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650 Phil. 309

EN BANC

[ G.R. No. 187752, November 23, 2010 ]

IRENE K. NACU, SUBSTITUTED BY BENJAMIN M. NACU, ERVIN K. NACU, AND NEJIE N. DE SAGUN, PETITIONERS, VS. CIVIL SERVICE COMMISSION AND PHILIPPINE ECONOMIC ZONE AUTHORITY, RESPONDENTS.

D E C I S I O N

NACHURA, J.:

Before the Court is a petition for review on certiorari, seeking the reversal of the Court of Appeals (CA) Decision[1] dated December 24, 2008 and Resolution[2] dated May 6, 2009. The assailed Decision held that Irene K. Nacu (Nacu), Enterprise Service Officer III at the Philippine Economic Zone Authority (PEZA), assigned at the Bataan Economic Zone (BEZ), was guilty of dishonesty, grave misconduct, and conduct prejudicial to the best interest of the service, and imposed upon her the penalty of dismissal from the service and its accessory penalties.

The case arose from the following facts:

On December 17, 1999, PEZA issued Memorandum Order No. 99-003, prohibiting its employees from charging and collecting overtime fees from PEZA-registered enterprises. The pertinent portions of the said regulation read:

Effective immediately, PEZA shall provide processing/documentation services required by economic zone export-producers for incoming and outgoing shipments x x x FREE OF OVERTIME FEES/CHARGES x x x.

x x x x

Economic zone export producers, customs brokers, freight forwarders, truckers and other service providers and enterprises are strictly prohibited from offering financial and/or non-financial tokens, compensation, etc. to any PEZA official and/or personnel, in connection with PEZA overtime services rendered and/or other transactions.

In addition, economic zone export-producers, customs brokers, freight forwarders, truckers and other service providers and enterprises are enjoined to notify ranking PEZA officials (Administrator, Manager, Officer-in-Charge, Deputy Director Generals and the Director General) on any difficulties or problems they encounter, particularly those pertaining to lack of service-orientation or improper behavior of any PEZA officer and/or personnel.[3]

Sometime in September 2001, Edison (Bataan) Cogeneration Corporation (EBCC) filed a complaint against Nacu for allegedly charging it overtime fees, despite Memorandum Order No. 99-003.

Acting on the complaint, PEZA immediately conducted a preliminary investigation, during which Atty. Norma B. Cajulis, PEZA's lawyer, interviewed Rey Ligan (Ligan), a document processor at EBCC. Ligan attested, among others, that the overtime fees went to Nacu's group, and that, during the time Nacu was confined in the hospital, she pre-signed documents and gave them to him.

On November 21, 2001, Atty. Procolo Olaivar (Atty. Olaivar) of PEZA Legal Services Group requested the National Bureau of Investigation (NBI) to verify the genuineness of Nacu's signatures appearing on the Statements of Overtime Services (SOS).[4] Original copies of 32 SOS and a specimen of Nacu's signature were then sent to the NBI for comparison.

On January 25, 2002, the NBI informed Atty. Olaivar that "no definite opinion can be rendered on the matter" since "the standards/sample signatures of the subject submitted [we]re not sufficient and appropriate to serve as basis for a specific comparative examination." The NBI then requested that, should PEZA still want it to conduct further examination, it be furnished with additional standard/sample signatures, in the same style and pattern as that of the questioned document, appearing in official/legal documents on file, executed before, during, and after the date of the questioned document.[5]

PEZA referred the 32 SOS, together with the same standard specimen of Nacu's signatures/initials, to the Philippine National Police Crime Laboratory (PNP Crime Lab) for determination of the genuineness of Nacu's signature appearing therein.

In Questioned Document Report No. 052-02 dated May 3, 2002, Rosario C. Perez, Document Examiner II of the PNP Crime Lab, stated her findings, thus -

  1. Scientific comparative examination and analysis of the questioned initials/signatures IRENE NACU/I. NACU  marked "Q-1 to Q-6, Q-11, Q-12, Q-13, Q-15, Q-19, Q-20, Q-21, Q-23, Q-24, Q-25, Q-27 to Q-32" and the submitted standard initials/signatures of Irene K. Nacu marked "S-1 to S-19" inclusive reveal significant divergences in the matter of execution, line quality and stroke structure.

