REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA

RODERICK R. RAMOS
Petitioner.

-versus- SC GR NO……………………..
(CA GR. SP No. ______)
Petition for Review under Rule 45

CIVIL SERVICE COMMISSION (CSC),

PHILIPPINE AMUSEMENT AND
GAMING CORPORATION (PAGCOR)
Respondents
x--------------------------------------------------------x

PETITION FOR REVIEW

PETITIONER, by the undersigned counsel, and unto the Highest
Court of the Republic, most respectfully avers as follows:

PRELIMINARY STATEMENTS

The inflexible rule in our jurisdiction is that social

legislation must be liberally construed in favor of the
beneficiaries. Retirement laws, in particular, are liberally
construed in favor of the retiree because their objective is to
provide for the retiree’s sustenance and, hopefully, even
comfort, when he no longer has the capability to earn a
livelihood. The liberal approach aims to achieve the
humanitarian purposes of the law in order that efficiency,
security, and well-being of government employees may be
enhanced. Indeed, retirement laws are liberally construed
and administered in favor of the persons intended to be
benefited, and all doubts are resolved in favor of the retiree
to achieve their humanitarian purpose. (GSIS vs. DE LEON,
G.R. No. 186560, November 17, 2010)

This is a Petition for Review on Certiorari under Rule 45 of the Rules

of Court assailing the decision and resolution of the Honorable Court of
Appeals and, originally, that of the Honorable Civil Service Commission
(CSC).

1
 The petitioner has been in public service for more than 24 YEARS as
a CASINO DEALER working for PAGCOR. By way of this extra-ordinary
remedy, this petition respectfully beseeches the Honorable Supreme Court to
exercise its equity jurisdiction in order to prevent a gross and serious
injustice to the petitioner owing to the decisions of the Honorable Civil
Service Commission (CSC) (CSC Resolution no. 170640) and PAGCOR
(Administrative Case No. 2011), DISMISSING him from service for alleged
“grave misconduct” and FORFEITURE of his already approved retirement
benefits.

In brief, the Board of Directors of respondent PAGCOR unanimously

APPROVED the retirement of the petitioner on October 14, 2015. The same
took effect on November 2, 2015. On March 2, 2016, respondent PAGCOR
issued a formal charge against the petitioner for allegedly testing positive for
the use of Marijuana. In the meantime, his retirement benefit was withheld
pending the resolution of his case. On June 16, 2016, respondent PAGCOR
issued the assailed decision DISMISSING him from service for alleged
“grave misconduct” and forfeiture of his retirement benefit.

Stripped of all non-essentials, the issues of this case boil down to the
following: Procedurally, was there a violation of petitioner’s sacred right to
due process of law? Substantially, was the petitioner's alleged offense merit
the supreme penalty of dismissal and forfeiture of retirement benefits vis-à-
vis his more than 24 years of public service?

It will be shown that while the laws were stringently applied to the
petitioner, the public respondents were given a "free pass", so to speak, with
their non-observance of the very laws they swore to uphold. It is
respectfully submitted that the evidence on record unmistakably show
petitioner's dismissal from public office and forfeiture of his retirement
benefit were ILLEGAL.

Moreover, pursuant to existing CSC circular, petitioner’s alleged

infraction does not warrant the supreme penalty of dismissal.

Unfortunately, the Honorable Court of Appeals decided the matter on

PURELY TECHNICAL GROUNDS even if gross injustice will be incurred
by the petitioner. While the petitioner admits non-observance of certain
rules of procedure as found in the records, it is hoped that the High Court
will overlook this procedural missteps on the higher interest of social justice
as the substantial issues of this case as “the higher interest of substantial
justice will be better served if (the worker’s) procedural lapse will be
excused.” (CEBU BIONIC BUILDERS SUPPLY vs. DBP (G.R. No.
154366, November 17, 2010)

In connection with this, petitioner repleads and incorporates, by way

of reference, all the allegations contained in petitioner’s MEMORANDUM
2
dated April 25, 2016 submitted to respondent PAGCOR during the hearing
of the administrative case, in so far as they are material and relevant, a copy
of which attached to the Petition for Certiorari filed with the Court of
Appeals (Annex D hereof) and made an integral part of this Petition.

TIMELINESS OF THE PETITION

On August 13, 2018, the Honorable Court of Appeals (6th Division)

rendered a DECISION in CA GR. SP No. 154119 dismissing the Petition for
Certiorari dated April 25, 2016 for allegedly being filed out of time. The
aforesaid decision was received by the petitioner on August 20, 2018. The
duplicate original / certified true copy thereof is hereto attached as ANNEX
A and made an integral part hereof.

Petitioner filed a timely Motion for Reconsideration dated August 28,

2018 with the Court of Appeals. On April 12, 2019, the Court of Appeals
issued a RESOLUTION denying the motion for reconsideration. The
Resolution was received by Petitioner on April 26, 2019, giving her up to
May 14, 2019 (May 11 is a Saturday, May 13 is a regular election day) to
file a petition for review on certiorari pursuant to Rule 45 of the Rules of
Court. The duplicate original / certified true copy thereof is hereto attached
as ANNEX B and made an integral part hereof.

A copy of the Motion for Reconsideration is likewise attached hereto

as ANNEX C and the Petition for Certiorari as ANNEX D.

On May 14, 2019, petitioners filed a motion for extension with full
payment of the docket and other lawful fees, praying that they be given
another thirty (30) days from May 11, 2019 to file this petition for review.
Hence, this petition is timely filed.

The case originated from the DECISION dated November 6, 2017

issued by the Honorable Civil Service Commission which AFFIRMED the
DECISION dated June 16, 2016 issued by Crispino Nagulat, then Chairman
and Chief Executive Officer of respondent PAGCOR, finding the petitioner
guilty of Grave Misconduct and imposing upon him the supreme penalty of
dismissal from service; and RESOLUTION dated October 18, 2016,
dismissing the Motion for Reconsideration.

The Decision dated November 6, 2017 of respondent CSC, a true copy

of which is attached in the Petition for Certiorari (Annex D hereof) as
ANNEX A, was received by the petitioner on November 16, 2017. For
reasons unknown, no motion for reconsideration was filed by petitioner’s
previous counsel with the Honorable CSC. From such time until the filing
of the certiorari with the Honorable Court of Appeals, petitioner was without
any legal representation.

3
 The Decision dated June 16, 2016 of respondent PAGCOR, a true
copy of which is attached in the Petition for Certiorari as ANNEX B, was
received by the petitioner on July 14, 2016. The Resolution dated October
18, 2016 of respondent PAGCOR, a true copy of which is attached in the
Petition for Certiorari as ANNEX C, was received by the petitioner on
December 19, 2016.

