VIARDO, Cesar J.
Re: Simple Neglect of Duty
RESOLUTION NO. 98-1836
Dr. Cesar J. Viardo Chief of Sanitarium III, Dr. Jose N. Rodriguez Memorial Hospital (JRMH), Tala, Caloocan City, appeals the decision of Secretary Carmencita N. Reodica, Department of Health, suspending him from service for alleged violation of existing civil service law when he authorized a "straight eight (8) hour no noon break work schedule" for JRMH administrative employees.
Pertinent portions of the assailed decision of Secretary Reodica read as follows:
x x x
"In view of all foregoing, this Office finds:
"Respondent Viardo is being held administratively responsible for his issuance of Office Order No. 122 s. 1992 on 16 December 1992 which prescribed a straight eight (8) hour no noon break work schedule for certain employees, particularly those assigned in the administrative service of the hospital.
"Records show that the reasons relied upon the respondent in issuing the questioned Office Order was the then existing traffic and transport problems confronting the employees of the Dr. Jose N. Rodriguez Memorial Hospital. In other words, Dr. Viardo, in issuing the Office Order, gave priority consideration to the convenience of the hospital employees thereby unaviodably affecting the quantity and quality of hospital service being rendered to the public.
x x x
"We find that while the Office Order, indeed worked to the convenience and advantage of the hospital employees, however, its implementation resulted in the loss of significant government hours. Considering that the employees-beneficiaries of the issued office order of the respondent were expressly allowed to take "short lunch break", it necessarily follows that the required at least eight (8) hours of work daily or forty (40) hours a week were not observed or complied with. Obviously, it is for this reason that the questioned office order was eventually rescinded. We hold that on account of respondent's issuance of Office Order No. 122, the existing law and rules mandating that government workers should render no less than eight (8) hours of work daily were evaded/violated.
x x x
2. Respondent Cesar J. Viardo, Chief of Sanitarium III, is guilty of Violation of Existing Civil Service Law and Rules pertaining to government office hours and accordingly sentences him, to suffer the penalty of SUSPENSION FOR SIX 960 MONTHS effective upon receipt hereof."
x x x
Viardo in his Appeal stated as follows:
x x x
"Respondent Viardo committed no violation of the Civil Service Law and Rules regarding government office hours when he issued Office Order No. 122, s. 1992 allowing the employees of the hospital to work from 8:00 A.M until 4:00 P.M straight with no noon break. Firstly, as head of the department he has the express power and authority (to) adopt flexible working hours for the purpose of providing good and quality public service. As per Memorandum Circular No. 14, series of 1989 of the Civil Service Commission on the adoption of flexible working hours in the government service, it is specifically provided that " Heads of departments, offices and agencies shall have the authority to approve office working hours: Provided, That in such working hours officials and employees shall render no less than eight hours a day for five days a week for a total of forty hours. " The Order allowing the hospital employees to work from 8:00 AM until 4:00 PM straight, complies with the standard set forth by the above-mentioned Memorandum Circular requiring them to work for eight (8) hours a day or forty (40) hours a week. The respondent having been expressly authorized by the aforesaid Memorandum Circular to issue the Order, hence, there is no violation of thew Civil Service Law and Rules.
"Secondly, granting , arguendo that there was no express grant of such authority, the respondent has an implied power to make such order. Section 5, Rule XVII of the CSC Omnibus Rules on Government Office Hours, which is the rule claimed to have been violated by the Respondent, xxx
x x x
"The number of working hours was not reduced since the employees are required to work for eight (8) hours straight daily. It is not mandatory that there should be one (1) hour lunch break from 12:00 to 1:00 PM but rather the law itself provides that such schedule is the GENERAL RULE. It is crystal clear that there is no hard and fast rule on the eight-hour daily work and that the Rule impliedly authorizes the proper authority to prescribe his department's regulation relative to working hours, consistent with the government's objective of providing quality civil service.
x x x
"The Honorable Secretary rendered its decision merely on the basis of the Complaint-Affidavit of the complaints and the Counter-Affidavit and Memorandum of the Respondents without conducting any further investigation nor hearing, hence, grossly violating the right of the respondent to procedural due process. xxx There was violation of (the) procedural due process for the reason that the Honorable Secretary rendered her decision without conducting clarificatory investigation and/nor hearing to determine the truth of the matter there being conflicting claims and assertions which cannot be resolved on the basis of evidence at hand, hence, denying the respondent reasonable opportunity to present his case. The Respondent was denied of his right to be heard and to present evidence on his behalf which is the very foundation of the right to due process. The fundamental rule of due process requires that a person be accorded notice and opportunity to be heard, which in this case was patently absent.