  2. Scientific comparative examination and analysis of the questioned initials/signatures IRENE NACU/I. NACU marked "Q-7 to Q-10, Q-14, Q-16 to Q-18; Q-22, Q-26" and the submitted standard signatures/initials of Irene K. Nacu marked "S-1 to S-19" inclusive reveal significant similarities in the manner of execution, line quality and stroke structure.
x x x x

CONCLUSION
  1. The questioned initials/signatures IRENE NACU/I. NACU marked "Q-1 to Q-6, Q-11, Q-12, Q-13, Q-15, Q-19 to Q-21, Q-23 to Q-25, Q-27 to Q-32" appearing in the twenty-two (22) pieces [of] Statement of Overtime Services and the submitted standard initials/signatures of Irene K. Nacu marked "S-1 to S-19" inclusive WERE NOT WRITTEN BY ONE AND THE SAME PERSON.

  2. The questioned initials/signatures IRENE NACU/I. NACU marked "Q-7 to Q-10, Q-14, Q-16 to Q-18; Q-22, Q-26" appearing in the ten (10) pieces of Statement of Overtime Service and the submitted standard initials/signatures [of] Irene K. Nacu marked "S-1 to S-19" inclusive WERE WRITTEN BY ONE AND THE SAME PERSON.[6]

Finding a prima facie case against Nacu, PEZA Director General Lilia B. de Lima (Director General De Lima) filed a Formal Charge against her for Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service. It was alleged that Nacu unlawfully charged P3,500.00 overtime fee from EBCC on ten occasions (covered by the ten SOS which the PNP Crime Lab found to have been written by Nacu), for a total amount of P35,000.00.

Nacu denied that the signatures appearing on the ten overtime billing statements were hers.  She averred that it was impossible for her to charge EBCC overtime fees as the latter was well aware that PEZA employees may no longer charge for overtime services; that she had no actual notice of  Memorandum Order No. 99-003; and that she caused no damage and prejudice to PEZA and EBCC.

During the hearing, PEZA presented the following witnesses: Rosario Perez, the document examiner who examined the SOS; Atty. Dante Quindoza, Zone Administrator of BEZ, who testified that Nacu was one of the officials authorized to sign the documents; Romy Zaragosa, Corporate Relations Manager of Covanta Energy, who attested that meetings were held on November 17, 2001 and January 25, 2002, wherein Ligan testified that he gave the payment for overtime fees to Nacu; Roberto Margallo (Margallo), Enterprise Service Officer III of PEZA, who testified that he knows Nacu's signature and that he was certain that the signatures appearing on the SOS were hers; Omar Dana, EBCC plant chemist, who testified that EBCC paid, through Ligan, overtime fees to Nacu and some other persons; Elma Bugho, PEZA Records Officer, who testified on the issuance of PEZA Memorandum Order No. 99-003;[7] and Miguel Herrera, then Division Chief of PEZA at the BEZ, who testified that he was responsible for the implementation of PEZA rules and regulations and for assigning examiners upon the request of zone enterprises and brokers.[8]

On February 8, 2005, the PEZA Central Board of Inquiry, Investigation, and Discipline (CBIID), with the approval of Director General De Lima, found Nacu guilty of the acts charged, thus:

Wherefore, in view of the foregoing, the Central Board of Inquiry, Investigation and Discipline (CBIID) -

1. resolves - that Irene K. Nacu committed an act which constitutes a ground for disciplinary action and finds her guilty of dishonesty, grave misconduct[, and conduct] prejudicial to the best interest of service pursuant to Section 46(b)(1), (4) and (27), Book V of Executive Order No. 292 and hereby

2. recommends that - respondent be dismissed from service pursuant to Section 52, Rule IV, Revised Uniform Rules in Administrative Cases in Philippine Civil Service with accessory penalties of:

a) cancellation of eligibility;
b) forfeiture of retirement benefits; and
c) perpetual disqualification from re-employment in  the government service.[9]

Nacu moved for a reconsideration of the CBIID's findings, but the motion was denied. By way of appeal, Nacu elevated the case to the Civil Service Commission (CSC).