THE PARTIES

PETITIONER _________ RAMOS, is a Filipino, of legal age, with

address at _____________________ where he can be served with notices,
orders and other court processes. At the time of his dismissal, he was a
regular employee of respondent PAGCOR with the position of Dealer III,
Satellite Operations Group 4.

PUBLIC RESPONDENT CSC can be served with notices, orders and

other court processes at their principal office located at CSC Building, IBP
Road, Constitution Hills, Diliman, Quezon City.

PUBLIC RESPONDENT PAGCOR can be served with notices,

orders and other court processes at their principal office located at PAGCOR
House, 1330 Roxas Boulevard, Ermita Manila. It is represented herein by
the Office of the Solicitor General, with address at 134 Amorsolo St.,
Legaspi Village, 1229 Makati City.

PUBLIC RESPONDENT COURT OF APPEALS is located at Orosa

St., Manila where it could be served with notices and other court processes.

THE FACTS

Petitioner RAMOS has been a hard-working and diligent employee of

PAGCOR since April 20, 1991, or for more than 24 years. Up until his
illegal termination on November 2, 2015, he had a good employment record
and was not involved in any serious infraction of respondent PAGCOR’s
internal rules and regulations or that of the CSC.

As he has been working for more than TWO DECADES on a

SHIFTING SCHEDULE, he has been seriously contemplating on retiring
from service due to health concerns and to spend more time with his
growing family.

According to the petitioner, while working on the GRAVEYARD

shift from 10:00 p.m. to 6:00 a.m. at the Madison Satellite Casino on
October 2, 2015, he was accosted by an internal security agent of respondent
PAGCOR who told him that he was one of the lucky employees that was
randomly chosen to undergo a “random” drug testing. When he asked why
he was being chosen, the security agent by the name of Alejandro gave no
sufficient answer and insisted that the petitioner voluntarily provide the
4
company with his urine. He informed the company that he was taking
various drugs for maintenance and supplements for body building at that
time. It turned out later that out of the hundreds of employees of PAGCOR,
only two (2) personnel were randomly tested on that day.

Personally upset and humiliated by this incident as he has gave the

best years of his life to PAGCOR, he decided that it may be time to call it
quits. Of course, this was not a trivial matter for the petitioner to decide on
as he has a family to take care of and he was the SOLE breadwinner.

Accordingly, he took a leave of absence on October 3, 2015 to discuss

with his wife and children this very important matter of retiring from
PAGCOR. Like any responsible father, he assured his wife and children not
to worry and that everything will be taken cared of as he was already eligible
for retirement, having served PAGCOR for more than 24 years.

After much deliberation and thought and after discussing the same
with his family, he formally requested PAGCOR that he be given his
retirement benefits as provided under the company’s unique retirement plan.
Had the petitioner not eligible for retirement, he would have not retired.

Thus, the petitioner prepared two (2) LETTERS, BOTH dated

October 4, 2015 -- a letter of resignation which is a condition precedent for
his availment of the retirement benefits due to him; and a letter for his
terminal leave, stating that:

I would like to avail my 30 days accumulated leave of

absence effective October 5 to November 03, 2015 prior to my
EARLY RETIREMENT. (Emphasis ours.)

Both letters were personally handed by the petitioner to respondent

PAGCOR on October 5, 2015. On the SAME DATE while he was at the
respondent’s office, the petitioner accomplished the ‘REQUEST FOR
RESIGNATION / RETIREMENT” form of respondent PAGCOR.

Copies of the LETTERS and the ‘REQUEST FOR RESIGNATION /

RETIREMENT” are attached in his Petition for Certiorari (Annex D hereof)
as ANNEXES D, D1 and D2 respectively.

On October 16, 2015, in a LETTER duly issued by respondent

PAGCOR and addressed to the petitioner, the BOARD OF DIRECTORS,
the highest governing body of PAGCOR, duly APPROVED petitioner’s
request for retirement during a board meeting held last October 14, 2015.
As stated in the letter:

We would like to inform you that the Board of

Directors in its meeting on October 14, 2015,

5
 APPROVED YOUR RETIREMENT (Rule of 70) as
Dealer III, Satellite Operations Group 4, effective at the
close of office hours on November 2, 2015. (Emphasis
ours.)

Pursuant to the board resolution of PAGCOR’s Board of Directors

which approved petitioner’s retirement, a “MEMORANDUM” dated
October 16, 2015 was issued to “all concerned” officers of PAGCOR,
stating that the petitioner was:

“entitled to full retirement benefits under the Modified

PAGCOR Retirement/Separation Benefit Plan”.

A copy of the LETTER and MEMORANDUM duly issued by

PAGCOR is attached to the Petition for Certiorari as ANNEXES E and E1,
respectively.

This fact is ADMITTED by respondent PAGCOR in its Decision

(supra) dated June 16, 2015:

xxx on October 05, 2015, Dealer RAMOS filed his Letter

of Retirement dated October 04, 2015 and filed Request for
Resignation. As there was no results yet of his drug test, his
request was APPROVED BY THE BOARD on October 14,
2015 effective “close of office hours on November 2,
2015.”(emphasis ours.)

Petitioner complied with all the requirements of PAGCOR for the

release of his retirement benefit. While waiting for the release thereof, the
petitioner and his family went on a much deserved and long overdue family
vacation.

After returning home, the petitioner followed-up the release of his

retirement benefit with PAGCOR in a LETTER dated December 22, 2015, a
copy of which is attached in the Petition for Certiorari as ANNEX F. He
was informed by PAGCOR that his request was already forwarded to the
Corporate and Legal Services Department per letter dated January 6, 2016,
copy of which is attached in the Petition for Certiorari as ANNEX G. The
petitioner assumed the same was merely part of the process for the release of
his benefits and did not give the same further thought.

Unbeknownst to the petitioner, apparently a “SHOW CAUSE

MEMORANDUM” dated November 2, 2015 was issued by a certain
“security officer” detailed at PAGCOR’s Satellite Operation Group 4 by the
name of Aurelio Alejandrino, alleging that the petitioner’s urine tested
positive for the presence of a dangerous drug, and ordering him “to submit a
Counter-Affidavit / Comment under oath within seventy-two (72) hours upon

6
receipt thereof” A copy thereof is attached in the Petition for Certiorari as
ANNEX H.