The issues to be resolved in the instant case are:
1. Whether or not Viardo had the authority to issue the questioned office order modifying the regular office hours and adopting a straight eight (8) hour work schedule for hospital administrative personnel at the JRMH, and;
2. Whether or not Viardo was afforded due process prior to the finding of guilt.
It should be noted that under Section 1, Rule XVII of the Omnibus Rules Implementing Book V of the Administrative Code of 1987, heads of department or agencies are mandated to require all officers and employees under him to strictly observe the prescribed government office hours.
Likewise, Section 5, Rule XVII of the same Omnibus Rules stipulates that:
"Officers and employees of all departments and agencies, except those covered by special laws, shall render not less than eight (8) hours of work a day for five days a week or a total of forty (40) hours a week, exclusive of time for lunch. As a general rule, such hours shall be from eight o'clock in the morning to twelve o'clock noon and from one o'clock to five o'clock in the afternoon on all days except Saturdays, Sundays and Holidays."
The foregoing provisions of law lay the ground rules on government officer hours. It mandates an eight-hour daily work schedule, or a total of forty hours a week, for all government employees, exclusive of the lunch break.
In the instant case, it is incumbent upon Viardo as the head of agency to require JRMH personnel to observe office hours pursuant to the aforequoted rule. In so issuing Officer Order No. 122, s. 1992, modifying the work schedule of certain employees at the JRMH and, in effect, doing away with the lunch break, Viardo was clearly remiss of what is mandated of his office. His argument that such order did not, in any way, reduce the prescribed working hours because the merely removed the meal period, is erroneous. The rules clearly require the observance of a meal period apart from the stipulated time for work. It would not be to the best interest of the service to deprive government employees of their break time, as this is the only occasion when they can enjoy a respite from the rigors of their work.
Elucidating on this point, the Commission, in the case of Lesaca, Bernadette (CSC Resolution No. 93-824), stated as follows:
"On the basis of the aforequoted, government officer and employees and this includes those in PMC are required to render eight (8) working hours a day for five days a week or a total of forty hours a week, exclusive of time for lunch. The intent of RA 1080 (Forty-Hour Week Law) upon which the aforequoted rules were based, is to establish a uniform work schedule to be observed in all government offices for the convenience of the public for the duration of the week.
"Moreover, as a rule, the eight working hours should not include the time for lunch break. Although the law and rules aforequoted do not specifically provide for the number of hours which may be allowed to officials and employees of the government for their lunch break, the same may be implied from the number of working hours a day which is exclusive of time for lunch. The reason for this is to give each employee time to eat and sufficient rest from work in the morning and to enable him to work anew in the afternoon with equal vigor and enthusiasm. xxx"Verily, the said act of Viardo constitutes the offense of Simple Neglect of Duty.
Section 22 (a), Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (EO 292), prescribes the penalty for Simple Neglect of Duty as Follows:
(a) Simple Neglect of Duty
1st Offense - Suspension for (1) month and one (1) day to six (6) months
2nd Offense - Dismissal
Anent the issue on due process, it has consistently been held that "the essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one's side." (Var-Orient Shipping Co. vs. Archacoso, 161 SCRA 732) What the law abhors is the absolute lack of opportunity to be heard. In the instant case, Viardo cannot deny that he was afforded such opportunity. In fact, he was able to submit his Counter-Affidavit and Memorandum to the Formal Charge.
Finally, the requirement of due process does not necessarily involve the conduct of a trial-type hearing. As held in the case of Resmadero, Leonardo (CSC Resolution No. 96-1396), to wit:
"Let it be stated that in administrative proceedings, trial-type hearings observed in the regular court where the parties are usually assisted by counsel, are not strictly observed. In fact, actual hearings of the case can be dispensed with, since respondents can be heard in their pleadings"
WHEREFORE, Dr. Cesar J. Viardo is hereby found guilty of Simple Neglect of Duty. He is imposed the penalty of a fine equivalent to three (3) months salary.
Quezon City, July 9, 1998
CORAZON ALMA G. DE LEON
THELMA P. GAMINDE
JOSE F. ERESTAIN, JR.
ARIEL G. RONQUILLO