BONDOC, Artemio S.

Re:   Decision of the National Appellate

          Board; Where Appealable

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

 

 

 

RESOLUTION NO. 02-0025

 

 

 

          Artemio S. Bondoc, former Senior Police Officer 3, Philippine National Police (PNP) Maritime Command, appeals the decision dated January 23, 2001 of the National Police Commission (NAPOLCOM) that the decision of the National Appellate Board (NAB), Fourth Division, (affirming his dismissal from the service by then Chief of the PNP Umberto A. Rodriguez for Grave Misconduct), is final and executory and is not appealable to the Secretary of the Department of the Interior and Local Government (DILG). The appeal was previously indorsed by Undersecretary Rafaelito M. Garayblas of the DILG to NAPOLCOM.

 

          The decision of NAPOLCOM reads in part, as follows:

 

          “This pertains to your appeal (with enclosures) addressed to the Secretary, DILG from the Decision of the National Appellate Board, this Commission affirming the Decision of the Chief, PNP summarily dismissing you from the police service. Your appeal was referred to this Commission by Hon. Rafaelito M. Garayblas, Undersecretary for Peace and Order, DILG, in his 1st Indorsement dated November 6, 2000 which was received by the Commission on December 18, 2000.

 

          “Records disclosed that you were administratively charged with ‘Grave Misconduct’ (Non-Support and Immorality) wherein you were found culpable and was summarily dismissed from the police service by the Chief, PNP in his Decision dated December 17, 1993. Subsequently, you appealed with the Commission’s National Appellate Board. In a Decision rendered by the Fourth Division, NAB on January 19, 1996, the Board affirmed the Decision of the Chief, PNP. Hence, the appeal.

 

          “While it is true that decisions of the Regional Appellate Board (RAB) involving dismissal, forced resignation and demotion in rank are appealable to the Office of the Secretary, DILG as contained in Sec. 45, RA 6975 and in the Decision of the Third Division, Supreme Court dated August 22, 1996 in GR No. 119645 entitled: ‘SPO3 Noel Cabada et al vs. Rafael M. Alunan, et al’, this particular mode of appeal is not however obtaining in the case of the National Appellate Board (NAB) whose decisions are final and executory. (Sec. 4, Rule V, Napolcom Memorandum Circular No. 91-007 dated August 9, 1991)”

 

          In his letter-appeal, Bondoc averred that:

 

          "Section 91, RA No. 6975, as amended, provides that: 'The Civil Service Law and its implementing rules and regulations shall apply to all personnel of the Department.' On the other hand, Section 32, Rule XIV of the Omnibus Rules provides inter alia that before appeal could be made to the Commission, the decision imposing the penalty of dismissal from the service should first be appealed to the Department head concerned as a condition sine qua non for appeal to the Commission. I first brought my case on appeal to the National Appellate Board (NAB) but the same was denied. Thereafter, I went to the Secretary, Department of the Interior and Local Government but it was indorsed to the National Police Commission for appropriate action. In a letter dated January 23, 2001 which I received on March 1, 2001, I was informed that the NAB decision is not appealable to the Secretary, DILG hence there is nothing more that the Secretary, DILG could do in my case notwithstanding the provision of Section 91, RA No. 6975.

 

          "I beg to disagree with the statement of the NAPOLCOM on this matter. A cursory reading of all applicable laws, rules and regulations would reveal that the decision of the Chief, PNP is appealable to the National Appellate Board. The Board is composed by the NAPOLCOM Commissioners except the Secretary, DILG who set (sic) as an ex-oficio chairman of the Commission and not a member of the NAB. Considering that the SILG is not a member of the NAB, it could only mean that the NAB decision could still be brought to the DILG for review before it could be pursued before the Civil Service Commission."

 

The issue raised in this appeal is purely a question on the proper interpretation of Section 47, paragraph 2, Chapter 7, Title I, Subtitle A of Executive Order No. 292 (Administrative Code of 1987),  which the Commission is tasked to implement, vis-à-vis Section 45 of Republic Act No. 6975, as amended (Department of the Interior and Local Government Act of 1990). In resolving this issue, we take proper notice of a letter by DILG Secretary Jose S. Lina, Jr. that decisions of the NAB are not appealable to the DILG Secretary.

 

          Records show that on December 17, 1993, appellant Bondoc was found guilty of Grave Misconduct by then Chief of the PNP Umberto A. Rodriguez upon a complaint filed by appellant's wife Trinidad B. Bondoc.

 

          On appeal, the NAPOLCOM National Appellate Board (NAB), Fourth Division, issued a decision dated January 19, 1996 dismissing Bondoc’s appeal and affirming the decision of the Chief of the PNP.

 

          From the decision of the NAB, appellant Bondoc filed an appeal to the Secretary of the DILG on September 25, 2000. It appears that the Secretary did not rule on the appeal but instead, DILG Undersecretary for Peace and Order Rafaelito M. Garayblas referred Bondoc's appeal to the NAPOLCOM in his 1st Indorsement dated November 6, 2000.