The said memorandum was allegedly sent to the petitioner on the

same date, but as admitted by the security officer of PAGCOR per
memorandum also dated November 2, 2015 (a copy of which is attached in
the Petition for Certiorari as ANNEX H-1), the show cause memorandum
was not personally served to the petitioner as he was on vacation with his
family at that time.

It was only on January 20, 2016 that the petitioner officially learned
of the show-cause memorandum when he followed-up on the release of his
retirement benefit. He was horrified when he was informed that his urine
allegedly tested positive for the presence of marijuana, a drug that is legal in
many developed countries.

Eager to know the truth, he immediately went to PAGCOR to

personally receive the memorandum on January 21, 2016. This was the first
time he officially learned of the memorandum.

Immediately thereafter, the petitioner gave his SWORN

STATEMENT dated January 26, 2016, a copy of which is attached in the
Petition for Certiorari as ANNEX H (should be “ANNEX H-2”), vehemently
denying that he was a drug user by stating that:

“xxx I have never used such a substance there must be a

big mistake or maybe the urine is not mine xxx”

Wanting to clear his name and to prove his innocence, he immediately

subjected himself in good faith to a drug test conducted by an independent
and government-certified drug testing clinic, the results thereof tested
NEGATIVE for any illegal drug use. Copy of the “Drug Test Report”
conducted by MEDICAL CITY on January 28, 2016 is attached in the
Petition for Certiorari as ANNEX I.

It was only on March 8, 2016, or more than four months after the
approval of his retirement by PAGCOR’s Board of Directors, that the
petitioner received a copy of the “FORMAL CHARGE” dated March 2,
2016, signed by PAGCOR Chairman Nagulat, formally charging the
petitioner of “GRAVE MISCONDUCT” with the “IMPOSSIBLE
CORRECTIVE ACTION” of “DISMISSAL”, and requiring him to submit
an Answer under oath within three to five days.

After the conduct of preliminary and formal hearings, on July 14,

2016, the petitioner received a copy of the assailed Decision of respondent
PAGCOR dated June 16, 2016, finding the petitioner “GUILTY of Grave
Misconduct and is accordingly penalized with Dismissal from the Service.”

7
 (a certified true copy of which is attached to the original Petition for
Certiorari as ANNEX B).

His timely Motion for Reconsideration was likewise denied by

PAGCOR per Resolution dated October 18, 2016 which was received by
the petitioner on December 19, 2016 (a certified true copy of which is
attached to the original Petition for Certiorari as ANNEX C while a copy of
the motion is attached in the Petition for Certiorari as ANNEX J).

Upon denial of his motion, the petitioner timely filed a Memorandum

of Appeal with the Honorable CSC on January 3, 2017, a copy of which is
attached in the Petition for Certiorari as ANNEX K.

Thereafter, respondent CSC issued a Decision dated November 6,

2017, affirming the decision of respondent PAGCOR, the dispositive portion
of which states that:

the Appeal xxx is hereby DISMISSED. Accordingly, the

Decision dated June 16, 2016 xxx is AFFIRMED with the
clarification that the accessory penalties of cancelation of
eligibility xxx and FORFEITURE OF RETIREMENT
BENEFITS ARE LIKEWISE IMPOSED. However,
terminal/accrued leave benefits and personal contributions to
the xxx (GSIS), if any, shall not be subject to forfeiture.”
(Emphasis ours.)

The Decision of respondent CSC was received by the petitioner on

November 16, 2017 (a certified true copy of which is attached to the original
Petition for Certiorari as ANNEX A).

For reasons unknown, no motion for reconsideration was filed by

petitioner’s previous counsel with the Honorable CSC. Intending to elevate
his cause to the higher authorities, the petitioner, BY HIMSELF, filed with
the Honorable Court a “MOTION FOR EXTENSION OF TIME TO FILE
APPEAL BY CERTIORARI” on January 15, 2018 which is within the 60-
day period for filing a petition for certiorari counted from his receipt of the
decision of respondent CSC.

As will be shown herein, it is humbly submitted that the decisions of

the public respondents is "LEGALLY ERRONEOUS," "PATENTLY
UNJUST" and has caused “UNWARRANTED AND IRREMEDIABLE
INJURY OR DAMAGE” to herein petitioner. Petitioner, who has dedicated
24 years of his life to public service, was unlawfully denied of his right to
his retirement benefit enjoyed exclusively by PAGCOR employees which
was already approved by the PAGCOR’s Board of Directors. AS THE
SAME WAS ALREADY APPROVED, THIS CONSTITUTES A VESTED
RIGHT UPON THE PETITIONER WHICH RESPONDENT PAGCOR NO
LONGER HAS THE RIGHT TO WITHHOLD.
8
 Considering the mandatory salary deductions from the
government employee, the government pensions do not
constitute mere gratuity but form part of compensation.

In a pension plan where employee participation is

mandatory, the prevailing view is that employees have
contractual or vested rights in the pension where the pension is
part of the terms of employment. xxx (see GSIS, Cebu City
Branch v. MONTESCLAROS, 478 Phil. 573 (2004).

And as stated earlier, the Honorable Court of Appeals dismissed the

petition for certiorari for allegedly being filed out of time in its Decision
dated August 13, 2018.

His motion for reconsideration was likewise denied. In its Resolution

dated April 12, 2019, the Honorable Court ruled that:

Herein, petitioner availed of a wrong mode of appeal, a

Petition for Certiorari, instead of Petition for Review under
Section 5, Rule 43 of the Rules. xxx

Even if we allow a liberal construction of the Rules and

consider the instant Petition to one under Rule 65 thereof, the
same must still fail.

Firstly, petitioner filed the Petition beyond the sixty (60)

day period from notice of the assailed Decision xxx.

Secondly, petitioner admittedly failed to comply with the

requirement of a prior motion for reconsideration. Xxx

To be sure, the appeal being filed out of time, it has

rendered the subject Decision final and executory - xxx

From the foregoing, it is respectfully submitted that SERIOUS

ERRORS were made by the public respondents which caused grave and
irreparable damage and injury to petitioner, particularly the FORFEITURE
OF HIS APPROVED RETIREMENT BENEFIT. Hence, this petition.