On February 19, 2007, the CSC promulgated Resolution No. 070327, affirming the CBIID's resolution, viz.:

WHEREFORE, the appeal of Irene K. Nacu, former Enterprise Service Officer III, Philippine Economic Zone Authority (PEZA), is hereby DISMISSED. Accordingly, the Decision dated February 08, 2005 issued by Director General Lilia B. de Lima finding Nacu guilty of Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service and imposing upon her the penalty of dismissal from the service with the accessory penalties of cancellation of eligibility, forfeiture of retirement benefits, and disqualification from being re-employed in the government service is AFFIRMED.[10]

Nacu filed a motion for reconsideration of CSC Resolution No. 070327, but the motion was denied in Resolution No. 071489 dated August 1, 2007.[11]

Nacu forthwith filed a petition for review with the CA, assailing the CSC resolutions. On September 17, 2007, while the case was pending resolution, Nacu died and was substituted by her heirs, Benjamin Nacu (husband), Nejie N. de Sagun (daughter), and Ervin K. Nacu (son), herein petitioners.

The CA, in the assailed Decision dated December 24, 2008, affirmed the CSC resolutions. The CA could not believe Nacu's claim that she was not aware of Memorandum Order No. 99-003, considering that the order was issued almost two years earlier. According to the CA, as a PEZA employee, Nacu had the obligation to keep herself abreast of everything that transpires in her office and of developments that concern her position. It stressed that even if Nacu had not actually received a copy of the  memorandum order, such circumstance will not foreclose the order's effectivity; and that it is merely an internal regulation which does not require publication for its effectivity.[12]

The CA brushed aside Nacu's objections to (a) Ligan's written statement because it was not made under oath and Ligan was not presented as witness during the hearing; (b) the PNP Crime Lab's findings for being unreliable in light of the NBI's own finding that the samples were not sufficient; and (c) Margallo's testimony identifying Nacu's signatures on the SOS, on the ground that he was not presented as an expert witness. The CA pointed out that proceedings in administrative cases are not strictly governed by technical rules of procedure and evidence, as they are required to be disposed of summarily.

In particular, the CA found pointless Nacu's criticism of the PNP Crime Lab's findings based on the NBI's opinion on the samples given. To counter the same, the CA highlighted the fact that the NBI's opinion did not conclusively state that the signatures were not that of Nacu. It stressed that Nacu failed to adduce clear and convincing evidence to contradict the PNP Crime Lab's findings, relying merely on the NBI's opinion which, to the mind of the CA, did not actually absolve petitioner.

According to the CA, Memorandum Order No. 99-003, the PNP's findings, and the witnesses' testimonies, taken together, were sufficient to hold Nacu administratively liable for the acts complained of. Nacu was not denied due process, considering that she was given the opportunity to explain her side and present evidence, and that she had, in fact, participated in the hearing.

The dispositive portion of the assailed CA Decision reads:

WHEREFORE, premises considered, the Petition for Review is hereby DISMISSED for lack of merit.

SO ORDERED.[13]

A motion for reconsideration was filed by petitioners, but the CA denied the motion in its Resolution[14] dated May 6, 2009. They then elevated the case to this Court through this petition for review on certiorari.

Petitioners submit to this Court the issue of whether the finding that Nacu is guilty of dishonesty, grave misconduct, and conduct prejudicial to the best interest of the service is supported by substantial evidence.

