convey lessons to the
students; whereas, examination papers measure the students degree of comprehension
of their lessons.
On a related matter, the CA held that if Salon committed an infraction, it should be limited
to the fact that she did not ask the Faculty Coordinator and the Department Head to
determine the cost of the papers which she disseminated among her students, as required
under paragraph 4 of Memorandum No. P-22 s. 1988-1989.[12] Additionally, the CA held
that Salon could be cited for tampering with the grade of her student Joseph Florante
Manalo (Manalo) a violation of the TIP grading policy.

Undeterred, the TIP moved for the reconsideration of the CA decision. The CA granted
the motion and handed down the now assailed amended decision on May 22, 2003.[13] It
examined the facts for the second time and concluded that it erred in excluding
examination papers from the ambit of the term instructional materials. It reasoned out that
examination papers play as much, maybe even more importance in the determination of
a student's aptitude than any kind of instructional material x x x to exclude examination
papers from the perimeters of the term 'instructional materials' would amount to an
incongruity. The CA also faulted Salon for changing the grade of Manalo from 5.0 (failed)
to 6.0 (officially dropped) after the grades had been submitted.

For the reason that the infractions committed by Salon were unrefuted and proven, the CA
found basis for the TIP's decision to dismiss her for the commission of a grave offense.This
notwithstanding, the appellate court deemed it in accord with justice and equity to award
her separation pay, in consideration of Salon's more than ten (10) years of service to TIP
and because she had not previously been involved in any similar act or one that warrants
a heavier penalty.

Accordingly, the CA annulled its decision dated November 20, 2002[14] as well as that of
the Voluntary Arbitrator dated July 14, 2001.[15] It declared that Salon was dismissed for a
valid cause, but awarded her separation pay at one month's basic salary for every year of
service. From this decision, Salon and TIPTEO (now represented by the present counsel
upon the demise of Mr. Antonio Diaz who had assisted her [Salon] from the beginning)
now come before this Court to challenge the amended CA decision.

THE PETITION

The petition submits that the CA erred:

1. In ruling that Salon was dismissed for a valid cause.

2. In not finding that Salon was denied procedural due process.
 3. In not dismissing the petition outright despite its failure to attach a certified
statement of material dates in violation of Section 3, Rule 46 in relation to Rule 65
of the Rules of Court, and Revised Circular No. 1-88.
On the first ground, Salon and her union bewail the CA's shifting appreciation of the nature
of test/examination papers, from non-instructional material to instructional material relying
on the same policy document of the school, Memorandum No. P-25 s. 2000-2001.[16] They
contend that the appellate court's change of mind was not supported by any
authority. Citing the dictionary definition[17] of instructional and test, they argue
that instructional material and test papers are two different things; test is a series of
questions, problems, etc., intended to measure the extent of knowledge, aptitudes,
intelligence, and other mental traits; instructional is an adjective which means pertaining
or relating to instruction; educational; containing information.

Further, petitioners posit that it is incorrect to conclude that Salon is guilty of selling
photocopied test questionnaires to her students; she was not selling but merely securing
reimbursement for the personal expenses she incurred in the preparation of the test
papers. Salon cited as authority Memorandum No. P-22 s. 1988-1989,[18] which expressly
set guidelines for the cost of stenciled examination papers, P0.40 for newsprint, and P0.60
for whitewove paper.

Charging the students for the examination papers could have been avoided according to
Salon had TIP performed its obligation of providing test and examination papers to the
students; faculty members, who are not allowed to use school computers and typewriters
in the preparation of the materials, had to type and photocopy the examination papers at
their own expense and for which they had to seek reimbursement.

On the violation of the school's grading system, Salon submits that she did it for a noble
intention; she changed the grade of Manalo the son of a fellow faculty member from a
failing mark of 5.0 to a grade of 6.0 (dropped) to lessen the impact of the students mothers
guilt and to keep the student from being punished by his father, as she explained in her
letter dated November 14, 2000 to TIP President Dr. Teresita Quirino.[19]

Salon claims that when she realized that she violated the TIP's grading system, she
consciously tried to rectify her error; on October 20, 2000, during the submission and re-
checking of her grading sheets, she asked the permission of Ms. Royer to use the Arlegui
computer room to correct the grade of Manalo, but Ms. Royer directed her to defer the
correction until the date set by the Registrar's Office for the final audit of grades; the
scheduled date, however, was overtaken by her dismissal from her teaching post. She
submits that there was no malice in what she did or an intent to violate the school's grading
system; at the very least, she committed an error in judgment that does not warrant the
harsh penalty of dismissal; her dismissal would violate the constitutional guaranty of
security of tenure.

On the due process issue, Salon points out that the investigation of the charges against
her was a hoax; no genuine investigation took place as she stated in her affidavit dated
June 27, 2001;[20] the investigation was merely a gripe session where the complaining
students hurled a barrage of malicious allegations against her; she was not afforded an
opportunity to defend herself and to be represented by counsel of her own choice or a
representative from the union. Salon further submits that the TIP failed to comply with the
two-notice requirement before she was terminated from employment (1) a first notice
apprising her of the particular acts or omission for which she was being dismissed, and (2)
a second notice informing her of the school's decision to dismiss her. She contends that
the first notice issued by the TIP merely directed her to submit her explanation regarding
the selling of photocopied examination, and did not inform her that this was a ground for
dismissal.

In her third assignment of error, Salon faults the CA for not dismissing the TIP's petition
outright for its failure to attach a certified statement of material dates in violation of Section
3, Rule 46 in relation with Rule 65 of the Rules of Court and Revised Circular No. 1-88. She
submits that a perusal of the TIP's petition for review, dated October 1, 2001,[21] reveals
that there was no verified statement of material dates accompanying the petition a defect
which cannot be cured by the incorporation of material dates in the body of the petition.

Petitioners pray that the CA's amended petition be set aside; that Salon's dismissal be
declared illegal; and that she be reinstated with full backwages.

THE CASE FOR TIP

The TIPs Comment dated September 5, 2003[22] and Memorandum dated March 25,
2002[23] commonly justify Salon's dismissal on grounds of: (1) tampering or falsifying the
grade of a student, which is a serious misconduct and an act of dishonesty and, (2) selling
of test papers without the approval of the school, which is a grave offense under the
Manual of Regulations for Private Schools and TIP's general disciplinary sanctions.[24]
On the first infraction, the TIP laments that the Voluntary Arbitrator ignored Salon's
involvement in the incident on the excuse that the complaint was not notarized. The TIP
brushes aside the technical deficiency and focuses on the substance of the offense
charged that Salon admitted that she changed the grade of her student Manalo from a
failing grade of 5.0 to a mark of 6.0, which means that the student did not fail, but officially
dropped the subject; the act constituted tampering, a violation not only of the school's
explicit rules and regulations, but also of the Manual of Regulations for Private
Schools; the alteration of the grade of her student constituted serious misconduct in
relation with the performance of Salon's duties that rendered her unfit to continue working
for the school; it was also an act of dishonesty, a clear disregard of her duty to serve as
an example to her students and to others. While Salon claimed that she did it with the
noble intention of giving the student a lesser degree of failure, it was a clear falsification of
student records, which is a valid ground for termination of employment under the Manual.

Regarding the charge of selling test questionnaires without approval, TIP again relies on
the results of the investigation undertaken by a committee created for the purpose. The
committee found Salon to have violated Memorandum No. P-66 s. 1992-1993,[25] which
provides among others:

1.0 All faculty members are reminded that

xxx

1.3 Faculty members who intend to use mimeographed or

photocopied test questionnaires should first refer these to

their respective department officers. If approved, they

should not sell these more than the cost of the prevailing

price of photocopies which are between 0.25 to .035

centavos per page.

xxx

2.0 Any faculty member violating the school's policies will

be subject to disciplinary action, either suspension or

dismissal depending on the gravity of the offense.

TIP contends that Salon did not ask for the approval of the school on her selling and
costing of the test questionnaires, an offense classified as grave under the general
disciplinary sanctions of the school, or Memorandum No. P-3 s. 1999-2000, the penalty
for which is dismissal. It further contends that in an attempt to justify her acts, Salon cited
Memorandum No. P-22, s. 1988-1989 regulating the selling of mimeographed
examinations, which it argues cannot prevail over a subsequent issuance, Memorandum
No. P-66 s. 1992-1993 and Memorandum No. P-25 s. 2000-2001, which set guidelines for
the use of the photocopy center, not acts of teachers. It explains that under the two
memoranda, the selling of test papers without authorization from school authorities is a
prohibited act.

Also, the school takes exception to Salon's reliance on Memorandum No. P-25 s. 2000-
2001[26] on the use of the photocopy center, especially on her claim that the test
questionnaire is not an instructional material and, therefore, can be sold to students. It
faults the voluntary arbitrator for his shortsighted appreciation of the case; the
recommendation of the investigating committee clearly reflected that the rule violated was
Memorandum No. P-66 s. 1992-1993.[27] This notwithstanding, the TIP argues that
Memorandum No. P-25 s. 2000-2001 and Memorandum No. P-22 s. 1988-1989 must be
viewed in relation with the prohibition under Section 94 of the Manual of Regulations for
Private Schools against any form of collections from students.[28] It thus posits that the
question of whether test questionnaires are instructional materials becomes irrelevant
since the prohibited act is the selling or collecting of contributions without the approval of
the school. It is quick to add, however, that the CA is correct in classifying examination
papers as instructional materials.

On the issue of due process, the TIP claims that it duly notified Salon of the charges
against her consisting of (1) her having collected money from her students for test papers
without the approval of the school, and (2) the complaint of the father of the tampering of
the grade of his son (Manalo). The school asked Salon to submit her written answer to the
charges against her. She was also given the opportunity to explain her side at the
investigation hearing. Thereafter, she was given the required notice of termination.

