Friday, September 27, 2019

Modification of penalty imposed by the lower court favors accused who did not appeal.

419 Phil. 50

SECOND DIVISION

G.R. No. 130962, October 05, 2001

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JOSE REAPOR Y SAN JUAN, NORBERTO NANALE Y ESPLANA, JOHN DOE, PETER DOE, RICHARD DOE, RICKY DOE, ALVIN DOE, RONALD DOE, STEVEN DOE AND ARNOLD DOE, ACCUSED. JOSE REAPOR Y SAN JUAN, ACCUSED-APPELLANT.

D E C I S I O N

QUISUMBING, J.:

On appeal is the decision[1] dated June 2, 1997, of the Regional Trial Court of Naga City, Branch 28, finding appellant Jose Reapor y San Juan guilty of murder, sentencing him to reclusion perpetua, and ordering him together with accused Norberto Nanale y Esplana to pay the surviving heirs of Larry Nivales the amount of P5,320 as actual damages, P50,000 as civil indemnity and P50,000 as moral damages.


The Information against them reads as follows:
The undersigned Assistant City Prosecutor of Naga City accuses JOSE REAPOR Y SAN JUAN, NORBERTO NANALE Y ESPLANA, JOHN DOE, PETER DOE, RICHARD DOE, RICKY DOE, ALVIN DOE, RONALD DOE, STEVEN DOE, and ARNOLD DOE of the crime of MURDER, committed as follows:

That on or about October 1, 1996, in the city of Naga, Philippines and within the jurisdiction of this Honorable Court, the above named accused conspiring, confederating and mutually helping one another, with treachery, with the aid of armed men and employing means to weaken the defense, did then and there willfully, unlawfully, and feloniously and with intent of taking the life of Larry Nivales, attack the latter in the following manner, that is while some of the armed men were holding the arms of the victim, JOSE REAPOR Y SAN JUAN stabbed him several times with a knife, causing to suffer the following wounds, to wit:

1. Stab wound located on the right chest wall, above the right nipple penetrating the upper lobe of the right lung.

2. Superficial incised wound located on the left chest above the left nipple.

3. Stab wound located on the left side of the chest above left nipple penetrating the upper lobe of the left lung.

4. Stab wound located on the left chest below nipple penetrating the lower lobe of the left lung.

5. Stab wound located on the anterior aspect of right leg.

6. Stab wound on the lateral aspect of the left leg.

as evidence by hereto attached Autopsy Report conducted from the victim, Larry Nivales, said wounds being necessarily mortal, thereby causing his death.

CONTRARY TO LAW

Naga City, October 3, 1996.[2]
On February 17, 1997, Reapor and Nanale were arraigned and they pleaded not guilty.[3] Thereafter, trial on the merits ensued.

For the prosecution, Elsie Carulla and Napoleon Penolio testified as eyewitnesses to the killing of the victim, Larry Nivales.

Elsie Carulla testified that after watching a dance at the Mac Mariano Elementary School, she saw Larry Nivales on the night he was killed.  According to her, she saw Jose Reapor stab Nivales once on the chest, while the victim was being held by three persons.  After being wounded by Reapor, Nivales was then stabbed by Norberto Nanale, also on the chest.[4]

Napoleon Penolio testified that at around 1:20 A.M., on October 1, 1996, he was on his way to the house of Moises Nivales to borrow some tools when he saw the latter's son, Larry, being held by three persons at the intersection in front of the Mac Mariano Elementary School.  While he was being held, Jose Reapor approached Larry and stabbed him once on the chest.  After Reapor was done, Norberto Nanale came and stabbed Larry also on the chest.[5]

Dr. Joel Jurado testified that he was the one who conducted an autopsy upon the body of Larry Nivales.  He reported that the victim suffered six stab wounds, four of which were inflicted on the chest area while two were on the legs of the victim.  Dr. Jurado declared that of these stab wounds, three were fatal[6] while the rest were merely superficial.[7] The cause of death was due to loss of blood because of multiple stab wounds.[8]

Nancy Dumalasa Nivales, the mother of the victim, testified on the expenses and damages she and her family incurred as a result of her son's death.[9]

SPO4 Leonardo Rañola stated that he was the Station Commander of Sub-station No. 2 at Peñafrancia Avenue, Naga City.  On October 1, 1996, Nancy Nivales, mother of the victim, went to their office with two persons whom he remembered to be Tomines and Amaro. They reported that Mrs. Nivales' son was stabbed and the assailants, whom they identified to be appellants Jose Reapor and Norberto Nanale, were still at large.  SPO4 Rañola accompanied Mrs. Nivales and her companion to the houses of Jose Reapor and Norberto Nanale.  The latter were brought to the police headquarters for investigation.[10]

The defense presented Raul Rosales, an elected barangay kagawad of Barangay Balatas, Naga City.  He testified that there was no dance held inside the compound of Mac Mariano Elementary School during the evening of September 30, 1996.  The only dance that night was held along Molave St., which is 100 meters from the said school.[11]

Norberto Nanale denied stabbing Larry Nivales or knowing Jose Reapor prior to October 1, 1996.  He alleged that he was at home from 9:00 P.M. of September 30, 1996 until 6:00 A.M. the following morning.[12]

Jesus Almiro, who testified for the defense, said that there was no dance inside the Mac Mariano Elementary School in the evening of September 30, 1996. Later, however, he declared that he was not absolutely certain that there was no dance inside the school after 7:30 P.M..  He said he was already home by this time and could not see what was going on inside the school compound.[13]

Jose Reapor testified that he was at his brother's residence during the night of the killing.  He denied the accusation against him.[14]

Eduviges Evangelista Reapor testified that she is the sister-in-law of appellant and that the latter was with them in their house at Zone 6, Balatas, Naga City in the evening of September 30, 1996 until the following morning.[15]