THE ERRORS

1. COMPELLING REASONS EXIST TO JUSTIFY LIBERAL

APPLICATION OF THE RULES OF PROCEDURE

2. IT WAS THE HEIGHT OF INJUSTICE TO FORFEIT THE

APPROVED RETIREMENT BENEFIT BY THE SIMPLE
EXPEDIENCY OF DISMISSING THE PETITIONER
9
 THE ARGUMENTS

THE CASE SHOULD BE DECIDED ON ITS MERITS

AND NOT MERELY ON TECHNICAL GROUNDS
AS COMPELLING REASONS EXIST TO JUSTIFY
LIBERAL APPLICATION OF THE RULES

“The emerging trend in the rulings of this Court is to afford

every party litigant the amplest opportunity for the proper and
just determination of his cause, free from the constraints of
technicalities. Time and again, this Court has consistently held
that rules must not be applied rigidly so as not to override
substantial justice.” (ESTIPONA vs. LOBRIGO, EN BANC,
G.R. No. 226679, August 15, 2017)

In the assailed Decision of the Honorable Court of Appeals, it was

ruled that:

The amendment introduced by A.M. No. 07-7-12-SC in

Section 4, Rule 65 of the Rules of Court simply meant that there
can no longer be any extension of the 60-day period within
which to file a petition for certiorari. Accordingly, the motion
for extension of time to file appeal by certiorari is DENIED and
instant case is DISMISSED for failure to file the petition with
the reglementary period of sixty (60) days.

The aforesaid ruling was based on the doctrine enunciated by the

Honorable Supreme Court in the case of Laguna Metts Corp. vs. Court of
Appeals (July 27, 2009).

It is submitted that the foregoing doctrine has already been

ABANDONED by the Supreme Court. The current ruling on the matter is
the 2014 case of THENAMARIS vs. COURT OF APPEALS (G.R. No.
191215, February 3, 2014) where the High Court ruled unequivocally that
“MOTIONS FOR EXTENSION ARE ALLOWED” in petitions for
certiorari under Rule 65.

According to the Supreme Court, the 60-day period provided under

Rule 65 may be EXTENDED subject to the sound discretion of the court.
Thus:

There is merit in the petition.

10
 In Republic v. St. Vincent de Paul Colleges, Inc. we had
the occasion to settle the seeming conflict on various
jurisprudence touching upon the issue of whether the period for
filing a petition for certiorari may be extended. In said case we
stated that the general rule, as laid down in Laguna Metts
Corporation v. Court of Appeals, is that a petition for certiorari
must be filed strictly within 60 days from notice of judgment or
from the order denying a motion for reconsideration. This is in
accordance with the amendment introduced by A.M. No. 07-7-
12-SC where no provision for the filing of a motion for
extension to file a petition for certiorari exists, unlike in the
original Section 4 of Rule 65 which allowed the filing of such a
motion but only for compelling reason and in no case exceeding
15 days. Under exceptional cases, however, and as held in
Domdom v. Third and Fifth Divisions of the Sandiganbayan,
THE 60-DAY PERIOD MAY BE EXTENDED SUBJECT TO
THE COURT’S SOUND DISCRETION. In Domdom, we
stated that the deletion of the provisions in Rule 65 pertaining
to extension of time did not make the filing of such pleading
absolutely prohibited. "If such were the intention, the deleted
portion could just have simply been reworded to state that ‘no
extension of time to file the petition shall be granted.’ Absent
such a prohibition, MOTIONS FOR EXTENSION ARE
ALLOWED, subject to the court’s sound discretion."
(Emphasis ours.)

It must be pointed out that at the time the petitioner filed his
“MOTION FOR EXTENSION OF TIME TO FILE APPEAL BY
CERTIORARI” on January 15, 2018, he was no longer represented by a
counsel. He filed the motion by himself within the 60-day period provided
under Rule 65 after fully paying the docket and other fees.

Thereafter, within the extension of time as prayed for by the petitioner

in his motion, he was able to file his Petition for Certiorari through the
undersigned counsel. Moreover, his LACK OF LEGAL
REPRESENTATION at the time he filed the motion for extension should be
considered “a reasonable or meritorious explanation” for his inability to file
the petition within the 60-day period.

As the petitioner is seeking justice for the unjust forfeiture of his

retirement benefit, the present petition cannot be considered as “merely
frivolous and dilatory”.

The Court of Appeals also took notice of the failure of the petitioner
to file a motion for reconsideration with the CSC. In the case of CEBU
BIONIC BUILDERS SUPPLY vs. DBP (G.R. No. 154366, November 17,
2010), the High Court ruled that:

11
 Indeed, the appellate court’s Decision dated February 14,
2001 would have ordinarily attained finality for failure of
respondents to seasonably file their Motion for Reconsideration
thereon. However, we agree with the Court of Appeals that the
higher interest of substantial justice will be better served if
respondents’ procedural lapse will be excused.

Verily, we had occasion to apply this liberality in the

application of procedural rules in Barnes v. Padilla where we
aptly declared that –

The failure of the petitioner to file his motion for

reconsideration within the period fixed by law renders
the decision final and executory. Such failure carries with
it the result that no court can exercise appellate
jurisdiction to review the case. Phrased elsewise, a final
and executory judgment can no longer be attacked by any
of the parties or be modified, directly or indirectly, even
by the highest court of the land.

However, this Court has relaxed this rule in order

to serve substantial justice considering (a) matters of life,
liberty, honor or property, (b) the existence of special or
compelling circumstances, (c) the merits of the case, (d) a
cause not entirely attributable to the fault or negligence
of the party favored by the suspension of the rules, (e) a
lack of any showing that the review sought is merely
frivolous and dilatory, and (f) the other party will not be
unjustly prejudiced thereby.

Again, the circumstances surrounding this case calls for a relaxation

on said rule as this involves the vested right of a public employee to his
retirement benefit.

Finally, in the assailed resolutions, the Honorable Court of Appeals

likewise ruled that “Herein, petitioner availed of a wrong mode of appeal, a
Petition for Certiorari, instead of Petition for Review under Section 5, Rule
43 of the Rules. xxx”

While it is true that the rules require the petitioner to file a petition for
review instead of a petition for certiorari, the circumstances surrounding
petitioner’s dismissal from service and forfeiture of his retirement benefits
are compelling reasons to justify relaxation of the rules.