On Salon's third assignment of error, the TIP submits that the petition for review it filed
with the CA complied with the requirement on statement of material dates under the Rules
of Court.[29] It disputes Salon's argument that it is not sufficient to state the material dates
in the body of the petition and that a separate verified statement must be attached. It
maintains that a perusal of the specific applicable rule shows that the statement of material
dates in a petition for review under Rule 43 need not be in a separate attachment under
oath.[30]

The TIP then points out that the petition filed with the CA states that the school received
the decision of the voluntary arbitrator dated July 14, 2001 on August 10, 2001; on August
16, 2001, it moved for reconsideration of the voluntary arbitration award, and received on
September 17, 2001 the order dated September 6, 2001, denying the motion for
reconsideration. It explains that with the verification/certification under oath that all
allegations in the petition for review are true and correct, the statements of material dates
made on pages 1 and 4 of the petition are therefore verified or certified under oath. The
CA thus held that since a review of the material dates revealed that the petition was filed
within the fifteen-day period from petitioner TIPTEO's receipt of the voluntary arbitrators'
denial of its motion for reconsideration, the petition could be given due course.[31]

The TIP lastly contends that under the Court's Revised Circular No. 1-88[32] that Salon
cited, the dismissal of a case where there is no verified statement of material dates is at
the discretion of the court. It then concludes with the statement that it has been held in a
number of cases that rules on technicalities are adopted to serve justice and equity, and
not to hamper them.

THE COURT'S DECISION

We resolve to DENY the petition for lack of merit.

The Procedural Issue

We first resolve the procedural question raised the alleged failure of TIP to attach a verified
statement of the material dates to its petition with the CA, as required by the Rules of
Court[33] and Supreme Court Revised Circular No. 1-88.[34]

We clarify in this regard that the review the TIP filed with the appellate court was not a
special civil action for certiorari under Rule 65 of the Rules of Court; it was an appeal to
the CA through a petition for review under Rule 43. This is consistent with our ruling
in Luzon Development Bank v. Association of Luzon Development Bank
Employees[35] that decisions of voluntary arbitrators or panel of voluntary arbitrators should
be appealable to the CA. The CA correctly treated the petition of TIP as an appeal filed
under Rule 43 which, parenthetically, also requires a statement of material dates in the
petition.[36] The rationale for the requirement is to enable the appellate court to determine
whether the petition was filed within the period fixed in the rules.[37]

The CA reviewed the material dates contained in the petition and concluded that the
petition was filed within the fifteen (15)-day period from receipt of the voluntary arbitrator's
denial of its motion for reconsideration x x x . Proceeding from this premise and in the
exercise of the discretion granted it by the Rules in considering technical deficiencies, the
CA concluded that the petition could be given due course.[38] We respect the CAs exercise
of its discretion as it was exercised within the limits allowed by the Rules; the material data
on the filing of the petition are reflected in the petition. The CA was therefore properly
guided in considering whether the petition had been timely filed. Consequently, we declare
that the CA committed no reversible error when it gave due course to the petition.

The Substantive Issues

a. The Sale of Papers
The first substantive issue is on the sale of test papers to students. We find it unfortunate
that the tribunals below failed to recognize the appropriate TIP rule that should govern the
situation. Thus, Memorandums Nos. P-22, P-25, and P-66 have all been invoked. To clear
the air, Memorandum No. P-22 is an issuance on August 4, 1988 on the subject:
Mimeographed Examinations whose relevant terms provide:[39]

There have been complaints received by this office that a number of

teachers have been abusing the use of printed test materials to the
detriment of the students:

1. A certain teacher uses the same printed matter

in all of his classes and charges each student P1.00. This
printed test material is only one page.

2. Some teachers are having printed

examinations for which they charge the students
exhorbitantly.

xxx
To correct these practices we have several suggestions:
xxx
3. Faculty members who have no other recourse but to print
their examinations should ask for the permission of their
Faculty Coordinator, Department Head or Dean before they
sell such examination papers to students.

4. The cost of the stenciled examination paper should be

determined by the Faculty Coordinator, Department Head
and Dean by presenting the official receipts or the cost of
printing. More or less, the cost per page should be for
Newsprint paper P0.40 and Whitewove paper P0.60.
 For your guidance and strict compliance effective this semester SY 1988-
89.
We quote this Memorandum in full because it indicates the concern that the school sought
to address in coming out with a regulation, which concern is exactly the cause for the
students complaints. The Memorandum stresses, too, that an approval process had been
in place as early as 1989.

Memorandum No. P-25 issued in 2000-2001 is on the subject

of PHOTOCOPY CENTER, created with the major task of servicing students on their
handout requirements and shall be limited to required handout instructional materials
assigned by faculty members and will not include other photocopy needs of the
students.[40] Apparently, this Memorandum addresses its own objectionable practice and
is very specific on the concern it addresses handout instructional materials.

Memorandum No. P-66 issued on April 23, 1993 is on the subject of UNAUTHORIZED
BOOKBINDING OF REPORTS AND PROJECTS, MIMEOGRAPHING OR
PHOTOCOPYING OF TEST QUESTIONNAIRES, HANDOUTS, OR ANY PRINTED
MATERIAL. Significantly, this Memorandum specifically provides that Faculty members
who intend to use mimeographed or photocopied test questionnaires should first refer
these to their respective department officers. If approved, they should not sell these more
than the cost of the prevailing price of photocopies which are between P0.25 to P0.35
centavos per page. x x x 2. Any faculty member found violating the schools policies shall
be subject to disciplinary action, either suspension or dismissal, depending on the gravity
of the offense.

Under these regulatory measures, it appears clearly that Memorandum No. P-22, while
specifically on the subject of Mimeographed Examinations, is not the current TIP issuance
on the matter. Memorandum No. P-66 is the latest issuance and the one that specifies the
requirements and penalizes violations. On the other hand, Memorandum No. P-25
appears to be an issuance with little relevance on the present dispute because it deals
with instructional materials and by its own terms does not cover other photocopy needs of
the students. An additional reason for its irrelevance, of course, is the existence of at least
two issuances that deal specifically with examination papers.

Salon never denied that she had charged her students the cost of their examination papers
without the approval of the proper school authorities pursuant to Memorandums Nos. P-
22 and P-66. The rationale behind the school policy of closely regulating the cost and sale
of examination papers is to free the students from avoidable financial burdens, and to
prevent the abuse of the use of printed examination papers by the teachers, as expressly
stated in Memorandum No. P-22. It is of no moment that Salon kept within the price range
set by the school for the cost per page of the examination paper. Her transgressions spring
from her failure to secure prior approval of her use of photocopied exam papers, and of
the attendant cost. These transgressions link up directly with the students allegations that
they had to return and could not write on the exam papers they paid for a possible indicator
of the intent to abuse.[41]

Salon's guilt is not erased or mitigated by her excuse that she had no choice but to secure
reimbursement from the students for the cost of the examination papers that the school
should provide but does not. The school does not deny that the teachers have to be
reimbursed, but at the same time it imposes measures to avoid abuses. Unless there is a
showing of patent unreasonableness (and we find none in this case), these measures
have to be complied with. In saying this, we do not thereby indicate our approval of the
school practice of not providing test papers as part of services to students covered by their
matriculation fees. Tests are the traditional and the accepted mode of measuring students
performance and should be part and parcel of the basic services that a school should
offer. Charging their costs to students at the time of the examination renders the students
capacity to take the examinations dependent on their finances at examination
time. However, these are policy questions outside the scope of our present inquiry, as the
substantive reasonableness of the schools policies and issuances is not a question
directly before us, nor are these issuances patently unreasonable. Thus, they do not enter
the picture at all in the determination of Salons guilt and penalty.

b. Grade Tampering
Salon admitted that she changed the grade of Manalo from one of failure (5.0)
to dropped (6.0) at the behest of a colleague, the mother of Manalo, to save the son from
being harmed by his father for his failing grade. Salon thought she was doing the family
of Manalo a favor, but her act produced the opposite result because the father himself
lodged a complaint against her for grade tampering;[42] as suspected all along, the
father was not satisfied with a grade of 6.0 for his son.

As in the case of unauthorized selling of examination papers, Salon's guilt is not erased
or mitigated by the fact that she meant well, or that she tried to rectify her indiscretion after
realizing that she violated the grading system of the school.[43] Two differences exist
between the examination paper selling violation and the present one. First, her
examination paper violation is largely a transgression against a school regulation. The
present one goes beyond a school violation; it is a violation against the Manual of
Regulation for Private Schools whose Section 79 provides: [44]

Sec. 79. Basis for Grading. The final grade or rating given to a pupil or
student in a subject should be based on his scholastic record. Any addition
or diminution to the grade x x x shall not be allowed.

Second, the present violation involves elements of falsification and dishonesty. Knowing
fully what Manalo deserved, Salon gave him a grade of 6.0 instead of a failing grade. In
the process, she changed in short, falsified her own records by changing the submitted
record and the supporting documents. Viewed in any light, this is Serious Misconduct
under Article 282(a) of the Labor Code, and a just cause for termination of employment.

Be that as it may, the mother of Manalo, being a teacher herself, should have been
questioned or investigated for urging Salon to give her son a passing grade. What Mrs.
Manalo did was in itself highly irregular and should have been subjected to disciplinary
action, in the interest of fairness.

The Due Process Issue

Salon claims that her right to due process was violated because her investigation was a
hoax,[45] a gripe session where the complaining students were allowed to engage in a
spontaneous barrage of malicious allegations against her, and where she was not
afforded an opportunity to defend herself and to be represented by a counsel of her own
choice or by a union representation. She adds that she was not given any notice before
her termination.

The records of the case belie these claims.