On June 2, 1997, the trial court rendered judgment finding the accused guilty of the crime of murder.  The dispositive portion of said decision reads:
WHEREFORE, in view of all the foregoing findings that the guilt of accused Jose Reapor y San Juan and Norberto Nanale y Esplana of the crime of murder of which they are presently charged has been proven beyond reasonable doubt, judgment is hereby rendered whereby accused Jose Reapor y San Juan, in the absence of any mitigating or aggravating circumstance, is hereby sentenced to suffer the penalty of reclusion perpetua. Accused Norberto Nanale who was fifteen (15) years old when the crime of which he is presently charged was committed, and therefore entitled to the privilege mitigating circumstance of minority and applying the Indeterminate Sentence Law, is hereby sentence to suffer the penalty of imprisonment of SIX (6) Years and ONE (1) Day to TWELVE (12) years of prision mayor; ordering both accused to pay the surviving heirs of the deceased, Larry Nivales the amount of FIVE THOUSAND THREE HUNDRED TWENTY (P5,320.00) PESOS representing actual damages for expenses incurred in connection with the death of Larry Nivales; FIFTY THOUSAND (P50,000.00) PESOS for the death of Larry Nivales; and FIFTY THOUSAND (P50,000.00) PESOS for moral damages. With costs de oficio.

SO ORDERED.
Jose Reapor appealed.  The verdict against Norberto Nanale became final and executory, since he did not appeal.

Before us, appellant Jose Reapor raises the lone assignment of error that:
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT AND EVENTUALLY ORDERING HIM TO PAY THE SURVIVING HEIRS OF THE VICTIM ACTUAL AND MORAL DAMAGES
Appellant seeks to discredit the credibility of the two eyewitnesses who testified for the prosecution.  He points out certain "improbabilities" and "inconsistencies" in their testimonies which, according to the appellant, point to the conclusion that these witnesses had been rehearsed or paid.

According to him, Elsie Carulla's testimony that she saw the stabbing incident after she watched a dance held "inside" the Mac Mariano Elementary School is false.  He insists that there was no such dance.  Raul Rosales and Jesus Almiro attested that no such event took place inside the school. Appellant likewise questions Elsie Carulla's identification of him as one of the offenders.  He points out that she could not categorically identify who the offender was since she admitted that she reported for work at 8:00 A.M. and went home at 8:00 in the evening.  According to appellant, he lived at Zone 6, Barangay Balatas, Naga City, about two (2) kilometers from the place of the incident.  Appellant says that in making identifications of the accused, Elsie Carulla was aided by somebody.[16] He adds that upon witnessing a person being attacked, the natural reaction of a woman is fright, and fear would prevent her from correctly identifying the attackers.

Appellant also contends that the testimony of Napoleon Penolio was contrary to human experience and unworthy of belief.  The natural and spontaneous reaction of one who witnessed the stabbing, according to appellant, would be to immediately go to the house of the victim, whom Penolio considered a friend, to report the incident.  But Penolio waited until the afternoon of October 1, 1996. This delay, says the appellant, strongly suggests that Penolio did not really see the crime as it unfolded. Appellant adds that Penolio could not have identified him as one of those who attacked Larry Nivales since a frightened witness could not possibly have identified anyone.  Appellant suggests that Penolio was prompted by the victim's relative[17] to point to him as the assailant.

For the State, the Office of the Solicitor General (OSG) urges that the testimonies of the prosecution witnesses should be upheld and afforded full faith and credence and the judgment of the trial court affirmed.  However, the OSG recommends that the maximum of Norberto Nanale's indeterminate sentence be corrected from "twelve years (12) of prision mayor" to "fourteen (14) years, eight (8) months and one (1) day of reclusion temporal". It also recommends that the award of P50,000 as civil indemnity by the trial court be increased[18] to P75,000 pursuant to this Court's ruling in People vs. Victor, 292 SCRA 186 (1998).

After carefully considering the records and the submissions of the parties, we find Jose Reapor's appeal unmeritorious.  Appellant asserts that Carulla's testimony should not be believed, because while a dance was indeed held in the vicinity of the crime scene, it was held along Molave Street in Mac Mariano Village Subdivision and not inside the compound of the Mac Mariano Elementary School as claimed by eyewitness Carulla.  However, while defense witness Jesus Almiro was not absolutely sure whether there was a dance party inside the Mac Mariano Elementary School after 7:30 P.M. of September 30, 1996,[19] another defense witness Raul Rosales' testified that there was a dance along Molave Street which took place from 10:00 P.M. of September 30, 1996 until 2:00 A.M. in the morning of October 1, 1996.[20]

Whether there was a dance inside or outside the compound of Mac Mariano School is not crucial on this issue.  Everyone is agreed that there was a killing and it happened outside the school premises. The dance was only a time-and-place reference used by Carulla. Carulla's identification of the accused is not belied by the fact of whether the dance was inside or outside the school premises.  Suffice it to state that there was indeed a dance party held in that vicinity at about the time and date of the killing.

Appellant likewise points out that Carulla could not have possibly identified him since she hardly knew him, and that she said she worked from 8:00 A.M. to 8:00 P.M., and she therefore had no opportunity to see him prior to the killing of Larry Nivales.

A close review of the records would show, however, that nothing in the testimony of Carulla negates the possibility of her seeing appellant in other places, such as in the basketball court earlier.  Neither law nor jurisprudence requires, as a condition sine qua non, that for a positive identification to be made by a prosecution witness of a felon, the witness must first know the latter personally.[21]

It has also been observed that people who are confronted with a shocking and unexpected event have different reactions.  It is not always that they are shocked into numbness.  Some in fact have heightened awareness during such events. Thus, as to witness Napoleon Penolio's reaction to the killing, such reaction does not render his testimony incredible.  Not every witness is expected to act with reason and conformably with the expectations of mankind.[22] Different people react in different ways especially when faced with an extraordinary and disturbing event.  In Penolio's case, his delayed reporting of what happened that day could be explained by fear, he was simply frightened.[23]