Petitioners' arguments focus largely on the weight given by the CA to the PNP Crime Lab's report, which, they insist, should not be given credence as it is unreliable.  Firstly, it was not shown that the questioned document examiner who examined the SOS was a handwriting expert. Secondly, the signature samples were, according to the NBI, insufficient references for a comparative examination. Thirdly, the sample signatures used were obtained in violation of Nacu's right against self-incrimination. And lastly, the report merely states that there were similarities in the manner of execution, line quality, and stroke structures of the signatures, and that such conclusion does not translate to a finding that the signatures appearing on the SOS are genuine.

Petitioners also object to the CA's reliance on the statements made by Ligan during the preliminary investigation, which were not given under oath. They contend that Nacu was denied due process when Ligan was not presented as witness during the trial, and that there were inconsistencies in Ligan's statements.

And finally, as an affirmative defense, they reiterate that Nacu was not aware of the issuance and implementation of Memorandum Order No. 99-003. They point out that there was, in fact, no showing that the said order had been published in a newspaper, posted at the BEZ, or a copy thereof furnished to Nacu.

We find no merit in this petition.

Substantial evidence, the quantum of evidence required in administrative proceedings, means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[15]  The standard of substantial evidence is satisfied when there is reasonable ground to believe that a person is responsible for the misconduct complained of, even if such evidence might not be overwhelming or even preponderant.[16]

Overall, the testimonies of the witnesses, the statements made by Ligan during the preliminary investigation, and the findings of the PNP Crime Lab on its examination of the signatures on the SOS, amounted to substantial evidence that adequately supported the conclusion that Nacu was guilty of the acts complained of. Petitioners' allegations of unreliability, irregularities, and inconsistencies of the evidence neither discredited nor weakened the case against Nacu.

For one, petitioners cite the PNP's findings as unreliable in light of the NBI's opinion that the samples utilized by the PNP Crime Lab--the same samples submitted to the NBI--were not sufficient to make a comparative examination.

We do not agree. The PNP and the NBI are separate agencies, and the findings of one are not binding or conclusive upon the other. Moreover, as pointed out by the Office of the Solicitor General in its Comment, the NBI's finding referred only to the insufficiency of the samples given; the NBI did not actually make a determination of the genuineness of the signatures. While the NBI may have found the samples to be insufficient, such finding should not have any bearing on the PNP Crime Lab's own findings that the samples were sufficient and that some of the signatures found on the overtime billings matched the sample signatures. The difference of opinion with respect to the sufficiency of the samples could only mean that the PNP Crime Lab observes a standard different from that used by the NBI in the examination of handwriting.

Instead of just discrediting the PNP Crime Lab's findings, Nacu should have channeled her efforts into providing her own proof that the signatures appearing on the questioned SOS were forgeries. After all, whoever alleges forgery has the burden of proving the same by clear and convincing evidence.[17] Nacu could not simply depend on the alleged weakness of the complainant's evidence without offering stronger evidence to contradict the former.

In any case, the CA did not rely solely on the PNP Crime Lab report in concluding that the signatures appearing on the ten SOS were Nacu's. Margallo, a co-employee who holds the same position as Nacu, also identified the latter's signatures on the SOS. Such testimony deserves credence. It has been held that an ordinary witness may testify on a signature he is familiar with.[18] Anyone who is familiar with a person's writing from having seen him write, from carrying on a correspondence with him, or from having become familiar with his writing through handling documents and papers known to have been signed by him may give his opinion as to the genuineness of that person's purported signature when it becomes material in the case.[19]

Petitioners also posit that Nacu was denied her right against self-incrimination when she was made to give samples of her signature. We do not agree. The right against self-incrimination is not self-executing or automatically operational. It must be claimed; otherwise, the protection does not come into play. Moreover, the right must be claimed at the appropriate time, or else, it may be deemed waived.[20] In the present case, it does not appear that Nacu invoked her right against self-incrimination at the appropriate time, that is, at the time she was asked to provide samples of her signature. She is therefore deemed to have waived her right against self-incrimination.

Next, petitioners assail the credibility of Ligan's statement because it was not made under oath and Ligan was not presented as witness during the hearing. Nacu was allegedly denied due process when she was deprived of the opportunity to cross-examine Ligan.