Salon was given the opportunity to show cause why she should not be dismissed. First, in
a Memorandum dated October 30, 2003[46] issued by Ms. Royer, Assistant Faculty
Coordinator of the HSSD, Salon was asked to explain why no disciplinary action should
be taken against her for selling photocopied examination papers. She was also furnished
a copy of the complaint of the father of Manalo regarding her tampering the grade of
Manalo.[47] Salon submitted her explanations to the two documents consisting of (a) her
letter dated October 31, 2004 addressed to Ms. Royer, where she admitted photocopying
the examination papers and charging her students P0.50 a page;[48] and (b) her letter
dated November 14, 2000 addressed to TIP President Dr. Teresita U. Quirino, where she
admitted changing the grade of Manalo.[49]
Second. An investigation was conducted by a committee created by the TIP, which
submitted a report/recommendation dated November 20, 2000, confirming the
unauthorized selling of examination papers and the tampering of the grade of Manalo. The
committee recommended Salon's dismissal.[50]

Third. In a memorandum dated December 4, 2000,[51] Dr. Quirino advised Salon that her
position as Faculty Member is terminated effective 30 days from receipt of the
memorandum.[52] This was her notice of termination the 2nd notice that statutory due
process requires in a dismissal situation.

Thus, not only was Salon notified in writing about the charges against her, she was given a
reasonable opportunity to explain her side; she was also called to an investigation where,
again, she had the opportunity to explain why she should not be dismissed. She was only
dismissed after the conclusion of the investigation and after she had been given a second
notice in writing that she was being terminated as a faculty member of the school. In short,
she has nothing to complain about in terms of the process she underwent that led to her
dismissal.

The Penalty

In the same breath that she justifies her actions, Salon entreats this Court to impose on
her a penalty less harsh than dismissal if she will be held accountable for her
misdeeds.[53]She points out in this regard that it was the first time that she was charged of
an offense, and that she had been with the school for more than ten (10) years already,
and there was no bad faith or malicious intention on her part.[54]

We do not find these entreaties sufficiently compelling or convincing as Salon is no

ordinary employee. She is a teacher from whom a lot is expected; she is expected to be
an exemplar of uprightness, integrity and decency, not only in the school, but also in the
larger community. She is a role model for her students; in fact, as she claims, she stands
in loco parenti to them. She is looked up to and is accorded genuine respect by almost
everyone as a person tasked with the heavy responsibility of molding and guiding the
young into what they should be productive and law-abiding citizens.
What Salon committed is a corrupt act, no less, that we cannot allow to pass without giving
a wrong signal to all who look up to teachers, and to this Court, as the models who should
lead the way and set the example in fostering a culture of uprightness among the young
and in the larger community. From the personal perspective, Salon demonstrated, through
her infractions, that she is not fit to continue undertaking the serious task and the heavy
responsibility of a teacher. She failed in a teachers most basic task in honestly rating the
performance of students. Her failings lost her the trust and confidence of her employer,
and even of her students.

Under the circumstances, our conclusion can only be for Salons dismissal for two counts
of valid causes i.e., for serious violation of TIPs Memorandum No. P-66, for unauthorized
selling of examination papers, and for serious misconduct, for falsifying Manalos grade
and violating the grading rules under the Manual of Regulations for Private Schools.

The affirmation of the penalties the CA imposed brings into focus the appellate courts
award of separation pay in consideration of her more than 10 years of service with
TIP.[55]Given the finding of guilt and the penalty imposed, no basis exists to support and
justify this award. No court, not even this Court, can make an award that is not based on
law.[56] Neither can this award be justified even if viewed as a discretionary financial
assistance, since this kind of award can be imposed only where the cause for dismissal
is not serious misconduct or a cause reflecting on the employees moral character. [57] The
dismissal we affirm is precisely for serious misconduct. The causes cited reflect as well
on Salons moral character. Hence, we delete any award of separation pay/financial
assistance that the appellate court decreed.
WHEREFORE, premises considered, we hereby DENY the petition for lack of merit. We
hereby AFFIRM the amended decision of the Court of Appeals promulgated on May 22,
2003, but DELETE the award of separation pay. Costs against the petitioners.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
 Associate Justice
Chairperson

CONSUELO YNARES-SANTIAGO MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision
were reached in consultation before the case was assigned to the writer of the opinion of
the Courts Division.

REYNATO S. PUNO
Chief Justice
 Republic of the Philippines
Supreme Court
Manila

SECOND DIVISION

OFFICE OF THE OMBUDSMAN, G.R. No. 172635

Petitioner,
Present:

CARPIO, J., Chairperson,

NACHURA,
- versus - LEONARDO-DE CASTRO,*
PERALTA, and
MENDOZA, JJ.

Promulgated:
PEDRO DELIJERO, JR.,
Respondent. October 20, 2010
x-----------------------------------------------------------------------------------------x

DECISION

PERALTA, J.:

Before this Court is a petition for review on certiorari,[1] under Rule 45 of the Rules of Court,
seeking to set aside the June 7, 2005 Decision[2] and May 2, 2006 Resolution[3]of the Court
of Appeals (CA), in CA-G.R. SP No. 00017.

The facts of the case, as culled from the records, are as follows:

Respondent Pedro Delijero, Jr., was a public school teacher at

the Burauen Comprehensive National High School, Burauen, Leyte and was
administratively charged for Grave Misconduct.

A complaint against respondent was filed before petitioner Office of the Ombudsman as a
Request for Assistance (RAS) from the President of the Burauen Watchdog Committee
for Good Government. Philip Camiguing, Graft Prevention & Control Officer I, submitted
his final evaluation report and recommended that the RAS be upgraded into an
administrative and criminal complaint against respondent.[4]

The complainant, Cleofas P. dela Cruz, was the mother of the alleged victim Myra dela
Cruz (Myra). At the time of the incident, Myra was only 12 years old and a first year high
school student at the Burauen Comprehensive National High School. Respondent, on the
other hand, was Myra's 52-year-old Mathematics teacher.[5]

Sometime in May 2003, complainant learned from her cousin that respondent was courting
her daughter Myra. Complainant then immediately confronted Myra, who admitted having
received from respondent several handwritten love letters, a Valentine's card and Two
Hundred Pesos as allowance.[6]

In her Affidavit,[7] Myra gave the following declarations, to wit:

xxxx

2. Sometime on August 12, 2002, our Mathematics

teacher, Mr. Pedro Delijero, started courting me, by sending love notes,
valentines cards thru my classmates Angelyn del Pilar, Maricel Gayanes,
Irene Cajote;

3. Last April 7, 2003, at about 10:00 a.m., more or less, my

math teacher, Mr. Pedro Delijero, who was inside his room, [called] my
attention, and as I got inside the said room, he abruptly closed the open
door, thereby, immediately kissed my cheek, out of fear, I pushed him away
from me, and I rushed to the door of said room and went outside.[8]
Maricel Gayanes, Irene Cajote and Angelyn del Pilar, all classmates of Myra, submitted
their Joint Affidavit[9] the pertinent portions of which read:

xxxx

In several instances, which we cannot anymore recall the dates, we

were requested by our Math teacher Mr. Pedro Delijero, Jr. to handed the
letters to my classmate Myra Dela Cruz,

4. We have the knowledge of all the letters sent to her,

as LOVE LETTERS as it was confirmed by our classmate Myra dela Cruz,
that those letters which we brought to her, were all love letters from our Math
teacher, Mr. Pedro Delijero, since Mr. Delijiro is courting her, same were
true with regard to Valentine's Cards, as well as the 2 pieces of One
Hundred Peso Bill (P100.00) being inserted at the intermediate pad paper, x
xx

Respondent submitted a Counter-Affidavit[10] in his defense. Respondent denied

kissing Myra in the morning of April 7, 2003. Moreover, respondent claimed that Myra fell
in love with him and wrote him love letters. Respondent claimed that he was merely forced
to answer her letters as she threatened him that she would kill herself if he would not
answer her and reciprocate her love. Lastly, respondent claimed that their relationship
was merely platonic.

Petitioner called the parties to a preliminary conference and, after which, ordered them to
submit their respective position papers.

Respondent, however, did not submit a position paper but instead submitted a
Manifestation[11] stating that the administrative aspect of the complaint was likewise the
subject of a complaint filed by complainant before the Office of the Regional Director,
Department of Education, Regional Office VIII, Palo, Leyte.
On May 17, 2004, petitioner rendered a Decision[12] finding respondent guilty of Grave
Misconduct and meted him the penalty of dismissal, the dispositive portion of which reads:

WHEREFORE, premises considered, this Office finds respondent

PEDRO DELIJERO, JR. guilty of Grave Misconduct and, pursuant to Section
46 (b) of the Revised Administrative Code of 1987, he is, therefore, meted
the penalty of DISMISSAL from public service, forfeiture of all benefits and
perpetual disqualification to hold public office.

SO DECIDED.[13]

Respondent moved for a reconsideration[14] of petitioner's decision. Respondent asked

that the order of dismissal be reconsidered and, instead, be changed to a penalty of
suspension. On May 14, 2004, petitioner issued an Order[15] denying respondent's motion
for reconsideration.

Aggrieved, respondent then appealed to the CA.

On June 7, 2005, the CA rendered a Decision ruling in favor of respondent, the dispositive
portion of which reads:

WHEREFORE, in view of the foregoing premises, judgment is hereby

rendered by us GRANTING the petition filed in this case and SETTING
ASIDE the Decision dated May 17, 2004 and the Order dated July 30,
2004 rendered and issued by the Office of the Ombudsman in OMB-VIS-A-
03-0506-4.

IT IS SO ORDERED.[16]

The CA, without ruling on the issues raised by respondent, instead tackled the issue of
jurisdiction motu proprio. The CA ruled that petitioner had no jurisdiction to investigate the
complaint filed before it as Republic Act No. 4670 (RA 4670), the Magna Carta for Public
School Teachers, specifically covers and governs administrative proceedings involving
public school teachers. The CA held that petitioner should have immediately dismissed
the case after respondent had informed it, through a manifestation, of the pendency of an
administrative complaint before the DECS. Moreover, the CA ruled that even
assuming arguendo that petitioner had the power to investigate the complaint, it still had
no power to directly impose sanctions against respondent as its power is limited to only
recommend the appropriate sanctions, but not to directly impose the same.