Petitioner respectfully submits that a strict application of the rules of

procedure has already been abandoned by the High Court as the “emerging
trend of jurisprudence, after all, is more inclined to the liberal and flexible

12
application of procedural rules.” (GONZALES v. SERRANO, G.R. No.
175433, March 11, 2015)

Indeed, the emerging trend in the rulings of this Court is

to afford every party litigant the amplest opportunity for the
proper and just determination of his cause, free from the
constraints of technicalities. (GARCIA vs. COURT OF
APPEALS, G.R. No. 169005, January 28, 2013)

The Honorable Court of Appeals, in view of the visible emerging

trend in our jurisprudence, should have relaxed the rules motu propio and
ruled on the SUBSTANTIVE issues raised in the petitioner’s motion,
instead of simply brushing aside the same on technical grounds which is
usually the most expedient way of settling the issues at hand

In a 2014 case, the High Court reiterated the ruling that “the dismissal
of an employee’s appeal on purely technical ground is inconsistent with the
constitutional mandate on protection to labor.” Thus:

Under Article 221 (now Article 227) of the Labor Code,

"the Commission and its members and the Labor Arbiters shall
use every and all reasonable means to ascertain the facts in each
case speedily and objectively and without regard to
technicalities of law or procedure, all in the interest of due
process." Consistently, we have emphasized that "rules of
procedure are mere tools designed to facilitate the attainment of
justice. A strict and rigid application which would result in
technicalities that tend to frustrate rather than promote
substantial justice should not be allowed x x x. No procedural
rule is sacrosanct if such shall result in subverting justice."
Ultimately, what should guide judicial action is that a party is
given the fullest opportunity to establish the merits of his action
or defense rather than for him to lose life, honor, or property on
mere technicalities.

Then, too, we should remember that "THE DISMISSAL

OF AN EMPLOYEE’S APPEAL ON PURELY TECHNICAL
GROUND IS INCONSISTENT WITH THE
CONSTITUTIONAL MANDATE ON PROTECTION TO
LABOR." Under the Constitution and the Labor Code, the State
is bound to protect labor and assure the rights of workers to
security of tenure – tenurial security being a preferred
constitutional right that, under these fundamental guidelines,
technical infirmities in labor pleadings cannot defeat.
(DIAMOND TAXI vs. LLAMAS, G.R. No. 190724, March 12,
2014)
.

13
 Such ruling is a mere reiteration of the WELL SETTLED DOCTRINE
enunciated by the High Court, most recently in a 2017 EN BANC decision:

Let it be emphasized that the rules of procedure should be

viewed as mere tools designed to facilitate the attainment of
justice. Their strict and rigid application, which would result in
technicalities that tend to frustrate rather than promote
substantial justice, must always be eschewed. Even the Rules of
Court reflect this principle. The power to suspend or even
disregard rules can be so pervasive and compelling as to alter
even that which this Court itself has already declared to be final,
x x x.

The emerging trend in the rulings of this Court is to

afford every party litigant the amplest opportunity for the
proper and just determination of his cause, free from the
constraints of technicalities. Time and again, this Court has
consistently held that rules must not be applied rigidly so as not
to override substantial justice. (ESTIPONA vs. LOBRIGO, EN
BANC, G.R. No. 226679, August 15, 2017)

As early as 2007, in GLICERIA SARMIENTO vs. EMERITA

ZARATAN (G.R. No. 167471, February 5, 2007), the High Court made the
following pronouncement that “The visible emerging trend is to afford every
party-litigant the amplest opportunity for the proper and just determination
of his cause, free from constraints and technicalities.”

In the EN BANC case of MCBURNIE vs. GANZON (G.R. Nos.

178034, 178117, 186984-85, October 17, 2013), the High Court set aside a
decision that has already become FINAL and EXECUTORY since 2008 by
giving due course to a THIRD MOTION FOR RECONSIDERATION,
arguing that “Again, the emerging trend in our jurisprudence is to afford
every party-litigant the amplest opportunity for the proper and just
determination of his cause, free from the constraints of technicalities.” In
the said case, the High Court held that procedural rules may be relaxed "in
the higher interest of substantial justice," when the assailed decision is
"legally erroneous," "patently unjust" and "potentially capable of causing
unwarranted and irremediable injury or damage to the parties." As
explained by the High Court:

The rules of procedure should be viewed as mere tools

designed to facilitate the attainment of justice. Their strict and
rigid application, which would result in technicalities that tend
to frustrate rather than promote substantial justice, must always
be avoided. Even the Rules of Court envision this liberality.
This power to suspend or even disregard the rules can be so
pervasive and encompassing so as to alter even that which this

14
 Court itself has already declared to be final, as we are now
compelled to do in this case. x x x.

These cases, while mostly involving an employer-employee

relationship, should EQUALLY APPLY in the present case in view of the
unique nature of the relationship between the petitioner as a CASINO
DEALER and PAGCOR.

In the cases where the High Court has relaxed the rules on appeal,
whether the same is for the benefit of the employee and employer, it took
into consideration mainly the substantial merits of the appealed cases in
giving due course to the appeal. “While it is true that the Court may deviate
from the foregoing rule, this is true only if the appeal is meritorious on its
face” (PNB VS. CIR, G.R. NO. 172458, DECEMBER 14, 2011)

SUCH IS THE PRESENT PETITION. The demands of substantial

justice vis-à-vis the circumstances surrounding petitioner’s dismissal and the
eventual forfeiture of his already approved retirement benefit are “weighty
reasons” for the liberal application of the rules. As will be shown herein,
compelling reasons justify the relaxation of the rules owing to the
peculiarities of this case.

“In numerous cases, the Court has allowed liberal

construction of the Rules of Court with respect to the rules on
the manner and periods for perfecting appeals, when to do so
would serve the demands of substantial justice and in the
exercise of equity jurisdiction of the Supreme Court. Indeed,
laws and rules should be interpreted and applied not in a
vacuum or in isolated abstraction but in light of surrounding
circumstances and attendant facts in order to afford justice to
all. Thus, where a decision may be made to rest on informed
judgment rather than rigid rules, the equities of the case must be
accorded their due weight because labor determinations should
not only be secundum rationem but also secundum caritatem.
(GRAND PLACEMENT vs. COURT OF APPEALS, G.R. NO.
142358, January 31, 2006)

Finally, it is respectfully submitted that the decisions of the public

respondents are VOID for being contrary to law. As will be discussed
herein, petitioner’s retirement benefit was already approved by PAGCOR’s
Board when he was dismissed. More importantly, CSC’s own present laws
do NOT allow automatic or summary dismissal of public employees who
were found positive after a “random” drug test.

The current “Guidelines in the Mandatory Random Drug Test for

Public Officials and Employees and for Other Purposes”, issued via public
respondent via CSC Resolution No. 1700653 which took effect on 18 April
2017, provided that any public official or employee found positive for drug
15
use at the first instance shall be required to undergo a mandatory
rehabilitation or counseling program depending on the severity of drug use.
Only those who refuse to undergo such or fail to complete the rehabilitation
program shall be formally charged with the administrative offense of Grave
Misconduct. The same should be applied retroactively pursuant to the
generally accepted principle that laws which are PENAL in nature shall be
given a retroactive effect insofar as they favor the person guilty of a felony.