It is settled that, in administrative proceedings, technical rules of procedure and evidence are not strictly applied. Administrative due process cannot be fully equated with due process in its strict judicial sense.[21]  In a recent case, a party likewise protested against the non-presentation of a witness during trial and the lack of opportunity to cross-examine the said witness.  Addressing the issue, the Court held that the contention was unavailing, stating that -

In another case, the Court addressed a similar contention by stating that the petitioner therein could not argue that she had been deprived of due process merely because no cross-examination took place. [Citing Casimiro v. Tandog, 459 SCRA 624, 633 (2005)]. Indeed, in administrative proceedings, due process is satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy or given opportunity to move for a reconsideration of the action or ruling complained of.[22]

The measure of due process to be observed by administrative tribunals allows a certain degree of latitude as long as fairness is not compromised. It is, therefore, not legally objectionable or violative of due process for an administrative agency to resolve a case based solely on position papers, affidavits, or documentary evidence submitted by the parties, as affidavits of witnesses may take the place of their direct testimonies.[23]

In addition, petitioners claim that there were inconsistencies in Ligan's statement. While Ligan allegedly stated that Nacu gave him pre-signed documents during the time that she was in the hospital, and that these pre-signed documents referred to the ten overtime billings referred to in the formal charge, the record does not show that Nacu was confined in the hospital on the dates indicated in the said billings.

To set the record straight, Ligan did not specifically mention that the dates indicated in the pre-signed documents were also the days when Nacu was confined in the hospital. He merely said that Nacu pre-signed some documents during the time that she was in the hospital, and that she gave these documents to him. Neither did he state that these pre-signed SOS were the same ten SOS cited in the formal charge against Nacu. It was petitioners' own assumption that led to this baseless conclusion.

In Nacu's defense, petitioners contend that she (Nacu) was not aware of the existence of Memorandum Order No. 99-003. They aver that there was no evidence showing that Memorandum Order No. 99-003 was posted, published, and promulgated; hence, it cannot be said that the order had already taken effect and was being implemented in the BEZ. Petitioners claim that Nacu had, in fact, no actual knowledge of the said order as she was not furnished with a copy thereof.

Nacu cannot feign ignorance of the existence of the said order. As correctly opined by the CA, it is difficult to believe that Nacu, one of the employees of PEZA affected by the memorandum order, was not in any way informed--by posting or personal notice--of the implementation of the said order, considering that over a year had lapsed since it had been issued. From the testimonies of the other witnesses, who were employees of PEZA and PEZA-registered enterprises, it was evident that the prohibition against charging and collecting overtime fees was common knowledge to them.

At any rate, no publication is required for such a regulation to take effect. Memorandum Order No. 99-003 is an internal regulation that clearly falls within the administrative rules and regulations exempted from the publication requirement, as set forth in the prevailing case of TaƱada v. Hon. Tuvera:[24]

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules on guidelines to be followed by their subordinates in the performance of their duties.[25]

At the very least, Nacu should have been aware that collecting payments directly from PEZA-registered enterprises was strictly prohibited. Months before Memorandum Order No. 99-003 was promulgated, PEZA had already put a stop to the practice of collecting direct payments for overtime fees from PEZA-registered enterprises under Office Order No. 99-0002 dated March 8, 1999. The latter specifically provides that "overtime shall be paid only through the regular payroll system," and that overtime claims shall be supported by the required documents.[26] This was followed by PEZA General Circular No. 99-0001 (Prescribing New Rates of Overtime Pay Payable by Zone Enterprises, Customs Brokers And Other Entities Concerned) dated August 10, 1999, providing that -

4.5. All payments to be made by requesting parties shall be covered by official receipts. IN NO CASE SHALL PAYMENT BE MADE DIRECTLY TO ZONE/PCDU PERSONNEL.

4.6  No additional charges or fees shall be paid by requesting parties, nor shall they offer gifts, "tips" and other financial/material favors to PEZA employees rendering overtime services.