Petitioner then filed an Omnibus Motion to Intervene and for Reconsideration[17] assailing
the Decision of the CA. On May 2, 2006, the CA issued a Resolution denying petitioner's
motion.

Hence, herein petition, with petitioner raising the following issues for this Court's
resolution, to wit:

I.
 THE OFFICE OF THE OMBUDSMAN HAS FULL AND COMPLETE
ADMINISTRATIVE DISCIPLINARY AUTHORITY OVER PUBLIC SCHOOL
TEACHERS, WHICH AUTHORITY IS CONCURRENT WITH OTHER
DISCIPLINING AUTHORITIES SANCTIONED BY NO LESS THAN
REPUBLIC ACT NO. 4670, OTHERWISE KNOWN AS THE MAGNA
CARTA FOR PUBLIC SCHOOL TEACHERS, AND THE CIVIL SERVICE
LAW (PD 807, BOOK V OF EO 292).

II.
SECTION 9 OF REPUBLIC ACT NO. 4670 (MAGNA CARTA FOR PUBLIC
SCHOOL TEACHERS) HAS NOT ADDED PUBLIC SCHOOL TEACHERS
TO THE LIST OF SPECIAL PRIVILEGED CLASSES OF PUBLIC
SERVANTS EXEMPTED FROM THE OMBUDSMAN'S ADMINISTRATIVE
DISCIPLINARY AUTHORITY UNDER THE 1987 CONSTITUTION, AND
ANY SUCH INTERPRETATION SUFFERS FROM THE VICE OF
UNCONSTITUTIONALITY.

III.
THE ISSUE OF WHETHER OR NOT THE OMBUDSMAN HAS THE
AUTHORITY TO DETERMINE THE ADMINISTRATIVE LIABILITY OF AN
ERRING PUBLIC OFFICIAL OR EMPLOYEE, AND TO DIRECT AND
COMPEL THE HEAD OF THE CONCERNED OFFICE OR AGENCY TO
IMPLEMENT THE PENALTY IMPOSED, HAS ALREADY BEEN SETTLED
BY THE HONORABLE COURT IN THE CASE OF LEDESMA VS COURT
OF APPEALS, ET AL., 465 SCRA 437 (2005).[18]

The petition is meritorious.

This Court shall jointly discuss the first and second issues as the same are interrelated.
Petitioner mainly argues that its administrative disciplinary authority over public school
teachers is concurrent with the Department of Education, Culture and Sports (DECS)
disciplining authority.

Petitioner is correct. The issue is not novel.

In Office of the Ombudsman v. Medrano,[19] (Medrano) this Court ruled that the
administrative disciplinary authority of the Ombudsman over a public school teacher is not
an exclusive power but is concurrent with the proper committee of the DECS, to wit:

In resolving the second issue whether petitioner has jurisdiction over the
administrative complaint against respondent it is necessary to examine the
source, nature and extent of the power and authority of the
Ombudsman vis--vis the provisions of the Magna Carta for Public School
Teachers.

Section 5, Article XI of the Constitution created the independent Office of

the Ombudsman. Hailed as the protectors of the people, the Ombudsman
and his Deputies are bestowed with overreaching authority, powers,
functions, and duties to act on complaints against public officials and
employees, as provided in Sections 12 and 13 thereof, thus:

Sec. 12. The Ombudsman and his

Deputies, as protectors of the people,
shall act promptly on complaints filed in any form or manne
r against public officials or employees of theGovernment, o
r any subdivision, agency or instrumentality thereof, includi
 ng government-owned or controlled corporations, and
shall, in appropriate cases, notify the complainants of the
action taken and the result thereof.

Sec. 13. The Office of the Ombudsman shall have the

following powers, functions, and duties:

(1) Investigate on its own, or on complaint by any

person, any act or omission of any public official, employe
e, office or agency, when such act or omission appears to
beillegal, unjust, improper, or inefficient;

(2) Direct, upon complaint or at its own instance, any public

official or employee of the Government, or any subdivision,
agency or instrumentality thereof, as well as of any
government-owned or controlled corporation with original
charter, to perform and expedite any act or duty required by
law, or to stop, prevent, and correct any abuse or
impropriety in the performance of duties;

(3) Direct the officer concerned to take appropriate action

against a public official or employee at fault, and
recommend his removal, suspension, demotion, fine,
censure, or prosecution, and ensure compliance therewith;

(4) Direct the officer concerned, in any appropriate case,

and subject to such limitations as may be provided by law,
to furnish it with copies of documents relating to contracts or
transactions entered into by his office involving the
disbursement or use of public funds or properties, and report
any irregularity to the Commission on Audit for appropriate
action;

(5) Request any government agency for assistance and

information necessary in the discharge of its responsibilities,
and to examine, if necessary, pertinent records and
documents;

(6) Publicize matters covered by its investigation when

circumstances so warrant and with due prudence;

(7) Determine the causes of inefficiency, red tape,

mismanagement, fraud, and corruption in the Government
and make recommendations for their elimination and the
observance of high standards of ethics and efficiency; and

(8) Promulgate its rules of procedure

and exercise such other powers or perform such functions
or duties as may be provided by law. (Underscoring
supplied)

The above enumeration of the Ombudsmans far-reaching powers is not

exclusive as the framers of the Constitution gave Congress the leeway to
prescribe, by subsequent legislation, additional powers, functions or duties
to the Ombudsman, as mandated in Section 13(8), quoted above.

Pursuant to the constitutional command, Congress enacted R.A. No. 6770

(The Ombudsman Act of 1989) providing for the functional, structural
organization, and the extent of the administrative disciplinary authority of
the petitioner. The provisions of this law apply
to all kinds of malfeasance, misfeasance, and nonfeasance committed by
any officer or employee of the Government, or of any subdivision, agency
or instrumentality thereof, including government-owned or controlled
corporations, during his tenure in office. The acts or omissions which the
petitioner may investigate are quite extensive:

SEC. 19. Administrative Complaints. The Ombudsman

shall act
on all complaints relating, but not limited, to acts or omissi
ons which:

(1) Are contrary to law or regulation;

(2) Are unreasonable, unfair, oppressive or discriminatory;
(3) Are inconsistent with the general course of an agencys
functions, though in accordance with law;
(4) Proceed from a mistake of law or an arbitrary
ascertainment of facts;
(5) Are in the exercise of discretionary powers but for an
improper purpose; or
(6) Are otherwise irregular, immoral or devoid of
justification.

Its mandate is not only to act promptly on complaints against such public
officers or employees, but also to enforce their administrative, civil and
criminal liability in every case where theevidence warrants in order to pro
mote efficient service by the Government to the people.

R.A. No. 6770, however, restrains the petitioner from exercising its
disciplinary authority over
officials who may be removed only by impeachment or over Members of
Congress and theJudiciary, thus:

SEC. 21. Officials Subject to Disciplinary Authority;

Exceptions. The Office of the Ombudsman shall
have disciplinary authority over all elective and appointive
officials of theGovernment and its subdivisions,
instrumentalities and agencies, including Members of the
Cabinet, local government, government-owned or controlled
corporations and their
subsidiaries, except over officials who may be removed
only by impeachment or over Members of Congress an
d the Judiciary.

SEC. 22. Investigatory Power. The Office of the

Ombudsman shall have the power to investigate any serious
misconduct in office allegedly committed by officials
removable by
impeachment, for the purpose of filing a verified complaint f
or impeachment, if warranted.

In all cases of conspiracy between an officer or employee of

the government and a private person, the Ombudsman and
his Deputies shall have jurisdiction to include such private
person in the investigation and proceed against such private
person as the evidence may warrant. The officer or
employee and the private person shall be tried jointly and
shall be subject to the same penalties and
liabilities. (Underscoring supplied)
The above constitutional and statutory provisions taken together reveal the
manifest intent of the lawmakers to bestow upon the
petitioner full administrative disciplinary power over public officials and
employees except those impeachable officials, Members of Congress and
of the Judiciary.

When an administrative charge is initiated against a public school teacher,

however, Section 9 of the Magna Carta for Public School
Teachers specifically provides that the same shall be heard initially by
an investigating committee composed of the school superintendent of the
division, as chairman, a representative of the local or, in its absence, any
existing provincial or national teachers organization, and a supervisor of
the division, as members, thus:

SEC. 9. Administrative
Charges. Administrative charges against a teacher shall
be heard initially by a committee composed of the
corresponding Schools Superintendent of theDivision or a
duly authorized representative who should at least have the
rank of a division supervisor, where the teacher belongs, as
chairman, a representative of the local or, in its absence,
any existing provincial or
national teachers organization and a supervisor of the Divi
sion, the last two to be designated by the Director of Public
Schools. Thecommittee shall submit its findings and
recommendations to the Director of Public Schools within t
hirty days from termination of the hearings; Provided,
however, That where the school superintendent is the
complainant or an interested party, all the members of the
committee shall be appointed by the Secretary of Education.
(Underscoring supplied)

In Fabella v. Court of Appeals, the Court held:

The legislature enacted a special law, RA 4670 known as the Magna Carta
for Public School Teachers,
which specifically covers administrative proceedings involving public sch
ool teachers. Section 9 of said law expressly provides that the committee
to hear public school teachers administrative cases should be composed
of the school superintendent of the division as chairman, a representative
of the local or any existing provincial or national teachers organization, and
a supervisor of the division. x x x.

xxxx

The
aforementioned Section 9 of RA 4670, therefore, reflects the legislative int
ent to impose a standard and a separate set of procedural requireme
nts in connection with administrativeproceedings involving public s
choolteachers. x x x. (Emphasis and underscoring supplied)

Significantly, The Ombudsman Act of 1989 recognizes the existence of

some proper disciplinary authorit[ies], such as the investigating committee
of the DepEd mentioned in Section 9 of the Magna Carta for Public School
Teachers. Thus, Section 23 of The Ombudsman Act of 1989 directs that
the petitioner may refer certain complaints to
the proper disciplinary authority for theinstitution of appropriate administra
tive proceedings against erring public officers or employees.