In contemplation of law, a void decision is deemed non-existent. Such

judgment or order may be resisted in ANY ACTION. (NAZARENO vs.
COURT OF APPEALS, G.R. No. 111610. February 27, 2002) Thus:

A void judgment or order has no legal and binding effect,

force or efficacy for any purpose. In contemplation of law, it is
non-existent. Such judgment or order may be resisted in any
action or proceeding whenever it is involved. It is not even
necessary to take any steps to vacate or avoid a void judgment
or final order; it may simply be ignored. xxx

Accordingly, a void judgment is no judgment at all. It

cannot be the source of any right nor of any obligation. All acts
performed pursuant to it and all claims emanating from it have
no legal effect. Hence, it can never become final, and any writ
of execution based on it is void: “x x x it may be said to be a
lawless thing which can be treated as an outlaw and SLAIN AT
SIGHT, or IGNORED wherever and whenever it exhibits its
head.” (LAND BANK vs SPOUSES PLACIDO (G.R. No.
194168, February 13, 2013, emphasis ours.)

A GRAVE INJUSTICE WAS COMMITTED UPON THE

PETITIONER WHEN HE WAS DISMISSED AND HIS
APPROVED RETIREMENT BENEFIT FORFEITED

“From a valid dismissal from the government service, the

requirements of due process must be complied with.”
(PAGCOR v. Court of Appeals, G.R. No. 185668,
December 13, 2011)

Owing to the gravity of the penalty imposed on him and in view of the
Constitutional mandate that “no person shall be deprived of life, liberty and
property without due process of law”, it is submitted that faithful compliance
to the procedural aspect of due process should have been observed.

There is no question that the complaint against the petitioner was

initiated by a SHOW CAUSE MEMORANDUM dated November 2, 2015

16
which was executed and signed by one of PAGCOR' security officer. The
said memorandum was not under oath as required by law. Likewise, it is
obvious that the security officer who signed the memorandum was not
“proper disciplining authority” of the petitioner as contemplated under the
law. Under the Revised Rules on Administrative Cases in the Civil Service
(RRACCS), a disciplining authority refers to the person, tribunal or body
duly authorized to suspend, dismiss or discipline officials and employees in
the Civil Service.

In the recent case of PHILIPPINE AMUSEMENT AND GAMING

CORPORATION v. COURT OF APPEALS, (G.R. No. 185668, December
13, 2011) involving the SAME respondent, the High Court ruled that:

From a valid dismissal from the government service, the

requirements of due process must be complied with. xxx

We find no reason to deviate from the appellate court's

finding that a Senior Branch Manager is NOT AMONG THE
COMPANY'S DISCIPLINING AUTHORITY, he or she being
merely charged with the duty, among others, “to recommend
disciplinary sanctions for violations of house rules and
company policies and procedures.” (Emphasis ours.)

By the time the petitioner was formally charged by respondent

PAGCOR in March 2016 by the required “disciplining authority” which, in
this case, was then Chairman Nagulat, it was too late as the BOARD OF
DIRECTORS of respondent PAGCOR which Nagulat chairs has already
APPROVED petitioner’s retirement as early as October 14, 2015.

By that time, petitioner, under the eyes of the law, was already
considered a RETIRED public employee.

Respondent PAGCOR justifies its belated action of withholding and

thereafter forfeiting petitioner’s retirement benefit by declaring him guilty of
grave misconduct due to the results of a drug test. But the said drug test was
officially made known to him only on January 21, 2016 upon his receipt of
the SHOW CAUSE MEMORANDUM. Again, by that time, petitioner,
under the eyes of the law, was already a retired public employee as approved
by PAGCOR’s Board of Directors.

“Retirement is the result of a bilateral act of the parties, a voluntary

agreement between the employer and the employee whereby the latter, after
reaching a certain age, agrees to sever his or her employment with the
former.” (LOURDES A. CERCADO vs. UNIPROM, INC., G.R. No.
188154, October 13, 2010)

Respondent CSC has conceded in the assailed decision that retirement

laws are to be construed LIBERALLY in favor of the retiree.
17
 In the recent case of GSIS vs. FERNANDO P. DE LEON (G.R. No.
186560, November 17, 2010), the High Court explained that:

The inflexible rule in our jurisdiction is that social

legislation must be liberally construed in favor of the
beneficiaries. Retirement laws, in particular, are liberally
construed in favor of the retiree because their objective is to
provide for the retiree’s sustenance and, hopefully, even
comfort, when he no longer has the capability to earn a
livelihood. The liberal approach aims to achieve the
humanitarian purposes of the law in order that efficiency,
security, and well-being of government employees may be
enhanced. Indeed, retirement laws are liberally construed and
administered in favor of the persons intended to be benefited,
and all doubts are resolved in favor of the retiree to achieve
their humanitarian purpose. (Citing Buena Obra v. Social
Security System, 449 Phil. 200 (2003), Profeta v. Drilon, G.R.
No. 104139, December 22, 1992, 216 SCRA 777, Department
of Budget and Management v. Manila’s Finest Retirees
Association, Inc., G.R. No. 169466, May 9, 2007, 523 SCRA
90, 104, Request of Clerk of Court Tessie L. Gatmaitan, 372
Phil. 1, 7-8 (1999).)

WHAT IS THE NATURE OF SUCH RETIREMENT BENEFIT

EXTENDED TO PUBLIC EMPLOYEES?

“Considering the MANDATORY SALARY DEDUCTIONS from the

government employee, the government pensions do not constitute mere
gratuity but FORM PART OF COMPENSATION.” (see GSIS, Cebu City
Branch v. MONTESCLAROS, 478 Phil. 573 (2004, emphasis ours).

“A pension partakes of the nature of “retained wages” of the retiree

for a dual purpose: to entice competent people to enter the government
service; and to permit them to retire from the service with relative security,
not only for those who have retained their vigor, but more so for those who
have been incapacitated by illness or accident.” (GSIS vs. FERNANDO P.
DE LEON (G.R. No. 186560, November 17, 2010)

To reiterate, by the time the petitioner was formally charged of grave

misconduct in March 2016, he was already a retired government employee
as approved by PAGCOR’s Board of Directors on October 14, 2015.

PAGCOR is essentially a PRIVATE CORPORATION under the

contemplation of the law. Accordingly, pursuant to the generally accepted
principles of corporate law, all its powers can only be exercised through the
Board of Directors. Likewise, it must be noted that PAGCOR has a unique

18
and exclusive retirement plan that is not available to any other government
employee and is managed directly by PAGCOR itself.