 

          In a letter dated January 23, 2001, the NAPOLCOM, through Commissioner Leo S. Magahum, informed Bondoc that the decision of the NAB is final and executory and not appealable to the Secretary, DILG. In a letter dated March 5, 2001, Bondoc appealed the said decision to the Commission and contended that the decision of the NAB is appealable to the Secretary of the DILG.

 

          The thrust of the NAPOLCOM decision is that there is no law or rule providing for the remedy of appeal from the decision of the NAB, hence, its decisions are final and executory. To support this contention, the NAPOLCOM cited Section 45 of R. A. No. 6975 as amended, and the case of Cabada vs. Alunan, supra. Further, under Section 4, Rule V of NAPOLCOM Memorandum Circular No. 91-007, as reiterated under Section 3 of NAPOLCOM MC No. 94-002 dated October 26, 1994, the decisions of the NAB are final and executory.

 

          Section 45 of Republic Act No. 6975 (Department of the Interior and Local Government Act of 1990, as amended) is hereto reproduced for reference, thus:

 

          “SEC. 45. Finality of Disciplinary Action. – The disciplinary action imposed upon a member of the PNP shall be final and executory: Provided; That a disciplinary action imposed by the regional director or by the PLEB involving demotion or dismissal from the service may be appealed to the regional appellate board within ten (10) days from receipt of the copy of the notice of decision: Provided, further, That the disciplinary action imposed by the Chief of the PNP involving demotion or dismissal may be appealed to the National Appellate Board within ten (10) days from receipt thereof: Provided, furthermore, That, the regional or National Appellate Board, as the case may be, shall decide the appeal within sixty (60) days from receipt of the notice of appeal: Provided, finally, That failure of the regional appellate board to act on the appeal within said period shall render the decision final and executory without prejudice, however, to the filing of an appeal by either party with the Secretary.”

         

It is true that Section 45 quoted above is silent as regards the availability of an appeal from a decision rendered by the NAB and the above-stated NAPOLCOM memorandum circulars state that decisions of the NAB are final and executory. These should not, however, be construed to foreclose  appeals from decisions of the NAB to the DILG Secretary. Other pertinent laws on administrative discipline of civil service officials and employees should be taken into consideration. Thus, Section 47, paragraph 2, Chapter 7, Title I, Subtitle A, Book V of E.O. No. 292 provides that:

 

          “(2)    The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decision shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days’ salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal in which case the same shall be executory only after confirmation."

 

The above-quoted provision is clear. The decision of a bureau or office head may be initially appealed to the department head concerned whose decision, in turn, may be appealed to this Commission.

 

Section 6 of R.A. No. 6975, as amended, provides that the DILG shall consist of, among other bureaus, the NAPOLCOM and the PNP. Under Section 6, Chapter 2, Book IV of Executive Order No. 292 (Administrative Code of 1987), the Secretary of a department has supervision and control of the department. In the case of the Secretary of the DILG, Section 7 of Executive Order No. 262 (Reorganizing the Department of Local Government and for Other Purposes) issued on July 25, 1987, specifically provides that the Secretary of the DILG has the power of supervision and control of his department. This power was later recognized and affirmed in Section 10 of R.A. No. 6975, as amended. As defined, the power of control "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter" (Bernas, The 1987 Philippine Constitution, A Reviewer-Primer, 1997 3rd Edition, page 285).

 

          Based from the foregoing discussions, it follows that the decisions of the NAB may initially be appealed by the aggrieved party to the Secretary of the DILG and finally to the CSC. Thus, in the instant case, Bondoc's appeal from the decision of the NAB, Fourth Division with the Secretary of the DILG was filed before the proper forum.

 

          Hence, in CSC Resolution No. 98-3108 (LABAY, Samuel S.) dated December 7, 1998, the Commission ruled:

 

          “Matters involving disciplinary action against officers and employees of the different departments of the government are appealable to the department head. Only decisions of the department heads are appealable to this Commission.

 

                                                xxx

 

          “The Commission takes judicial notice that the NAB, an office under the National Police Commission (NAPOLCOM), is under the Department of the Interior and Local Government (DILG). Hence, the decision of the NAB is appealable to the Secretary of the DILG."

 

Pertinently, the NAPOLCOM does not have jurisdiction over the appeal because Section 14 of R. A. No. 6975, as amended, provides:

 

          "SEC. 14. Powers and Functions of the Commission. - x x x

 

x x x

 

          "(j) Affirm, reverse or modify, through the National Appellate Board, personnel disciplinary action involving demotion or dismissal from the service imposed upon members of the Philippine National Police by the Chief of the Philippine National Police;

 

          "(k) Exercise appellate jurisdiction through the regional appellate boards over administrative cases against policemen and over decisions on claims for police benefits x x x"

 

In construing this provision, the Supreme Court categorically stated that “(t)his section clearly shows that the NAPOLCOM exercises appellate jurisdiction only on the following cases and through (a) the NAB in personnel disciplinary actions involving demotion or dismissal from the service imposed by the Chief of the PNP, and (b) the RAB in administrative cases against policemen and over decisions on claims for police benefits. It has no appellate jurisdiction over decisions rendered by the NAB and the RAB" (Cabada vs. Alunan III, 260 SCRA 838 [1996]).