In light of this, the Court holds that the administrative disciplinary

authority of the Ombudsman over a public school teacher
 is not an exclusive power but is concurrent with the proper
committee of the DepEd.

In the instant case, respondent, although designated as then OIC of a

public school and concurrently the school principal of another public school,
is undoubtedly covered by the definition of the term teacher under the
second paragraph of Section 2 of the Magna Carta for Public School
Teachers which provides:

SEC 2. Title Definition. This Act shall x x x apply to all

public school teachers except those in the professorial staff
of state colleges and universities.

As used in this Act, the term teacher shall mean all persons
engaged in the classroom, in any level of instruction; on full
time basis, including guidance counselors, school librarians,
industrial arts or vocational
instructors, and all other persons performing supervisory a
nd/or administrative functions in all schools, colleges and
universities operatedby the Government or its political sub
divisions; but shall not include school nurses, school
physicians, school dentists, and other school employees.
(Underscoring supplied)

Thus, the administrative complaint against respondent should have been

referred by petitioner to the proper committee of the DepEd for the
institution of appropriate administrative proceedings, in light of Section 23
of The Ombudsman Act of 1989.[20]

Based on the foregoing, while petitioner has concurrent administrative disciplinary

authority with the DECS over public school teachers, Section 23 of the Ombudsman Act
of 1989 provides that the Ombudsman may refer a complaint to the proper disciplinary
authority. Under the circumstances obtaining herein, it would have been more prudent for
petitioner to have referred the complaint to the DECS given that it would have been in a
better position to serve the interest of justice considering the nature of the controversy.
Respondent is a public school teacher and is covered by RA 4670, therefore, the
proceedings before the DECS would have been the more appropriate venue to resolve
the dispute.

In any case, the foregoing pronouncement does not automatically mean that this Court is
nullifying the proceedings before the Ombudsman as estoppel has already set in.

In Medrano, this Court ruled that the active participation of an individual before the
administrative proceedings and the belated challenge to the jurisdiction of the said body
bars him from assailing such acts under the principle of estoppel, to wit:
x x x While petitioner should have desisted from hearing the administrative
complaint against respondent and referred it to the proper DepEd
committee, given that it had already concluded the proceedings and had
rendered a decision thereon, respondent is now barred from assailing
petitioners acts under the principle of estoppel. He had actively participated
in the administrative proceedings before petitioner. In his Counter-Affidavit,
he asked petitioner for affirmative relief by seeking the dismissal of the
administrative complaint allegedly for being baseless. From then on, he was
assisted by counsel in filing several motions. When he was preventively
 suspended for six months without pay, he filed a Motion for Reconsideration
praying that a new Order be issued reversing or setting aside the preventive
suspension Order. When this was denied, he again filed a Supplemental
Motion for Reconsideration for the lifting of his suspension since he was
already replaced as OIC, which motion was granted. It was
only after petitioner had rendered an adverse Decision that he, in a Motion
for Reconsideration, impugned petitioners assumption of jurisdiction over his
case. Verily, respondent cannot be permitted to challenge petitioners acts
belatedly. (Underscoring supplied).[21]

Likewise, in Office of the Ombudsman v. Galicia,[22] this Court ruled that the right to due
process was not violated, notwithstanding that the DECS had original jurisdiction to hear
the complaint, thus:
In the present case, records show that Galicia was given the right to
due process in the investigation of the charges against him. He participated
in the proceedings by making known his defenses in the pleadings that he
submitted. It was only when a decision adverse to him was rendered did he
question the jurisdiction of the Ombudsman.

Under the principles of estoppel and laches, We rule that it is now

too late for Galicia to assail the administrative investigation conducted and
the decision rendered against him.
xxxx
The essence of due process in administrative proceedings is an
opportunity to explain ones side or an opportunity to seek reconsideration of
the action or ruling complained of. During the proceedings before the
Ombudsman, Galicia filed a Counter-Affidavit, Rejoinder-Affidavit,
Comment on the Certification of the CCPC Registrar, and a Rejoinder to
Reply. He also submitted documents in support of his contentions. Likewise,
there is no indication that the proceedings were done in a manner that would
prevent him from presenting his defenses. Verily, these suffice to satisfy the
requirements of due process because the opportunity to be heard especially
in administrative proceedings (where technical rules of procedure and
evidence are not strictly applied) is not limited to oral arguments. More often,
this opportunity is conferred through written pleadings that the parties submit
to present their charges and defenses.

In sum, We reiterate that it is the School Superintendent and not the

Ombudsman that has jurisdiction over administrative cases against public
school teachers. Yet, Galicia is estopped from belatedly assailing the
jurisdiction of the Ombudsman. His right to due process was satisfied when
he participated fully in the investigation proceedings. He was able to present
evidence and arguments in his defense. The investigation conducted by the
Ombudsman was therefore valid.[23]

In the case at bar, respondent actively participated in the proceedings before the
Ombudsman. He submitted his counter-affidavit, an affidavit of his witness, and attached
annexes. Respondent even filed a Motion for Reconsideration asking for affirmative relief
from the Ombudsman.

The case at bar is, however, somewhat peculiar because when petitioner asked
the parties to submit their position papers, respondent did not submit one and instead filed
a Manifestation[24] informing petitioner of another proceeding before the DECS, to wit:
 xxxx

2. That the administrative aspect of the complaint is

likewise the subject of a complaint filed by the complainant before the Office
of the Regional Director, DepEd, Regional Office VIII, Government Center,
Palo, Leyte, a copy of which complaint is hereto attached and also made as
part of this manifestation.

3. The with the investigation being made by this office, and

the filing of the complaint with the Court as regard the criminal aspect of the
complainant, and the pendency of the administrative complaint before the
DepEd, it appears that the respondent is being charged and made to answer
twice for the same offense.

4. That with the submission of the foregoing

manifestation, and the respondent having already filed his counter
affidavit and the affidavit of his witnesses and the exhibits attached
thereto, the respondent submits the same for the resolution of this
Office.[25]

The CA ruled that in view of respondent's manifestation, petitioner should have

immediately dismissed the case filed before it as the DECS has the proper jurisdiction to
hear and determine the administrative complaint over respondent.

We disagree.

To this Court's mind, the foregoing manifestation cannot by any stretch be

considered as a direct attack on the proceedings before the Ombudsman. A plain reading
of such manifestation would even lead to a conclusion that respondent had in fact
submitted himself to the body's jurisdiction as he had already submitted his counter-
affidavit, an affidavit of his witness and exhibits. If respondent wanted to assail the
jurisdiction of the Ombudsman, he should have clearly prayed for the same through a
motion to dismiss, a manifestation ad cautelam, or any other document of similar import.
The phrase, the respondent submits the same for the resolution of this Office, is indicative
of respondent's submission to the Ombudsman's jurisdiction. Such conclusion is even
bolstered by the fact that when respondent filed his petition for review before the CA, he
made the following declaration, to wit:

9. That with the filing of his counter-affidavit, and the

affidavit of his witnesses, and the filing of a criminal case by the respondent
against petitioner, which criminal case is now still pending before the
Regional Trial Court, Branch 15, Burauen, Leyte, and another administrative
complaint with the Regional Director, Region VIII, of DepEd, Government
Center, Palo, Leyte,petitioner filed a manifestation with the
Ombudsman-Visayas, submitting this case for resolution. x x x[26]

Lastly, anent the third issue raised by petitioner, the same is again meritorious.
 The CA ruled that the power of the Ombudsman is only recommendatory and that
it cannot impose sanctions against respondent. Petitioner, for its part, argues that the
Office of Ombudsman has the authority to determine the administrative liability of an erring
public official or employee, and to direct and compel the head of the concerned officer or
agency to implement the penalty imposed.

Petitioner is correct.

In Office of the Ombudsman v. Masing,[27] this Court settled that the power of the
Ombudsman to determine and impose administrative liability is not merely
recommendatory but actually mandatory, to wit:
We reiterated this ruling in Office of the Ombudsman v.
Laja, where we emphasized that the Ombudsmans order to remove,
suspend, demote, fine, censure, or prosecute an officer or employee is not
merely advisory or recommendatory but is actually mandatory.
Implementation of the order imposing the penalty is, however, to be
coursed through the proper officer. Recently, in Office of the
Ombudsman v. Court of Appeals, we also held

While Section 15(3) of RA 6770 states that the Ombudsman

has the power to recommend x x x removal, suspension,
demotion x x x of government officials and employees, the
same Section 15(3) also states that the Ombudsman in the
alternative may enforce its disciplinary authority as
provided in Section 21 of RA 6770. (Emphasis
supplied.)[28]

This Court notes that the CA granted respondent's petition on the sole ground of
petitioner's alleged lack of jurisdiction which it tackled motu proprio. The CA did not
discuss the other issues raised by respondent involving the appreciation of the findings of
fact of the Ombudsman as well as respondent's appeal for the imposition of a lesser
penalty. Just like in Medrano, given the evidentiary nature of respondent's appeal, this
Court deems that justice would be best served to remand the case to the CA for it to decide
the case on the merits.

WHEREFORE, the petition is GRANTED. The assailed Court of Appeals Decision dated
June 7, 2005 and Resolution dated May 2, 2006, in CA-G.R. SP No.
00017, are REVERSED and SET ASIDE. The case is REMANDED to the Court of
Appeals which is directed to decide the case on the merits.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:
 ANTONIO T. CARPIO
Associate Justice
Chairperson

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO
Associate Justice
Second Division, Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons
Attestation, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Courts
Division.