Absent any showing that the trial court had overlooked some important and vital fact which would lead to a different view of the outcome of the case, we find no reason to disturb the trial court's findings of fact and assessment of the credibility of the witnesses and their testimony.[24] We differ, however, in its appreciation of the aggravating circumstance in this case. The trial court found that there was treachery when Reapor and Nanale attacked the victim while three men held him immobile, thus affording the victim no means of defense.  Treachery, however, cannot be presumed but must be proved by clear and convincing evidence as conclusively as the killing itself.[25] In this case, the prosecution did not prove treachery convincingly.  The fact that the victim was held by unidentified men when he was stabbed by Reapor and Nanale is not enough to establish treachery.  Two conditions must concur to establish treachery: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or retaliate, and (2) the means of execution was deliberately or consciously adopted.[26] In our view the second requirement has not been shown.  The prosecution merely established that the victim was stabbed while he was being held by three persons.  It did not present any evidence to show how the aggression commenced.  Absent any particulars as to the manner in which the aggression commenced or how the act which culminated in the death of the victim began and developed, treachery cannot be appreciated to qualify the killing to murder.[27] In People vs. Agapinay, 186 SCRA 812 (1990), we held that the victim held by two persons while he was stabbed by a third does not demonstrate treachery.  In People vs. Daen, Jr., 244 SCRA 382 (1995), the victim was surrounded by appellant and five others, one of whom had pinned down the victim's hands.  In those cases, the prosecution failed to show that the manner of execution was deliberately chosen and designed. Treachery was ruled out.

In both Agapinay and the Daen, we held that there was abuse of superior strength qualifying the killing to murder.  But in said cases, abuse of superior strength was alleged in the Information.  Here no such allegation was made.  Under Secs. 8 and 9 of Rule 110 of the Revised Rules of Criminal Procedure, as amended, qualifying as well as mitigating circumstances must be alleged expressly:
SEC. 8.  Designation of the offense.- The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances.  If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

SEC. 9. Cause of accusation.-The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.
Conformably to this new amendment, there being no allegation of treachery nor abuse of superior strength, in the Information, they could not be taken into account.  The crime committed in the present case is only homicide, not murder.

Further, we are unable to agree with the trial court's finding that Nanale and Reapor conspired to kill Nivales.  Said the trial court:
... the evidence adduced by the prosecution show only conspiracy between the two accused by their concert of action and community of interest, but not with respect to the others... (judgment, 3rd par., p. 9).

The prosecution evidence, however, showed that appellant Reapor stabbed Nivales and after such stabbing, Reapor left.  It was after he left that Nanale came and also stabbed the victim.[28] The attacks were not simultaneous.  Nor was there any showing that these attacks were done for a common purpose.  The conclusion that the two conspired was based on nothing more than conjectures.  But the rule is well established that conspiracy must be shown as clearly and as convincingly as the commission of the crime itself.[29] Here, we find no positive and conclusive evidence shown as proof of conspiracy.[30]

The acts of the two felons before and after the crime were committed by each of them separately and singly.  One stabbed Nivales after the other had done so.  Appellant Reapor had left without waiting for accused Nanale.  The sequence of events shows that appellant acted alone.  That Nanale did not talk to appellant nor prevent him from leaving also indicate that he acted on his own.  There being no conspiracy, each felon should be held liable only for his individual acts.

The prosecution witnesses testified that Reapor stabbed the victim only once, and then left.  He was followed by accused Nanale who also stabbed the victim once.  Each assailant contributed separately to the fatal wounding of the victim.  Appellant stabbed the victim on the chest, a vulnerable part of the body.  It is not without reason that the trial court held appellant liable for the death of Larry Nivales.  Appellant and co-accused Nanale are without doubt guilty of homicide.

As to accused Nanale, the OSG recommends that the penalty imposed on him be modified.  Although Nanale did not appeal the decision, thereby accepting the verdict of guilt, Sec. 11 (a) of Rule 122 of the Rules of Court states:

Sec. 11. Effect of appeal by any of several accused. -


(a) An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter.
Accordingly, the penalty imposed by the trial court on Nanale could be modified, so that like appellant, Nanale should be declared guilty not of murder but only homicide.  For as we now find, the offense committed by Nanale as well as appellant was not attended by the qualifying circumstance of treachery.

Finally, the OSG recommends that the civil indemnity be increased to P75,000.  However, the indemnity of P75,000 only applies in a qualified rape case,  as in People vs. Victor,[31] cited by the OSG. For the violent and shocking death of the victim here, we find that the award of P50,000 as civil indemnity is justified.  This together with the actual damages of P5,320 and moral damages in the amount of P50,000 should be maintained.

WHEREFORE, the judgment of the Regional Trial Court of Naga City, Branch 28, is hereby MODIFIED. Appellant Jose Reapor y San Juan, as well as his co-accused Norberto Nanale, is declared guilty only of homicide, which is punishable with the penalty of reclusion temporal.  Applying the Indeterminate Sentence Law, and considering that there is no aggravating nor mitigating circumstance in the commission of the offense by appellant, the penalty that is hereby imposed on appellant is six (6) years and one (1) day of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum. As for co-accused Norberto Nanale, considering the mitigating circumstance that he was a minor at the time he committed the crime of homicide, and applying the Indeterminate Sentence Law, his sentence is reduced to six (6) months and one (1) day of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum.  The award of P50,000 as civil indemnity, P5,320 as actual damages, and P50,000 as moral damages in favor of the victim's heirs is AFFIRMED.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.



[1] Rollo, pp. 22-32.

[2] Rollo, p. 5.

[3] Records, pp. 42-44.

[4] TSN, April 4, 1997, pp. 5-6.

[5] TSN, April 22, 1997, pp. 13-16.

[6] Stab wound located on the right chest wall, above the right nipple; stab wound located on the left side of the chest above the left nipple; stab wound located on the left chest below the left nipple.

[7] Superficial incised wound located on the left chest above the left nipple; stab wound measuring 2x1x2cm located on the lateral aspect of right leg; stab wound 2x1x2cm located on the lateral aspect of the left leg.