On October 16, 2015, in a LETTER duly issued by respondent

PAGCOR and addressed to the petitioner, it was stated that:

We would like to inform you that the Board of Directors

in its meeting on October 14, 2015, APPROVED YOUR
RETIREMENT (Rule of 70) as Dealer III, Satellite Operations
Group 4, effective at the close of office hours on November 2,
2015. (Emphasis ours)

WHAT IS THE EFFECT OF SUCH APPROVAL?

In GSIS, Cebu City Branch v. MONTESCLAROS, 478 Phil. 573

(2004), the High Court explained that

In a pension plan where employee participation is

mandatory, the prevailing view is that employees have
CONTRACTUAL or VESTED RIGHTS in the pension where
the pension is part of the terms of employment. The reason for
providing retirement benefits is to compensate service to the
government. Retirement benefits to government employees are
part of emolument to encourage and retain qualified employees
in the government service. Retirement benefits to government
employees reward them for giving the best years of their lives
in the service of their country.

Thus, where the employee retires and meets the eligibility

requirements, he acquires a VESTED RIGHT to benefits that is
protected by the due process clause. Retirees enjoy a protected
property interest whenever they acquire a right to immediate
payment under pre-existing law. Thus, a pensioner acquires a
vested right to benefits that have become due as provided under
the terms of the public employees’ pension statute. xxx

Having acquired a VESTED RIGHT over his retirement benefit by

virtue of PAGCOR’s board approval of the same, it was already too late for
the public respondent to forfeit petitioner’s retirement benefit.

Accordingly, the pronouncement made by respondent CSC in the

assailed decision which required the petitioner to submit a “written
expression of intent to retire” at least 120 days prior the retirement date
pursuant to CSC MC No. 7, s. 2013 cannot be applied in the present case as
PAGCOR’s own Board of Directors have approved the retirement of the
petitioner knowing fully well when the same was filed, in effect, WAIVING
such requirement if applicable.

19
 “Indeed, retirement laws are liberally construed and administered in
favor of the persons intended to be benefited, and ALL DOUBTS ARE
RESOLVED IN FAVOR OF THE RETIREE to achieve their humanitarian
purpose.” (RE: APPLICATION FOR SURVIVORSHIP PENSION
BENEFITS OF MRS. PACITA A. GRUBA (A.M. No. 14155-Ret.,
November 19, 2013, emphasis ours.)

In its decision, respondent PAGCOR likewise try to justify its belated

actions by stating that at the time it approved the retirement of the petitioner
on October 14, 2015, it allegedly had no knowledge of the results of the drug
test which respondent PAGCOR itself conducted.

WHAT IS THE EFFECT OF SUCH IGNORANCE?

In RE: APPLICATION FOR SURVIVORSHIP PENSION

BENEFITS OF MRS. PACITA A. GRUBA (A.M. No. 14155-Ret.,
November 19, 2013), the High Court ruled that:

This Court has made similar pronouncements on other

benefits erroneously received by government employees. This
Court agreed that employees who have erroneously received
rice allowances, productivity incentive bonuses, representation
and transportation allowances (RATA), anniversary bonuses,
year-end bonuses, and cash gifts no longer need to refund the
same. The reasoning was that:

Considering, however, that all the parties here

acted in good faith, we cannot countenance the refund of
x x x benefits x x x, which amounts the petitioners have
already received. Indeed, no indicia of bad faith can be
detected under the attendant facts and circumstances. The
officials and chiefs of offices concerned disbursed such
incentive benefits in the honest belief that the amounts
given were due to the recipients and the latter accepted
the same with gratitude, confident that they richly
deserve such benefits.

In the present case, respondent PAGCOR portrayed the petitioner as a

scheming person who wanted to deceive the government into giving him his
retirement pay.

First of all, it is through the efforts of the likes of the petitioner who
worked on graveyard shifts in order for the government to earn badly needed
funds to use for public purposes. As a CASINO DEALER for more than 24
years, the petitioner has helped the government earn millions of pesos in
income. Secondly, the petitioner is a diligent employee with a very good
employment record spanning more than 24 years. This was his FIRST
TIME to be accused of a grave offense.
20
 Finally, the petitioner cannot be considered to have acted in bad faith
on the mere fact that he applied for retirement after the “random” drug test.
Could it be the fact that the petitioner has long been eligible for retirement
under PAGCOR’s unique retirement plan and after serving the company for
the last 24 years, reasons enough to go on retirement?

The proven fact that he was horrified to find out that his retirement
benefit was being withheld for alleged drug use; the fact that he immediately
went to PAGCOR’s office to personally receive the SHOW CAUSE
MEMORANDUM, the fact that he immediately gave his answer to the
memorandum vehemently denying use of any illegal drugs; the fact that he
immediately subjected himself to a drug test through an independent and
government-accredited clinic which yielded NEGATIVE result for any
illegal drug; the fact that he vigorously opposed the malicious accusations
against him; the fact that he personally received the Formal Charge against
him and participated in the trial of the case by personally attending the
hearings with counsel of choice -- all points to petitioner’s good faith and
innocence.

PAGCOR was wrong to say that the complainant did not challenge
the veracity of the results of his drug test. He denied and questioned it right
from the start as evidence by his Sworn Statement to the SHOW CAUSE
MEMORANDUM.

The Court should take judicial notice of the fact that a drug test is not
an exact science and it is common to get a false positive result. (“A study led
by director of the Adolescent Substance Abuse Program at Children's Hospital
Boston, xxx examined recent drug tests of teenagers being treated for substance
abuse. Of 710 drug tests performed, 85 gave incorrect results, either because the
urine sample was too dilute to interpret properly, or because the test picked up
prescription medicines”. Likewise, it was “found that a surprisingly large number
of common substances generated false positive results for the presence of drugs.
"While testing the specificity of the KN Reagent test kits with 42 non-marijuana
substances, I observed that 70% of these tests rendered a false positive," see
https:// stopthedrugwar.org)

At any rate, the NEGATIVE result in his drug test conducted by

Medical City, an independent and government-certified drug testing clinic,
should also be given weight.

The Supreme Court has recently ruled in a labor case that “While the
adoption and enforcement by petitioner corporation of its Anti-Drugs Policy
is recognized as a valid exercise of its management prerogative as an
employer, such exercise is not absolute and unbridled. Managerial
prerogatives are subject to limitations provided by law, collective bargaining
agreements, and the general principles of fair play and justice. In the
exercise of its management prerogative, an employer must therefore ensure

21
that the policies, rules and regulations on work-related activities of the
employees must always be fair and reasonable and the corresponding
penalties, when prescribed, commensurate to the offense involved and to the
degree of the infraction.” (MIRANT vs. CARO, G.R. No. 181490, April 23,
2014, emphasis ours.)