RENATO C. CORONA
Chief Justice

*
Designated as an additional member in lieu of Associate Justice Roberto A. Abad, per
Special Order No. 905, dated October 5, 2010.
[1]
Rollo, pp. 9-37.
[2]
Penned by Associate Justice Isaias P. Dicdican, with Associate Justices Vicente L. Yap
and Enrico A. Lanzanas, concurring; id. at 39- 46.
[3]
Id. at 49-51.
[4]
CA rollo, p.21.
[5]
Id.
[6]
Id.
[7]
Id. at 32.
[8]
Id.
[9]
Id. at 33.
[10]
Id. at 35.
[11]
Id. at 37.
[12]
Id. at 21-23.
[13]
Id. at 23.
[14]
Id. at 24-26.
[15]
Id. at 27-28.
[16]
Rollo, p. 45.
[17]
CA rollo, pp. 100-134.
[18]
Rollo, pp. 17- 18.
[19]
G.R. No. 177580, October 17, 2008, 569 SCRA 747.
[20]
Id. at 758-763.
[21]
Id. at 764.
[22]
G.R. No. 167711, October 10, 2008, 568 SCRA 327.
[23]
Id. at 343-344.
[24]
CA rollo, pp. 37-38.
[25]
Id. (Emphasis and underscoring supplied.)
[26]
CA rollo, p. 11. (Emphasis supplied.)
[27]
G.R. Nos. 165416, 165584 and 165731, January 22, 2008, 542 SCRA 253.
[28]
Id. at 272. (Emphasis supplied.)
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No.177580 October 17, 2008

OFFICE OF THE OMBUDSMAN, petitioner,

vs.
VICTORIO N. MEDRANO, respondent.

DECISION

CARPIO MORALES, J.:

Challenged via Petition for Review on Certiorari are the Decision1 dated June 29, 2006
and Resolution dated April 2, 2007 of the Court of Appeals in CA-G.R. SP No.
931652 which nullified the Decision dated July 19, 2004 of the Office of the
Ombudsman (petitioner), as modified, finding Victorio N. Medrano (respondent) guilty of
sexual harassment in the administrative complaint against him and dismissed the said
complaint for lack of jurisdiction.

Sometime in May 2003, Ma. Ruby A. Dumalaog (Ma. Ruby), a teacher at Jacobo Z.
Gonzales Memorial National High School in Biñan, Laguna (the school), filed a sworn
letter-complaint3 before the Office of the Ombudsman (for Luzon) charging her superior–
herein respondent, Officer-In-Charge (OIC) of the school and concurrently the principal
of San Pedro Relocation Center National High School in San Pedro, Laguna, with
(1) violation of Republic Act (R.A.) No. 7877 (Anti-Sexual Harassment Act of 1995),
docketed as OMB-L-C-03-0613-E (criminal case), and (2) grave misconduct, docketed
as OMB-L-A-03-0488-E (administrative case).

The administrative complaint, in essence, alleged that in the afternoon of March 28,
2003, respondent made sexual advances on Ma. Ruby and abused her sexually.

In his Counter-Affidavit,4 respondent denied the charge, claiming that it was "maliciously
designed to harass and threaten him to succumb to Ma. Ruby’s demand that she be
given a regular teaching post." He thus prayed for the dismissal of the complaint.

While the administrative case was pending investigation, Ma. Ruby filed an Urgent Ex-
Parte Motion for Preventive Suspension,5 alleging that respondent was "using the
powers of his office by utilizing his subordinates in harassing her." By Order6 of July 29,
2003, petitioner granted the motion and ordered the preventive suspension of
respondent for six (6) months without pay.

Respondent, this time assisted by counsel, Atty. Alan P. Cabaero, moved for the lifting of
the preventive suspension Order on the ground that the evidence of his guilt is not
strong.7 It was denied.

Undaunted, respondent filed a Supplemental Motion for Reconsideration8 alleging that

the Schools Division Superintendent Lilia T. Reyes had already designated Hereberto
Jose D. Miranda as the new OIC of the school in his stead, effective September 1, 2003.
By Order9 of October 16, 2003, petitioner lifted the preventive suspension Order.

By Decision10 of July 19, 2004 rendered in the administrative case, petitioner adjudged
respondent guilty of grave misconduct and imposed upon him the penalty of dismissal
from the service.

With respect to the criminal case, petitioner, by Resolution11 of July 19, 2004, found
probable cause to indict respondent for violation of the Anti-Sexual Harassment Act of
1995. An information for violation of said Act, docketed as Criminal Case No. 29190
before the Metropolitan Trial Court (MeTC) of Biñan, Laguna, was in fact filed.

Respondent moved for reconsideration of petitioner’s issuances in both cases.

Respecting the administrative case,12 he assailed not only the factual findings and
conclusions of petitioner, but, for the first time, he challenged its jurisdiction over the
case. He argued that under Section 9 of R.A. No. 4670 (the Magna Carta for Public
School Teachers), an administrative complaint against a public school teacher should
be heard by an investigating committee of the Department of Education Culture &
Sports, now Department of Education (DepEd), composed of the school superintendent
of the division where the teacher belongs, a representative from a teachers’
organization, and a supervisor of the division. He thus prayed for the dismissal of the
administrative case as petitioner has no jurisdiction over it.

By Joint Order13 of April 8, 2005, petitioner affirmed its Resolution in the criminal case
but modified its Decision in the administrative case by finding respondent guilty of sexual
harassment, instead of grave misconduct, and meted on him the penalty of suspension
from the service for one (1) year, without pay.

Dissatisfied, respondent filed a Petition for Review (with prayer for the issuance of a
Temporary Restraining Order and/or Writ of Preliminary Injunction) 14 before the Court of
Appeals, assailing petitioner’s decision in the administrative case, attributing to it grave
abuse of discretion amounting to lack or excess of jurisdiction when it –

. . . assumed jurisdiction over the administrative case against

petitioner, although under R.A. 4670, otherwise known as the Magna Carta for Public
School
Teachers, only the appropriate committee ofthe Department of Education has exclu
sive jurisdiction to hear and try administrative complaintsagainst public school
teachers.

II

. . . denied him his right to present before the Graft Investigation Officer the text
messages sent by complainant which would have established the fact that the sexual
harassment charge did not actually happen. x x x

III

. . . totally ignored his overwhelming evidence positively establishing his presence in

another place at the time the alleged acts of sexual harassment were committed against
complainant.

IV

. . . found him guilty of sexual harassment and imposed upon him the penalty of one (1)
year suspension from the service.15 (Underscoring supplied)

By the now assailed Decision of June 29, 2006, the appellate court annulled petitioner’s
July 19, 2004 Decision, as modified, in the administrative case and dismissed the
complaint on the sole ground that petitioner has no jurisdiction over it. It held that
although respondent raised the issue of jurisdiction only after petitioner rendered an
adverse decision, "the rule on estoppel will not apply against [Medrano]" because such
jurisdictional issue was raised "when the case was still before the Ombudsman."16 It thus
found no need to address the other issues raised by respondent.

Petitioner’s Motion for Reconsideration17 of the appellate court’s Decision was denied by
Resolution18 of April 2, 2007, hence, the present Petition for Review on Certiorari.
Petitioner contends that the Court of Appeals erred in not ruling that it (petitioner)
has concurrent jurisdiction with the DepEd over the administrative complaint against
respondent.19

Instead of filing a comment on the present petition as directed, respondent filed

a Manifestation With Motion In Lieu Of Comment20 praying that "the instant petition be
dismissed for being moot and academic" in view of the execution of an Affidavit of
Desistance21 by Ma. Ruby on September 17, 2007 before Assistant Provincial
Prosecutor Ramonito Delfin of Biñan, Laguna, as well as the Order22 of even date issued
by the MeTC of Biñan dismissing the criminal case23 against him due to her lack of
interest to prosecute the case.

In her Affidavit of Desistance, Ma. Ruby stated, inter alia:

2. That in retrospect and after an objective and sincere review of the events that led to
the filing of the instant cases [referring to the criminal and administrative cases], I am
now fully enlightened that said incident was just a product of mistake of fact and clear
misunderstanding between me and the accused/respondent, who after all,
was not actually criminally nor immorally motivated to do any formof offense/harm to my
person. Thus, I
am now retracting everything I said against theaccused/respondent in my letter-
complaint with the Office of the Ombudsman dated May 13, 2003, which became the
basis for the filing of the criminal and administrative cases against him;

3. That x x x, I am no longer interested in pursuing the criminal and administrative cases

I filed against Mr. Victorio N. Medrano, and is now requesting the Honorable Court
[referring to the trial court in the criminal case], the Office of the Ombudsman or the
Honorable Supreme Court with whom the administrative case is pending, to dismiss the
said cases. (Underscoring supplied)

Petitioner opposes respondent’s move, contending that Ma. Ruby’s Affidavit of

Desistance and the dismissal of the criminal case do not constitute legal bases for
dismissing the present petition and the administrative complaint.

The issues for resolution are:

1. Whether the petition has become moot and academic, Ma. Ruby having executed an
affidavit of desistance and the criminal case having been dismissed due to her lack of
interest to prosecute the same;

2. Whether petitioner has jurisdiction over the administrative complaint against

respondent; and

3. Whether respondent is estopped to question petitioner’s assumption of jurisdiction

over the administrative complaint.

With respect to the first issue, the Court holds in the negative.

The flaw in respondent’s argument that the execution of Ma. Ruby’s Affidavit of
Desistance and the dismissal of the criminal case must result in the dismissal of the
administrative case is that it ignores the whale of a difference between those two
remedies. In Gerardo R. Villaseñor and Rodel A. Mesa v. Sandiganbayan and Louella
Mae Oco-Pesquerra (Office of the Special Prosecutor, Ombudsman),24 the Court
stressed the distinct and independentcharacter of the remedies available to an offended
party against any impropriety or wrongdoing committed by a public officer, thus:

Significantly, there are three kinds of remedies available against a public officer for
impropriety in the performance of his powers and the discharge of his duties: (1) civil,
(2) criminal, and
(3) administrative. These remedies may be invoked separately, alternately, simultaneous
ly or successively. Sometimes, the same offense may be the subject of all three kinds of
remedies.