[8] TSN, April 3, 1997, pp. 2-7.

[9] Id. at 10, 16-19.

[10] TSN, April 4, 1997, pp. 24 and 27.

[11] TSN, April 28, 1997, pp. 5-6.

[12] Id. at 13-14.

[13] TSN, May 15, 1997, pp. 3-9.

[14] Id. at 11-14.

[15] TSN, May 16, 1997, pp. 29-32.

[16] Rollo p. 63.

[17] Id. at 65-66.

[18] Id. at 103.

[19] TSN, May 15, 1997, p.8.

[20] TSN, April 28, 1997, p. 5.

[21] People vs. Bracamonte, 257 SCRA 380, 381 (1996).

[22] People vs. Erardo, 277 SCRA 643, 654 (1997).

[23] TSN, April 22, 1997, p. 26.

[24] People vs. Landicho, 258 SCRA 1, 32 (1996).

[25] People vs. De Leon, 262 SCRA 445, 450 (1996).

[26] People vs. Valles, 267 SCRA 103, 113 (1997).

[27] People vs. Cruz, 262 SCRA 237, 243 (1996).  See also, People vs. Nalangan, 270 SCRA 234, 240 (1997); People vs. Naguita, 313 SCRA 292, 308 (1999).

[28] TSN, April 4, 1997, p. 6; April 22, 1997, p. 16.

[29] Pecho vs. People, 262 SCRA 518, 530 (1996).

[30] People vs. Berroya, 283 SCRA 111, 129 (1997).

[31] 292 SCRA 186 (1998).

Office logbook not the best evidence to prove absences, it's a mere locator; Daily Time Record (CSC Form 48) duly certified by the employee, verified by supervisor and authenticated by the head of the office is the best evidence to prove attendance.

417 Phil. 588

EN BANC

G.R. No. 142444, September 13, 2001

OFELIA D. ARTUZ, PETITIONER, VS. COURT OF APPEALS, CIVIL SERVICE COMMISSION AND RENE A. BORNALES, RESPONDENTS.

R E S O L U T I O N

BELLOSILLO, J.:

This resolves the 11 August 2000 Motion for Reconsideration of the 4 July 2000 Resolution of the Court finding no grave abuse of discretion on the part of public respondent Court of Appeals and dismissing the petition of Ofelia D. Artuz.

On 11 December 1991 private respondent Rene A. Bornales, Legal Aide, Regional Health Office No. VI (RHO VI), filed before the Office of Legal Affairs, Department of Health (DOH), a Letter-Complaint against petitioner Ofelia D. Artuz, then Legal Officer IV, RHO VI, DOH, for Estafa or Swindling through Falsification of Public Documents and/or Falsification of Public Documents.[1]

Before RHO VI of DOH could act on the Letter-Complaint, and in view perhaps of the delay, private respondent Bornales went to the Merit System Protection Board (MSPB) of the Civil Service Commission (CSC). On 10 November 1992 MSPB took cognizance of the Letter-Complaint and directed Regional Office No. VI. (RO VI) of CSC to conduct the necessary investigation, and to submit its report and recommendation. Thereafter, on 28 May 1993 the MSPB formally charged petitioner with Dishonesty and Falsification of Public Documents and directed her to file her answer within five (5) days from receipt thereof. Petitioner as respondent therein was advised accordingly of her right to formal investigation and to assistance of counsel.

In her answer dated 20 July 1993 petitioner Artuz vehemently denied the charges against her, contending that they were "malicious, fabricated and pure harassment." She maintained that the charges had no factual and legal basis as she had regularly reported to office and performed her duties as Legal Officer IV during the period in question, as shown by her Daily Time Records (DTRs) for July and August 1991, which were duly verified by the Personnel Section and finally approved by the Director of RHO VI.  Moreover, she asserted that her Punch Cards for those months would tally with her DTRs and further confirm the regularity of her office attendance. According to her, their office was implementing the Bundy clock system, and there was no office memorandum or circular requiring the use of the Logbook.

Petitioner attributed the filing of the Letter-Complaint against her by private respondent Bornales to vengeance as she had, as Legal Officer IV of RHO VI, previously filed a case against him for Gross Dishonesty, Grave Misconduct, Insubordination and Conduct Prejudicial to the Best Interest of the Service. Furthermore, she claimed that private respondent Bornales had no personal interest in the subject matter of the grievance; that the filing of the Letter-Complaint was premature and arbitrary for lack of prior notice, opportunity to be heard, and no investigation was conducted before the MSPB of the CSC assumed jurisdiction. Finally, petitioner invoked "forum shopping" in view of the pendency of the case before the Office of Legal Affairs of DOH.[2]


On 24 August 1993 the CSC issued Resolution No. 93-3285 directing CSC RO VI or its duly authorized representative to conduct a formal investigation and submit a report and recommendation on the matter, ratiocinating that "no fair and just decision can be made without the conduct of a formal investigation."[3] Thereafter, CSC RO VI reported -
Summing up the evidence from both sides, the prosecution proves by substantial evidence the fact that Artuz committed dishonesty and falsification when she claimed, by falsifying the entries in her daily time records, to have incurred no absences for July and August 1991 x x x Needless to say, the logbook is the best evidence to prove the attendance of any employee x x x x[4]
Meanwhile, on 9 December 1996 petitioner Ofelia D. Artuz was appointed Assistant City Prosecutor of the City of Iloilo.