4.7  At the end of the month, all claims of personnel for payment of overtime services shall be supported by the following documents:

4.7.1. Copies of written requests by enterprises and other parties;
4.7.2. Certificate of service or DTR;
4.7.3. Authority to render overtime services; and
4.7.4. Certificate of accomplishment.[27]

Petitioners desperately argue that Nacu could not have charged and collected overtime fees from EBCC as it was well aware of Memorandum Order No. 99-003. The contention is puerile. Petitioners are, in effect, saying that knowledge of the existence of a rule prohibiting a certain act would absolutely prevent one from doing the prohibited act. This premise is undeniably false, and, as a matter of fact, judicial institutions have been founded based on the reality that not everyone abides by the law.

All told, Nacu was rightfully found guilty of grave misconduct, dishonesty, and conduct prejudicial to the best interest of the service, and penalized with dismissal from the service and its accessory penalties. The general rule is that where the findings of the administrative body are amply supported by substantial evidence, such findings are accorded not only respect but also finality, and are binding on this Court. It is not for the reviewing court to weigh the conflicting evidence, determine the credibility of witnesses, or otherwise substitute its own judgment for that of the administrative agency on the sufficiency of evidence.[28]

Nacu's length of service or the fact that this was her first offense has not been clearly established. We cannot reasonably take them into consideration in reviewing the case. At any rate, these circumstances cannot serve to mitigate the violation, considering the gravity of the offense and the fact that Nacu's act irreparably tarnished the integrity of PEZA.

WHEREFORE, premises considered, the petition is DENIED. The Court of Appeals Decision dated December 24, 2008 and its Resolution dated May 6, 2009 are AFFIRMED.

SO ORDERED.

Corona, C.J., Carpio, Carpio Morales,  Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Bersamin, Abad, Villarama, Jr., Perez, and Sereno, JJ., concur.
Del Castillo,  J., on official leave.
Mendoza, J., no part.



[1] Penned by Associate Justice Andres B. Reyes, Jr., with Associate Justices Jose C. Mendoza (now a member of this Court) and Sesinando E. Villon, concurring; rollo, pp. 55-71.

[2] Id. at 72-74.

[3] Id. at 118-119.

[4] Id. at 78.

[5] Id. at 83.

[6] Id. at 89-90.

[7] Id. at 121-122.

[8] Id. at 19.

[9] Id. at 60-61.

[10] Id. at 61-62.

[11] Id. at 62.

[12] Id. at 65-66.

[13] Supra note 1, at 71.

[14] Supra note 2.

[15] Dadulo v. Court of Appeals, G.R. No. 175451, April 13, 2007, 521 SCRA 357, 362.

[16] Marcelo v. Bungubung, G.R. No. 175201, April 23, 2008, 552 SCRA 589, 608.

[17] Aznar Brothers Realty v. Court of Appeals, 384 Phil. 95, 112 (2000).

[18] Rules of Court, Rule 130, Sec. 50 provides:

SEC. 50. Opinion of ordinary witnesses. -- The opinion of a witness for which proper basis is given, may be received in evidence regarding --

x x x x

(b) A handwriting with which he has sufficient familiarity.

[19] FRANCISCO, R.J., Evidence, Rule of Court in the Philippines, Rules 128-134 (1996 ed.), p. 366.

[20] People v. Ayson, G.R. No. 85215, July 7, 1989, 175 SCRA 216, 228.

[21] Ocampo v. Ombudsman, 379 Phil. 21, 28 (2000).

[22] Donato, Jr. v. Civil Service Commission Regional Office No. 1, G.R. No. 165788, February 7, 2007, 515 SCRA 48, 60.

[23] Marcelo v. Bungubung, supra note 16, at 603-604.

[24] 230 Phil. 528 (1986).

[25] Id. at 535.

[26] Rollo, p. 98.

[27] Id. at 94.

[28] Remolona v. Civil Service Commission, 414 Phil. 590, 601 (2001).

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