Defeat of any of the three remedies will not necessarily preclude resort to other remedie
s or affectdecisions reached thereat, as different degrees of evidence are required in the
se several actions. In criminal cases, proof beyond reasonable doubt is needed,
whereas a mere preponderance of evidence will suffice in civil cases. In administrative
cases, only substantial evidence is required.

It is clear, then, that criminal and administrative cases are distinct from each
other. The settled rule isthat criminal and civil cases are altogether different from a
dministrative matters, such that thefirst two will not inevitably govern or affect the
third and vice versa. Verily, administrative casesmay proceed independently of th
e criminal proceedings. (Underscoring supplied)

At any rate, an affidavit of desistance (or recantation) is, as a rule, viewed with suspicion
and reservation because it can easily be secured from a poor and ignorant witness,
usually through intimidation or for monetary consideration.25 And there is always the
probability that it would later be repudiated, and criminal prosecution would thus be
interminable.26 Hence, such desistance, by itself, is not usually a ground for the
dismissal of an action once it has been instituted in court.27

The suspicious and unreliable nature of Ma. Ruby’s Affidavit of Desistance is

evident. Firstly, her affidavit was executed only on September 17, 2007 or more than
three (3) years after petitioner had rendered its July 19, 2004Decision, as modified by its
Joint Order of April 8, 2005 finding respondent guilty of sexual harassment. Secondly,
unlike her six-page sworn letter-complaint of May 13, 2003 wherein she narrated in her
own Pilipino dialect the factual details of respondent’s acts complained of, Ma. Ruby’s
one-page Affidavit of Desistance is couched in English with legal terms
and conclusions only one with a trained legal mind can formulate, e.g., "I am now fully
enlightened that said incident was just a product of mistake of fact and clear
misunderstanding between me and the accused/respondent, who after all,
was not actually criminally nor immorally motivated to do any form ofoffense/harm to my
person." Thirdly, Ma. Ruby’s Affidavit is bereft of any factual particulars, engendering
more questions that bolster its unreliability, e.g.: What was the "misunderstanding"
between her and respondent? How was she "fully enlightened" about the whole
incident? How did she arrive at her conclusion that he "was not actually criminally nor
immorally motivated to do any form of offense/harm" against her person?

In fine, the bases of respondent’s plea to have the present petition dismissed do not
obliterate his liability in the administrative case subject of the present petition.

In resolving the second issue – whether petitioner has jurisdiction over the administrative
complaint against respondent – it is necessary to examine the source, nature and extent
of the power and authority of the Ombudsman vis-à-vis the provisions of the Magna
Carta for Public School Teachers.

Section 5, Article XI of the Constitution "created the independent Office of the

Ombudsman." Hailed as the "protectors of the people," the Ombudsman and his
Deputies are bestowed with overreaching authority, powers, functions, and duties to act
on complaints against public officials and employees, as provided in Sections 12 and 13
thereof, thus:

Sec. 12. The Ombudsman and his Deputies, as protectors of the people,
shall act promptly oncomplaints filed in any form or manner against public officials or em
ployees of the Government, or anysubdivision, agency or instrumentality thereof, includi
ng government-owned or controlled corporations, and shall, in appropriate cases, notify
the complainants of the action taken and the result thereof.

Sec. 13. The Office of the Ombudsman shall have the following powers, functions,
and duties:
(1) Investigate on its own, or on complaint by any person, any act or omission of any pub
lic official, employee, office or agency, when such act or omission appears to be illegal, u
njust, improper, orinefficient;

(2) Direct, upon complaint or at its own instance, any public official or employee of the
Government, or any subdivision, agency or instrumentality thereof, as well as of any
government-owned or controlled corporation with original charter, to perform and
expedite any act or duty required by law, or to stop, prevent, and correct any abuse or
impropriety in the performance of duties;

(3) Direct the officer concerned to take appropriate action against a public official or
employee at fault, and recommend his removal, suspension, demotion, fine, censure, or
prosecution, and ensure compliance therewith;

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations
as may be provided by law, to furnish it with copies of documents relating to contracts or
transactions entered into by his office involving the disbursement or use of public funds
or properties, and report any irregularity to the Commission on Audit for appropriate
action;

(5) Request any government agency for assistance and information necessary in the
discharge of its responsibilities, and to examine, if necessary, pertinent records and
documents;

(6) Publicize matters covered by its investigation when circumstances so warrant and
with due prudence;

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and
corruption in the Government and make recommendations for their elimination and the
observance of high standards of ethics and efficiency; and

(8) Promulgate its rules of procedure

and exercise such other powers or perform such functions orduties as may be provided
by law. (Underscoring supplied)

The above enumeration of the Ombudsman’s far-reaching powers is not exclusive as the
framers of the Constitution gave Congress the leeway to prescribe, by subsequent
legislation, additional powers, functions or duties to the Ombudsman, as mandated in
Section 13(8), quoted above.

Pursuant to the constitutional command, Congress enacted R.A. No. 6770 (The
Ombudsman Act of 1989) providing for the functional, structural organization, and the
extent of the administrative disciplinary authority of the petitioner.28 The provisions of this
law "apply to all kinds of malfeasance, misfeasance, and nonfeasance" committed by
any officer or employee of the Government, or of any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations, "during
his tenure in office."29 The acts or omissions which the petitioner may investigate are
quite extensive:

SEC. 19. Administrative Complaints.– The Ombudsman shall act

on all complaints relating, but notlimited, to acts or omissions which:

(1) Are contrary to law or regulation;

(2) Are unreasonable, unfair, oppressive or discriminatory;

(3) Are inconsistent with the general course of an agency’s functions, though in
accordance with law;

(4) Proceed from a mistake of law or an arbitrary ascertainment of facts;

(5) Are in the exercise of discretionary powers but for an improper purpose; or

(6) Are otherwise irregular, immoral or devoid of justification.

Its mandate is not only to "act promptly on complaints" against such public officers or
employees, but also to "enforce their administrative, civil and
criminal liability in every case where the evidence warrants in order topromote efficient s
ervice by the Government to the people."30

R.A. No. 6770, however, restrains the petitioner from exercising its disciplinary authority
"over
officials who may beremoved only by impeachment or over Members of Congress and th
e Judiciary," thus:

SEC. 21. Officials Subject to Disciplinary Authority; Exceptions.– The Office of the
Ombudsman shall
have disciplinary authority over all elective and appointive officials of the Government an
d its subdivisions, instrumentalities and agencies, including Members of the Cabinet,
local government, government-owned or controlled corporations and their
subsidiaries, except over officials who maybe removed only by impeachment or ov
er Members of Congress and the Judiciary.

SEC. 22. Investigatory Power.– The Office of the Ombudsman shall have the power to
investigate any serious misconduct in office allegedly committed by officials removable
by
impeachment, for thepurpose of filing a verified complaint for impeachment, if warranted.

In all cases of conspiracy between an officer or employee of the government and a

private person, the Ombudsman and his Deputies shall have jurisdiction to include such
private person in the investigation and proceed against such private person as the
evidence may warrant. The officer or employee and the private person shall be tried
jointly and shall be subject to the same penalties and liabilities. (Underscoring supplied)

The above constitutional and statutory provisions taken together reveal the manifest
intent of the lawmakers to bestow upon the
petitioner full administrative disciplinary power over public officials and
employees except those impeachable officials, Members of Congress and of the
Judiciary.

When an administrative charge is initiated against a public school teacher, however,

Section 9 of the Magna Carta for Public School Teachers specifically provides that the
same shall be heard initially by an investigating committeecomposed of the school
superintendent of the division, as chairman, a representative of the local or, in its
absence, any existing provincial or national teachers’ organization, and a supervisor of
the division, as members, thus:

SEC. 9. Administrative Charges. – Administrative charges against a teacher shall

be heard initially by a committee composed of the
corresponding Schools Superintendent of the Division or a duly authorized
representative who should at least have the rank of a division supervisor, where the
teacher belongs, as chairman, a representative of the local or, in its absence, any
existing provincial or national teachers’ organization and a supervisor of the Division, the
last two to be designated by the Director of Public
Schools. The committee shall submit its findings and
recommendations to the Director of PublicSchools within thirty days from
termination of the hearings; Provided, however, That where the school superintendent is
the complainant or an interested party, all the members of the committee shall be
appointed by the Secretary of Education. (Underscoring supplied)

In Fabella v. Court of Appeals,31 the Court held:

The legislature enacted a special law, RA 4670 known as the Magna Carta for Public
School Teachers,
which specifically covers administrative proceedings involving public schoolteachers.
Section 9 of said law expressly provides that the committee to hear public
schoolteachers’ administrative cases should be composed of the school superintendent
of the division as chairman, a representative of the local or any existing provincial or
national teachers’ organization, and a supervisor of the division. x x x.

xxxx

The
aforementioned Section 9 of RA 4670, therefore, reflects the legislative intent to impose
astandard and a separate set of procedural requirements in connection with admi
nistrativeproceedings involving public schoolteachers. x x x. (Emphasis and
underscoring supplied)

Significantly, The Ombudsman Act of 1989 recognizes the existence of some "proper
disciplinary authorit[ies]," such as the investigating committee of the DepEd mentioned in
Section 9 of the Magna Carta for Public School Teachers. Thus, Section 23 of The
Ombudsman Act of 1989 directs that the petitioner "may refer certain complaints to
the proper disciplinary authority for the institution of appropriate administrative proceedin
gs against erring public officers or employees."32

In light of this, the Court holds that the administrative disciplinary authority of the
Ombudsman over a public school teacher is not an exclusive power but
is concurrent with the proper committee of the DepEd.

In the instant case, respondent, although designated as then OIC of a public school and
concurrently the school principal of another public school, is undoubtedly covered by the
definition of the term "teacher" under the second paragraph of Section 2 of the Magna
Carta for Public School Teachers which provides:

SEC 2. Title – Definition.– This Act shall x x x apply to all public school teachers except
those in the professorial staff of state colleges and universities.