On 15 July 1998 petitioner received copy of CSC Resolution No. 981650 dated 26 June 1998 finding her guilty of dishonesty and falsification of public documents and imposed upon her the penalty of dismissal from the service including all its accessory penalties.[5] According to the CSC -
x x x substantial evidence establishes the fact that respondent falsified entries in her DTRs for the months of July and August 1991 to enable her to claim her salaries in full. It is, therefore, clear that she benefited from said deliberate acts of falsification. "In falsification or forgery, the person or persons who are or were in possession of, or made use of, or benefited from the forged or falsified documents are legally presumed to be forgers."[6]
Petitioner's Motion for Reconsideration dated 30 July 1998 was denied for lack of merit in CSC Resolution No. 982942 dated 12 November 1998.[7]

On 29 December 1998 petitioner went to the Court of Appeals which on 29 September 1999 affirmed the Resolution of the CSC and dismissed her petition. The appellate court relied so much on the Logbook, calling it "the best evidence to prove the attendance of any employee" as against the DTRs and used the rationale of the CSC that it is in the Logbook that "the employee personally signs his/her name every time he/she reports for work or goes out after office hours. The Logbook is personally prepared by the employee himself or herself. This much credibility cannot be said of the daily time record since it is not too uncommon for us to hear employees asking their co-employees to punch for them their punch card at the Bundy clock."[8]

The appellate court also enumerated the accessory penalties to dismissal from the service which were meted petitioner Artuz: (a) cancellation of eligibility; (b) forfeiture of leave credits and retirement benefits; and, (c) disqualification from re-employment in government service.[9] Petitioner Artuz' Motion for Reconsideration dated 25 October 1999[10] and her Addendum to Motion for Reconsideration dated 15 November 1999[11]were denied in a Resolution of the Court of Appeals dated 28 February 2000.

On 19 April 2000 petitioner Artuz filed a petition for review on certiorari before this Court. On 4 July 2000 we dismissed the petition after finding no grave abuse of discretion on the part of the Court of Appeals. Hence, this Motion for Reconsideration.

We find petitioner's Motion for Reconsideration highly meritorious. Reduction of the penalty imposed on her is not enough; the petition must be granted and the case against her dismissed.

First.  Artuz filed a petition for review on certiorari under Rule 45 and not a petition for certiorari under Rule 65 of the Rules of Court. Curiously, we dismissed the petition on the ground of no grave abuse of discretion on the part of the Court of Appeals. Clearly, without going into the merits of the case, the basis for the dismissal was not proper.

Second.  The reliability and trustworthiness of the Logbook were the principal and only bases for finding petitioner guilty of falsification of public documents. Thus, it is important to determine the probative value of the Logbook vis-à-vis the DTRs and the Punch Cards.

As may be gleaned from the Resolution of the CSC and the Decision of the Court of Appeals, "the logbook is the best evidence to prove attendance of any employee." We do not agree.

One.  The CSC and the CA proceeded in disposing of this case on a wrong premise. Both assumed that the Logbook alone would be the best evidence of an employee's attendance in his office. This assumption is erroneous and baseless. Ordinarily, the Logbook is used as a mere locator for those employees who now and then are required to render service or sent on official business outside the office premises, or to record events or unusual happenings in the office, unless otherwise specified or required in an office memorandum or circular. Just to illustrate the fallacy of this assumption and the unreliability of the Logbook as piece of evidence: RHO VI sits in Iloilo City. It comprises the Provinces of Aklan, Antique, Capiz, Guimaras, Negros Occidental and the Cities of Iloilo, Bacolod, Roxas, Silay, etc. If an employee of RHO VI is sent on an official business to Bacolod City and takes the regular trip by boat that leaves Iloilo City at 6:00 o'clock in the morning, arriving at the pier of Bacolod City at 8:00 o'clock, he does not have to go to the regional office before departure time to sign the Logbook. Similarly, when he leaves Bacolod City after office hours at 6:00 o'clock in the afternoon and arrives in Iloilo at 8:00 o'clock in the evening, he does not have to pass the office to sign the Logbook, as it would be impractical, unreasonable and absurd! In such case, the office can only rely on his DTR which is not only certified correct by him but also by his chief of office. The lower portion of a DTR or Civil Service Form No. 48 provides -
I certify on my honor that the above is a true and correct report of the hours of work performed, record of which was made daily at the time of arrival at and departure from office.

_______________________

Verified as to the prescribed office hours.

_______________________
                                                                                                                                                                                                                                                                                                                                                                                                                                                 In Charge

Clearly, the employee concerned certifies or attests to the truthfulness of the entries made in the DTR. Moreover, the person in charge verifies the entries as to the prescribed hours. No such certification or attestation and verification are required in a Logbook.

In the case of petitioner Artuz, she certified and attested to the veracity of the entries she made in her DTRs for July and August 1991. The entries were verified by the Personnel Section of RHO VI and its Regional Director.  In the absence of evidence to the contrary, the presumption of regularity in the performance of their official functions must be upheld.

Two.  It was the uncontroverted claim of petitioner that in 1991 the common practice in Region VI, DOH, was that the employees would punch in their cards in the Bundy clock as they entered or left the office. These Punch Cards were compared with their DTRs, not with the Logbook, in determining entitlement to salaries as the signing of the Logbook, according to the Court of Appeals, was devised only as "a last precautionary measure."[12] Evidently, petitioner Artuz received her salaries for July and August 1991 as no irregularity was found in her attendance in office.

Interestingly, it was only in a Memorandum dated 26 October 1994 that Dr. Merceditas V. Cavaneyro, OIC-Director IV, DOH, Region VI, required the employees of the Regional Field Health Office of Region VI "to keep a daily record of office attendance registered in the Bundy Clock and in the logbook or attendance sheet."[13] It further provided -

The logbook or attendance sheet containing signatures of employees shall certify correctness of bundy clock entries in the punch card.  Both documents shall contain the same entries.

The Personnel Section is hereby authorized to check entries in the punch cards vis-à-vis the attendance sheet.  Falsification or irregularities in the keeping of time records shall be dealt with accordingly.[14]

The Letter-Complaint against petitioner Artuz was filed on 11 December 1991 and the aforementioned Memorandum was issued only on 26 October 1994. Obviously, the policy of strict compliance with the signing of the Logbook or attendance sheet was only made almost three (3) years after the filing of the instant Letter-Complaint against petitioner Artuz. This Memorandum of 26 October 1994, therefore, cannot be made to apply to her.