 

The reliance of the NAPOLCOM in the above-stated case of Cabada vs. Alunan III is misplaced. In this case, the Supreme Court ruled:

 

"As thus construed and harmonized, it follows that if a RAB fails to decide an appealed case within sixty days from receipt of the notice of appeal, the appealed decision is deemed final and executory, and the aggrieved party may forthwith appeal therefrom to the Secretary of the DILG. Likewise, if the RAB has decided the appeal within the sixty-day period, its decision may still be appealed to the Secretary of the DILG."

 

Precisely, because the issue presented before the Supreme Court in this case is the availability of the remedy of appeal from the decision of the RAB rendered within the reglementary period of sixty (60) days, the said case did not dwell on the availability of an appeal from the decisions of the NAB. But this should not mean that such is no longer available. In the same case, the Supreme Court further stated:

 

"Section 45 of the DILG Act of 1990 specifically provides that if a RAB fails to decide an appeal within the reglementary period of sixty days, the appealed decision becomes final and executory without, however, prejudice to the right of the aggrieved party to appeal to the Secretary of the DILG. The said provision is, however, silent as regards the availability of an appeal from a decision rendered by a RAB within the reglementary period.

 

"This gap in Section 45 cannot be construed to prohibit appeals from decisions of the RAB rendered within the reglementary period, for while the epigraph of the section is worded Finality of Disciplinary Action, there is nothing therein that explicitly bars any further appeal. Complementary laws on discipline of government officials and employees must then be inquired into considering that in conformity with the mandate of the Constitution that the PNP must be national in scope and civilian in character, it is now a part, as a bureau, of the reorganized DILG. As such, it falls within the definition of the civil service in Section 2(1), Article IX-B of the Constitution. For this reason, Section 91 of the DILG Act of 1990 provides:

 

'SEC. 91. Application of Civil Service Laws. - The Civil Service Law and its implementing rules and regulations shall apply to all personnel of the Department.'

 

"The Civil Service Law referred to in Section 91 of the DILG Act of 1990 is Subtitle A, Title I, Book V of the Administrative Code of 1987 (E.O. No. 292). Section 47 Chapter 6 thereof provides, inter alia, that in cases where the decision rendered by a bureau or office is appealable to the Commission, the same may initially be appealed to the department and finally to the Commission.

 

"The rules and regulations implementing the Civil Service Law referred to in Section 91 of the DILG Act of 1990 is the Omnibus Rules Implementing Book V of Executive Order No. 292 known as the Administrative Code of 1987 promulgated by the CSC. Sections 31 and 32, Rule XIV of the said Rules provide as follows.

 

     x x x

 

"Under Section 7 of E.O. No. 262, the Secretary of the DILG has the power of supervision and control of his Department. His powers and functions thereunder are recognized and affirmed in Section 10 of the DILG Act of 1990.

 

"In view then of the aforementioned gap in Section 45 of the DILG Act of 1990, the provisions of the Civil Service Law and the rules and regulations implementing it must be taken into account in light of the maxim interpretare concordare legibus est optimus interpretandi or every statute must be so construed and harmonized with other statutes as to form a uniform system of jurisprudence. 

 

"As thus construed and harmonized, it follows that if a RAB fails to decide an appealed case within sixty days from receipt of the notice of appeal, the appealed decision is deemed final and executory, and the aggrieved party may forthwith appeal therefrom to the Secretary of the DILG. Likewise, if the RAB has decided the appeal within the sixty-day period, its decision may still be appealed to the Secretary of the DILG."

By analogy the reasoning of the Supreme Court in arriving at its conclusion that decisions of the RAB rendered within sixty (60) days are appealable to the Secretary of the DILG, would support the conclusion that the decisions of the NAB are first appealable to the Secretary of the DILG pursuant to Section 45 of R.A. No. 6975, as amended, and the decision of the Supreme Court in Cabada and Alunan III, and finally, to the CSC pursuant to Section 47, Chapter 7, Title I, Subtitle A, Book V of E. O. No. 292.

 

WHEREFORE, the appeal of Artemio S. Bondoc is hereby GRANTED. The decision dated January 23, 2001 of the National Police Commission (NAPOLCOM) is REVERSED and SET ASIDE. The Secretary of the Department of the Interior and Local Government  should RESOLVE the appeal filed by Bondoc within a reasonable time.

 

Quezon City,  January 3, 2002

 

 

 

 

                                                                   (Signed)
                                         KARINA CONSTANTINO-DAVID

                                                                    Chairman

 

 

(OB)                                                                              (Signed)

J. WALDEMAR V. VALMORES                                 JOSE F. ERESTAIN, JR.

                         Commissioner                                                        Commissioner

 

 Attested by:

 

                                                                   (Signed)

ARIEL G. RONQUILLO

Director III

 

           

 

CPS/AGR/pvp/cm37-2001

FPG/KPZ/X1/X3/X14/X12(22)

/jrl