As used in this Act, the term ‘teacher’ shall mean all persons engaged in the classroom,
in any level of instruction; on full time basis, including guidance counselors, school
librarians, industrial arts or vocational
instructors, and all other persons performing supervisory and/or administrative functions
inall schools, colleges and
universities operated by the Government or its political subdivisions; but shall not include
school nurses, school physicians, school dentists, and other school employees.
(Underscoring supplied)

Thus, the administrative complaint against respondent should have been referred by
petitioner to the proper committee of the DepEd for the institution of appropriate
administrative proceedings, in light of Section 23 of The Ombudsman Act of 1989.

This brings the Court to the third issue. While petitioner should have desisted from
hearing the administrative complaint against respondent and referred it to the proper
DepEd committee, given that it had already concluded the proceedings and had
rendered a decision thereon, respondent is now barred from assailing petitioner’s acts
under the principle of estoppel. He had actively participated in the administrative
proceedings before petitioner. In his Counter-Affidavit, he asked petitioner for affirmative
relief by seeking the dismissal of the administrative complaint allegedly for being
baseless.33 From then on, he was assisted by counsel in filing several motions. When he
was preventively suspended for six months without pay, he filed a Motion for
Reconsideration praying that "a new Order be issued reversing or setting aside the
preventive suspension Order."34 When this was denied, he again filed a Supplemental
Motion for Reconsideration35 for the lifting of his suspension since he was already
replaced as OIC, which motion was granted. It was only after petitioner had rendered
an adverse Decision that he, in a Motion for Reconsideration, impugned petitioner’s
assumption of jurisdiction over his case. Verily, respondent cannot be permitted to
challenge petitioner’s acts belatedly.

In applying the principle of estoppel in Alcala v. Villar,36 the Court held:

Respondent Jovencio D. Villar is the School Principal of Lanao National High School,
Pilar, Cebu City. In February 1998, x x x, teachers of Lanao National High School, x x x,
filed with the Office of the Ombudsman an administrative complaint against respondent
for dishonesty.

xxxx

On June 22, 1999, the Office of the Ombudsman issued a resolution finding respondent
guilty of dishonesty and dismissing him from the service. x x x.

On appeal, the Court of Appeals nullified and set aside the decision of the Office of the
Ombudsman on the ground that the latter was without jurisdiction over the administrative
complaints against public school teachers. It ruled that the governing law is Republic Act
No. 4670, otherwise known as the Magna Carta for Public School Teachers, and not
Republic Act No. 6770, the Ombudsman Act of 1989. x x x.

xxxx

x x x, in Fabella v. Court of Appeals, it was ruled that R.A. No. 4670, the Magna Carta
for Public School Teachers, specifically covers and governs administrative proceedings
involving public school teachers. x x x.

xxxx

The foregoing notwithstanding, the Court of Appeals erred when it

nullified the proceedings before theOffice of the Ombudsman. x x x. In Emin v. De Leon,
a public school teacher was administratively charged with and found guilty of dishonesty
under P.D. No. 807 (Civil Service Law). The Supreme Court ruled that R.A. No. 4670,
the Magna Carta for Public School Teachers, is the applicable law and that the Civil
Service Commission does not have jurisdiction over the administrative case.
Nevertheless, the Court affirmed the dismissal from the service of the public school
teacher as the latter was found to have been sufficiently afforded due process. x x x.
Thus –

However, at this late hour, the proceedings

conducted by the public respondent CSC canno longer be
nullified on procedural grounds. Under the principle of estoppel by laches, petitioner is
now barred from impugning the CSC’s jurisdiction over his case.

xxxx

As held previously, participation by parties in the administrative proceedings withoutraisi

ng any objection thereto bars them from raising any jurisdictional
infirmity afteran adverse decision is rendered against them. x x x. Notably, in his
Counter-Affidavit, petitioner himself invoked the jurisdiction of the Civil Service
Commission by x x x further praying for ‘any remedy or judgment which under the
premises are just and equitable.’ It isan undesirable practice of a party
participating in the proceedings, submitting his case for
decision and accepting the judgment only if favorable, but attacking it for lack ofjurisdicti
on when adverse.

xxxx

In the same vein, respondent in the case should be barred under the principle of esto
ppel bylaches from assailing the jurisdiction of the Ombudsman. Therefore, the
Court of Appeals should have resolved the appeal on its merits, x x x. (Emphasis and
underscoring supplied)

The ruling by the Court of Appeals that estoppel will not apply against respondent
because he raised the issue of jurisdiction "when the case
was still before the Ombudsman"37 is thus bereft of merit.

The appellate court’s citation of Duero v. Court of Appeals38 in which this Court held that
the therein private respondent Duero was not estopped from questioning the RTC
jurisdiction, despite his active participation in the proceedings before it, is misplaced. For
Duero involved lack of jurisdiction. The present case involves concurrentjurisdiction.

WHEREFORE, the petition is GRANTED. The assailed Court of Appeals Decision of

June 29, 2006 and Resolution of April 2, 2007 in CA-G.R. SP No. 93165
are REVERSED and SET ASIDE. The case is REMANDED to the Court of Appeals
which is directed to decide the case on the merits.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

DANTE O. TINGA PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s
Attestation, I certify that the conclusions in the above decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court’s
Division.

REYNATO S. PUNO
Chief Justice

Footnotes

1
Penned by Associate Justice Magdangal M. De Leon and concurred in by
Associate Justices Godardo A. Jacinto and Rosalinda Asuncion-Vicente;
CA rollo, pp. 238-246.
2
Entitled "Victorino N. Medrano v. Ma. Ruby A. Dumalaog and Hon. Dep.
Ombudsman for Luzon Victor C. Fernandez."

3
CA rollo, pp. 25-30.

4
Id. at 42- 49.

5
Id. at 37-38.

6
Id. at 40-41.

7
Id. at 77-80.

8
Id. at 107-109.

9
Id. at 117-119.

10
Id. at 120-128.

11
Id. at 129-138.

12
Id. at 139-152.

13
In this Joint Order, Atty. Adoracion A. Agbada, Graft Investigation & Protection
Officer II, Office of the Ombudsman, proposed the denial of respondent’s
separate motions for reconsideration of the July 19, 2004 Decision, but the
proposal was modified by Deputy Ombudsman for Luzon Victor C. Fernandez as
indicated in his marginal note therein, stating: "With modification. Pls. see
Memorandum of Dir. Gonzales dated May 27, 2005." (Id. at 192-197) The
Memorandum referred to contains the following recommendation:

"WHEREFORE, PREMISES CONSIDERED, it most respectfully

recommended that the proposed Joint Order dated 08 April 2005 insofar
as the recommendation in the criminal aspect is concerned be
APPROVED. On the other hand, the recommendation with respect to the
administrative case be DISAPPROVED. Respondent Victorio N. Medrano
is hereby found guilty of SEXUAL HARASSMENT under Republic Act No.
7877 and hereby meted the penalty of ONE (1) YEAR SUSPENSION
FROM OFFICE WITHOUT PAY." (Id. at 198-200).

14
Id. at 2-24.

15
Id. at 10-11.

16
Id. at 38, 41.

17
Id. at 244.

18
Id. at 275-276.

19
Petition, rollo, p. 13.

20
Id. at 72-73.

21
Appended to the Manifestation With Motion In Lieu Of Comment, id. at 74.

22
Id. at 75.

23
The acts complained of in the criminal case arose from the same incident
subject of the instant administrative case.
24
G.R. No. 180700, March 4, 2008. Vide Paredes v. Court of Appeals, G.R. No.
169534, July 30, 2007, 528 SCRA 577, 587-592; Barillo v. Gervacio, G.R. No.
155088, August 31, 2006, 500 SCRA 561, 571-574; Ocampo v. Office of the
Ombudsman, 379 Phil. 21 (2000); Paredes, Jr. v. Sandiganbayan, 322 Phil. 709,
730-731 (1996); Tan v. Commission on Elections, 237 Phil. 353, 359 (1994).

25
Victoriano v. People, G.R. Nos. 171322-24, November 30, 2006, 509 SCRA
483, 491-492.

26
Id., citing People v. Ramirez, Jr., G.R. Nos. 150079-80, June 10, 2004, 431
SCRA 666, 676.

27
Id. at 677.

28
Office of the Ombudsman v. Court of Appeals, G.R. No. 160675, June 16,
2006, 491 SCRA 92, 110, citing Acop v. Office of the Ombudsman, 248 SCRA
566 (1995).

29
Section 16 of R.A. No. 6770 provides:

"SEC. 16. Applicability.– The provisions shall apply to all kinds of

malfeasance, misfeasance, and nonfeasance that have been committed
by any officer or employee as mentioned in Section 13 hereof, during his
tenure in office."

30
Section 13 of R.A. No. 6770 provides:

"SEC. 13. Mandate.– The Ombudsman and his Deputies, as protectors of

the people, shall actpromptly on complaints filed in any form or manner
against officers or employees of the Government, or of any subdivision,
agency or instrumentality thereof, including government-owned or
controlled
corporations, and enforce their administrative, civil and criminal liability in
every case where theevidence warrants in order to promote efficient servi
ce by the Government to the people." (Underscoring supplied)

31
346 Phil. 940, 953, 955-956 (1997), reiterated later in Emin v. Chairman De
Leon, 428 Phil. 172, 184 (2002) and in Alcala v. Villar, 461 Phil. 617 (2003).

32
Section 23 of the law provides:

"SEC. 23. Formal Investigation.– (1) Administrative investigations

conducted by the Office of the Ombudsman shall be in accordance with
its rules of procedure and consistent with due process.

"(2) At its option, the Office of the

Ombudsman may refer certain complaints to the proper disciplinaryauthor
ity for the institution of appropriate administrative proceedings against
erring public officers or employees, x x x.

x x x x." (Underscoring supplied)

33
CA rollo, p. 49.

34
Id. at 77, 79.

35
Id. at 107-110.

36
Supra note 31 at 620-626.
37
Assailed CA Decision of June 29, 2006, rollo, p. 41.

38
424 Phil. 12 (2002).