Third.  The CSC and the Court of Appeals faulted petitioner Artuz for her non-production of her Punch Cards. In its Resolution No. 981650, the CSC stated that petitioner Artuz never presented her Punch Cards and that she did not even explain where they were.[15] On its part, the appellate court noted that the Punch Cards were "not at all offered in evidence."[16] This assumes that the Punch Cards would prove that the entries therein did not tally with the DTRs of petitioner. This is pure speculation leading to a vicious conclusion.

Petitioner Artuz did not present her Punch Cards in evidence as she was not required to do so; but even assuming that she was, the Punch Cards were not in her custody. They were where they should be - in the possession of the Personnel Section, RHO VI, which should have presented those Punch Cards against her if they did not tally with her DTRs. Certainly, it was not the duty of petitioner to disprove what private respondent Bornales failed to prove. As complainant against petitioner, the burden was on private respondent Bornales to prove that the Punch Cards of petitioner did not tally with her DTRs. Conversely, it could be presumed that the Punch Cards if presented by private respondent Bornales would have confirmed the authenticity of the entries in the DTRs of petitioner Artuz, otherwise, why did he not present them in evidence when it was well within his means to do?

Fourth.  Private respondent Bornales had an evil motive to file the instant Letter-Complaint against petitioner Artuz. Indeed, if private respondent Bornales was only acting in good faith - and not moved to retaliate against petitioner - he should have reported the matter much earlier rather than wait, as he did, for the time when he was administratively charged by petitioner with Gross Dishonesty, Grave Misconduct, Insubordination and Conduct Prejudicial to the Best Interest of the Service, before filing his Letter-Complaint against petitioner.

Finally.  Findings of fact of an administrative agency must be respected and this Court should not be tasked to weigh once more the evidence submitted before the administrative body. However, it is axiomatic that such findings of fact should be supported by substantial evidence. We are not convinced that the non-signing in the Logbook by petitioner Artuz alone is substantial evidence considering that we have clearly shown in the above discussion that it is not "the best evidence to prove attendance of an employee," unlike the questioned DTRs that were duly certified by the employee concerned, verified by his immediate supervisor, and authenticated by the head of the regional office.

In administrative proceedings, the complainant has the burden of proving, by substantial evidence, the allegations in the complaint.[17] The DTR reflects the official attendance of the employee in the absence of proof that the employee concerned has falsified his DTR. In the instant case, private respondent Bornales failed to substantiate his claim of falsification by petitioner of her DTRs on the basis of the Logbook alone. As the burden was not carried out by private respondent, petitioner must be cleared of all charges and accountabilities under the law. After all, petitioner was wrongly charged of an offense that could have caused her her career, and even tranquility of the mind. She is a career public servant, then as Legal Officer IV of DOH, RHO VI, and now Assistant Prosecutor of the City of Iloilo. As such, we must correct the injustice done to her by rehabilitating her name through a finding of innocence.

IN VIEW WHEREOF, the Motion for Reconsideration is GRANTED. The Decision of the Court of Appeals affirming the Resolution of the Civil Service Commission dismissing petitioner Ofelia D. Artuz from the service with all its accessory penalties is REVERSED and SET ASIDE and the instant case against her is DISMISSED.

SO ORDERED.

Davide, Jr., C.J., Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.
Melo, J., in the result.
Puno, J., on official leave.



[1] Rollo, pp. 74-75.

[2] Id., pp. 81-83.

[3] Penned by Chairman Patricia A. Sto. Tomas, concurred in by Commissioners Ramon P. Ereneta, Jr. and Thelma P. Gaminde.
[4] This report of RO No. VI was merely quoted from Resolution No. 981650, but there is no copy of the report in the Rollo.
[5] Penned by Commissioner Thelma P. Gaminde, concurred in by Chairman Corazon Alma G. De Leon and Commissioner Jose F. Erestain, Jr.
[6] Ibid., citing Galan v. Napase, A.M. No. P-90-417, 10 April 1992, 208 SCRA 1.

[7] See Note 5.

[8] Penned by Associate Justice Conrado M. Vasquez, Jr., concurred in by Associate Justices Rodrigo V. Cosico and Teodoro P. Regino.

[9] Id., citing Sec. 9, Rule XIV, Omnibus Rules Implementing Book V, Administrative Code of 1987.

[10] Rollo, pp. 154-175.

[11] Id., pp. 183-184.

[12] See Note 8, p. 4.

[13] Rollo, p. 126.

[14] Ibid.

[15] See Note 5, p. 5.

[16] See Note 13.

[17] Lorena v. Encomienda, A.M. No. MTJ-99-1177, 8 February 1999, 302 SCRA 632.

DILG Memorandum Circular 97-193 authorizing petition for review of the decision of the Board of Election Supervisors of the Liga ng mga Barangay with the regular courts is of doubtful constitutionality.

403 Phil. 693

THIRD DIVISION

G.R. No. 139813, January 31, 2001

JOELBITO-ONON, PETITIONER, VS. HON. JUDGE NELIA YAP FERNANDEZ, R.T.C. BR. 50 - PUERTO PRINCESA CITY AND PALAWAN, AND ELEGIO QUEJANO, JR., RESPONDENTS.

D E C I S I O N

GONZAGA-REYES, J.:

This Petition for Certiorari and Prohibition with prayer for the issuance of a temporary restraining order and writ of injunction seeks the reversal of the Order of the Regional Trial Court of Palawan and Puerto Princesa City,[1] Branch 50 in SPL. PROC. NO. 1056 entitled "Elegio F. Quejano, Jr., petitioner vs. Joel Bito-Onon, et. al., respondents" which denied herein petitioner's motion to dismiss the Petition for Review of the Resolution of the Board of Election Supervisors dated August 25, 1997 in case number L-10-97 filed by herein private respondent with said court.


It appears from the records that the petitioner, Joel Bito-Onon is the duly elected Barangay Chairman of Barangay Tacras, Narra, Palawan and is the Municipal Liga Chapter President for the Municipality of Narra, Palawan. The private respondent, Elegio Quejano, Jr. on the other hand, is the duly elected Barangay Chairman of Barangay Rizal, Magsaysay, Palawan and is the Municipal Liga Chapter President for the Municipality of Magsaysay, Palawan. Both Onon and Quejano were candidates for the position of Executive Vice-President in the August 23, 1997 election for the Liga ng Barangay Provincial Chapter of the province of Palawan. Onon was proclaimed the winning candidate in the said election prompting Quejano to file a post proclamation protest with the Board of Election Supervisors (BES), which was decided against him on August 25, 1997.

Not satisfied with the decision of the BES, Quejano filed a Petition for Review of the decision of the BES with the Regional Trial Court of Palawan and Puerto Princesa City (RTC). On April 26, 1999, Onon filed a motion to dismiss the Petition for Review raising the issue of jurisdiction. Onon claimed that the RTC had no jurisdiction to review the decisions rendered by the BES in any post proclamation electoral protest in connection with the 1997 Liga ng mga Barangay election of officers and directors. In his motion to dismiss, Onon claimed that the Supplemental Guidelines for the 1997 Liga ng mga Barangay election issued by the DILG on August 11, 1997 in its Memorandum Circular No. 97-193, providing for review of decisions or resolutions of the BES by the regular courts of law is an ultra vires act and is void for being issued without or in excess of jurisdiction, as its issuance is not a mere act of supervision but rather an exercise of control over the Liga's internal organization.

On June 22, 1999, the RTC denied Onon's motion to dismiss. In its order, the RTC ratiocinated that the Secretary of the Department of Interior and Local Government[2] is vested with the power "to establish and prescribe rules, regulations and other issuances and implementing laws on the general supervision of local government units and the promotion of local autonomy and monitor compliance thereof by said units."[3] The RTC added that DILG Circular No. 97-193 was issued by the DILG Secretary pursuant to his rule-making power as provided for under Section 7, Chapter II, Book IV of the Administrative Code.[4] Consequently, the RTC ruled that it had jurisdiction over the petition for review filed by Quejada.[5]

Motion for reconsideration of the aforesaid Order was denied[6] prompting the petitioner to file the present petition wherein the following issues are raised:
A.
WHETHER OR NOT THE QUESTIONED PROVISION IN MEMORANDUM CIRCULAR 97-193 WAS ISSUED BY THE DILG SECRETARY IN EXCESS OF HIS AUTHORITY.


B.
WHETHER OR NOT THE RESPONDENT JUDGE COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING THE QUESTIONED ORDERS.[7]
In support of his petition, Onon argues that the "Supplemental Guidelines for the 1997 Synchronized Election of the Provincial and Metropolitan Chapters and for the Election of the National Chapter of the Liga ng mga Barangay" contradicts the "Implementing Rules and Guidelines for the 1997 General Elections of the Liga ng mga Barangay Officers and Directors" and is therefore invalid. Onon alleges that the Liga ng mga Barangay (LIGA) is not a local government unit considering that a local government unit must have its own source of income, a certain number of population, and a specific land area in order to exist or be created as such. Consequently, the DILG only has a limited supervisory authority over the LIGA. Moreover, Onon argues that even if the DILG has supervisory authority over the LIGA, the act of the DILG in issuing Memorandum Circular No. 97-193 or the supplemental rules and guidelines for the conduct of the 1997 LIGA elections had the effect of modifying, altering and nullifying the rules prescribed by the National Liga Board. Onon posits that the issuance of said guidelines allowing an appeal of the decision of the BES to the regular courts rather than to the National Liga Board is no longer an exercise of supervision but an exercise of control.[8]

In his comment to the petition, private respondent Quejano argues that the Secretary of the DILG has competent authority to issue rules and regulations like Memorandum Circular No. 97-893. The Secretary of DILG's rule-making power is conferred by the Administrative Code. Considering that the Memorandum Circular was issued pursuant to his rule making power, Quejano insists that the lower court did not commit any reversible error when it denied Onon's motion to dismiss.[9]

On the other hand, the public respondent represented herein by the Solicitor General, filed a separate Manifestation and Motion in Lieu of Comment agreeing with the position of petitioner Onon. The Solicitor General affirms Onon's claim that in issuing the questioned Memorandum Circular, the Secretary of the DILG effectively amended the rules and guidelines promulgated by National Liga Board. This act was no longer a mere act of supervision but one of control. The Solicitor General submits that the RTC committed grave abuse of discretion in not dismissing the petition for review of the BES decision filed before it for failure of the petitioner to exhaust the rightful remedy which was to appeal to the National Liga Board.[10]

On October 27, 1999, this Court denied petitioner Onon's motion for the issuance of restraining order for lack of merit.

After a careful review of the case, we sustain the position of the petitioner.

The resolution of the present controversy requires an examination of the questioned provision of Memorandum Circular No. 97-193 and the Implementing Rules and Guidelines for the 1997 General Elections of the Liga ng mga Barangay Officers and Directors (GUIDELINES). The memorandum circular reads, insofar as pertinent, as follows:
"Any post-proclamation protest must be filed with the BES within twenty-four (24) hours from the closing of the election. The BES shall decide the same within forty-eight (48) hours from receipt thereof. The decision of the BES shall be final and immediately executory without prejudice to the filing of a Petition for Review with the regular courts of law."[11] (emphasis supplied)
On the other hand, the GUIDELINES provides that the BES shall have the following among its duties:
"To resolve any post-proclamation electoral protest which must be submitted in writing to this Board within twenty-four (24) hours from the close of election; provided said Board shall render its decision within forty-eight (48) hours from receipt hereof; and provided further that the decision must be submitted to the National Liga Headquarters within twenty-four (24) hours from the said decision. The decision of the Board of Election Supervisors in this respect shall be subject to review by the National Liga Board the decision of which shall be final and executory."[12] (emphasis supplied)
Memorandum Circular No. 97-193 was issued by the DILG Secretary pursuant to the power of general supervision of the President over all local government units which was delegated to the DILG Secretary by virtue of Administrative Order No. 267 dated February 18, 1992.[13] The President's power of general supervision over local government units is conferred upon him by the Constitution.[14] The power of supervision is defined as "the power of a superior officer to see to it that lower officers perform their functions in accordance with law."[15] This is distinguished from the power of control or "the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the latter."[16]

On many occasions in the past, this court has had the opportunity to distinguish the power of supervision from the power of control. In Taule vs. Santos,[17] we held that the Chief Executive wielded no more authority than that of checking whether a local government or the officers thereof perform their duties as provided by statutory enactments. He cannot interfere with local governments provided that the same or its officers act within the scope of their authority. Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body.[18] Officers in control lay down the rules in the doing of an act. If they are not followed, it is discretionary on his part to order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. Supervising officers merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done to conform to the prescribed rules. He cannot prescribe his own manner for the doing of the act.[19]

Does the President's power of general supervision extend to the liga ng mga barangay, which is not a local government unit?[20]

We rule in the affirmative. In Opinion No. 41, Series of 1995, the Department of Justice ruled that the liga ng mga barangay is a government organization, being an association, federation, league or union created by law or by authority of law, whose members are either appointed or elected government officials. The Local Government Code[21] defines the liga ng mga barangay as an organization of all barangays for the primary purpose of determining the representation of the liga in the sanggunians, and for ventilating, articulating and crystallizing issues affecting barangay government administration and securing, through proper and legal means, solutions thereto.[22] The liga shall have chapters at the municipal, city, provincial and metropolitan political subdivision levels. The municipal and city chapters of the liga shall be composed of the barangay representatives of the municipal and city barangays respectively. The duly elected presidents of the component municipal and city chapters shall constitute the provincial chapter or the metropolitan political subdivision chapter. The duly elected presidents of highly urbanized cities, provincial chapters, the Metropolitan Manila chapter and metropolitan political subdivision chapters shall constitute the National Liga ng mga Barangay.[23]

The liga at the municipal, city, provincial, metropolitan political subdivision, and national levels directly elect a president, a vice-president and five (5) members of the board of directors. The board shall appoint its secretary and treasurer and create such other positions as it may deem necessary for the management of the chapter.[24]

The ligas are primarily governed by the provisions of the Local Government Code.[25] However, their respective constitution and by-laws shall govern all other matters affecting the internal organization of the liga not otherwise provided for in the Local Government Code provided that the constitution and by-laws shall be suppletory to the provisions of Book III, Title VI of the Local Government Code and shall always conform to the provisions of the Constitution and existing laws.[26]

Having in mind the foregoing principles, we rule that Memorandum Circular No. 97-193 of the DILG insofar as it authorizes the filing a Petition for Review of the decision of the BES with the regular courts in a post proclamation electoral protest is of doubtful constitutionality. We agree with both the petitioner and the Solicitor General that in authorizing the filing of the petition for review of the decision of the BES with the regular courts, the DILG Secretary in effect amended and modified the GUIDELINES promulgated by the National Liga Board and adopted by the LIGA which provides that the decision of the BES shall be subject to review by the National Liga Board. The amendment of the GUIDELINES is more than an exercise of the power of supervision but is an exercise of the power of control, which the President does not have over the LIGA. Although the DILG is given the power to prescribe rules, regulations and other issuances, the Administrative Code limits its authority to merely "monitoring compliance" by local government units of such issuances.[27] To monitor means "to watch, observe or check" and is compatible with the power of supervision of the DILG Secretary over local governments, which is limited to checking whether the local government unit concerned or the officers thereof perform their duties as per statutory enactments.[28] Besides, any doubt as to the power of the DILG Secretary to interfere with local affairs should be resolved in favor of the greater autonomy of the local government.[29]

The public respondent judge therefore committed grave abuse of discretion amounting to lack or excess of jurisdiction in not dismissing the respondent's Petition for Review for failure to exhaust all administrative remedies and for lack of jurisdiction.

WHEREFORE, the instant petition is hereby GRANTED. The Order of the Regional Trial Court dated June 22, 1999 is REVERSED and SET ASIDE. The Petition for Review filed by the private respondent docketed as SPL. PROC. NO. 1056 is DISMISSED.

SO ORDERED.

Melo, (Chairman, Third Division), Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.



[1] Penned by Judge Nelia Yap Fernandez.

[2] Secretary Robert Z. Barbers.

[3] RTC Order quoting Book IV, Title XII, Chapter 1, Sec. 3 (2) of the Administrative Code; Rollo, 84.

[4] "(3) Promulgate rules and regulations necessary to carry out department objectives, policies, functions, plans, programs and projects;"

[5] Rollo, 84-85.

[6] Order dated July 26, 1999; Rollo, 89.

[7] Memorandum for the Petitioner, 3; Rollo, 155.

[8] Petition, 7-12; Rollo, 10-15.

[9] Comment, 4-7; Rollo, 119-121.

[10] Manifestation and Motion in Lieu of Comment, 3-5; Rollo, 126-128.

[11] Article II, par. 3.

[12] § 1, Article VIII, par. 1.2.2.

[13] See Whereas clauses, Memorandum Circular No. 97-193, August 11, 1997.

[14] § 4, Article X.

[15] Drilon vs. Lim 335 SCRA 135, 141 [1994].

[16] Ibid, 140-141.

[17] 200 SCRA 512.

[18] Ibid.

[19] Drilon vs. Lim Supra, 142.

[20] As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators or viability and projected capacity to provide services. These are income, population and land area. See § 7, Local Government Code, Republic Act No. 7160.

[21] Republic Act No. 7160.

[22] § 491, Local Government Code.

[23] § 492, Local Government Code.

[24] § 493, Local Government Code.

[25] Book III, Title VI, Local Government Code.

[26] § 507, Local Government Code.

[27] Taule vs. Santos, 200 SCRA 512, 523 [1991].

[28] Ibid.

[29] Ibid.