Just like the rule in retirement laws, labor laws are to be liberally
construed in favor of the working man. The High Court has decreed that in
labor cases, ALL DOUBTS should be ruled in favor of the working man,
including doubts pertaining to the evidence presented by the parties. (see
LIRIO vs. GENOVIA, G.R. No. 169757, November 23, 2011)

In JHORIZALDY UY vs. ENTRO CERAMICA CORPORATION

(G.R. No. 174631, October 19, 2011), the High Court declared that “When
there is no showing of a clear, valid and legal cause for the termination of
employment, the law considers it a case of illegal dismissal. Furthermore,
Article 4 of the Labor Code expresses the basic principle that all doubts in
the interpretation and implementation of the Labor Code should be
interpreted in favor of the workingman. This principle has been extended by
jurisprudence to cover doubts in the evidence presented by the employer and
the employee. Thus WE HAVE HELD THAT IF THE EVIDENCE
PRESENTED BY THE EMPLOYER AND THE EMPLOYEE ARE IN
EQUIPOISE, THE SCALES OF JUSTICE MUST BE TILTED IN FAVOR
OF THE LATTER. (Emphasis ours.)

These cases should be applied by ANALOGY to the present petition

owing to the unique relationship between PAGCOR and the petitioner as a
casino dealer. From the foregoing, it was erroneous for the public
respondents to declare the petitioner guilty of grave misconduct.

WHAT IS THE EFFECT OF FORFEITURE OF PETITIONER’S

RETIREMENT BENEFITS?

Since, according to the High Court, a public employee’s pension

partakes of the nature of a “MANDATORY SALARY DEDUCTION” and
not a “mere gratuity but form part of compensation.” (see GSIS, Cebu City
Branch v. MONTESCLAROS, 478 Phil. 573, 2004), it is respectfully
submitted that such forfeiture by respondent PAGCOR constituted an
UNJUST TAKING OF PETITIONER’S ALREADY EARNED SALARIES.

Be that as it may, even assuming for the sake of argument that the
petitioner was guilty of the offense charged, the supreme penalty of
dismissal is NOT commensurate owing to the PECULIAR
CIRCUMSTANCES of this case, his LENGTH of service and his
DEDICATION to his work. Again, it must be emphasized that the
Constitutional right to security of tenure extends to government employees.
(See Civil Service Commission vs. Minerva M.P. Pacheco, G.R. No.
178021, January 31, 2011.)
22
 As ruled by the Supreme Court in the recent case of SAGALES vs.
RUSTAN’S COMMERCIAL CORPORATION (G.R. No. 166554,
November 27, 2008), citing MANY CASES:

In this regard, it is a HORNBOOK doctrine that

infractions committed by an employee should merit only the
corresponding penalty demanded by the circumstance. The
penalty must be commensurate with the act, conduct or
omission imputed to the employee and must be imposed in
connection with the disciplinary authority of the employer.

For example, in Farrol v. Court of Appeals, the

employee, who was a district manager of a bank, incurred a
shortage of P50,985.37. He was dismissed although the funds
were used to pay the retirement benefits of five employees of
the bank. The employee was also able to return the amount,
leaving a balance of only P6,995.37 of the shortage. The bank
argued that under its rules, the penalty for the infraction of the
employee is dismissal. The Court disagreed and held that the
penalty of dismissal is too harsh. The Court took note that it is
the first infraction of the employee and that he has rendered
twenty-four (24) long years of service to the bank. In the words
of Mme. Justice Consuelo Ynares-Santiago, “the dismissal
imposed on petitioner is unduly harsh and grossly
disproportionate to the infraction which led to the termination
of his services. A lighter penalty would have been more just, if
not humane.”

So too did the Court pronounce in Felix v. National

Labor Relations Commission, Gutierrez v. Singer Sewing
Machine Company, Associated Labor Unions-TUCP v.
National Labor Relations Commission, Dela Cruz v. National
Labor Relations Commission, Philippine Long Distance
Telephone Company v. Tolentino, Hongkong and Shanghai
Banking Corporation v. National Labor Relations Commission,
Permex, Inc. v. National Labor Relations Commission, VH
Manufacturing, Inc. v. National Labor Relations Commission,
A’ Prime Security Services, Inc. v. National Labor Relations
Commission, and St. Michael’s Institute v. Santos. xxx

Word of caution.

We do not condone dishonesty. After all, honesty is the

best policy. However, punishment should be commensurate
with the offense committed. THE SUPREME PENALTY OF
DISMISSAL IS THE DEATH PENALTY TO THE
WORKING MAN. Thus, care should be exercised by
23
 employers in imposing dismissal to erring employees. The
penalty of dismissal should be availed of as a last resort.

Indeed, the immortal words of Mr. Justice (later Chief

Justice) Enrique Fernando ring true then as they do now:

“where a penalty less punitive would suffice,

whatever missteps may be committed by labor ought not
be visited with a consequence so severe. It is not only
because of the law’s concern for the workingman. There
is, in addition, his family to consider. Unemployment
brings untold hardships and sorrows on those dependent
on the wage-earner.” (Emphasis ours, citations omitted.)

The said ruling was reiterated in the case of CAVITE APPAREL vs.
MICHELLE MARQUEZ, G.R. No. 172044, February 06, 2013 where the
High Court ruled that::

As a final point, we reiterate that while we recognize

management’s prerogative to discipline its employees, the
exercise of this prerogative should at all times be reasonable
and should be tempered with compassion and understanding.
Dismissal is the ultimate penalty that can be imposed on an
employee. Where a penalty less punitive may suffice, whatever
missteps may be committed by labor ought not to be visited
with a consequence so severe for what is at stake is not merely
the employee’s position but his very livelihood and perhaps the
life and subsistence of his family.

FINALLY, DOES THE LAW ALLOW IMMEDIATE

TERMINATION OR DISMISSAL OF PUBLIC OFFICERS OR
EMPLOYEES IF THEY HAVE BEEN FOUND POSITIVE IN A
RANDOM DRUG TEST?

The answer is in the NEGATIVE.

To reiterate, CSC’s present circulars do not allow immediate dismissal

of public officers or employees on such ground. For the perusal of the
Honorable Court, attached as ANNEX E is copy of Memorandum Circular
No. 13 Series of 2017 entitled “GUIDELINES IN THE MANDATORY
RANDOM DRUG TEST FOR PUBLIC OFFICIALS AND EMPLOYEES
AND FOR OTHER PURPOSES” issued by the Civil Service Commission
pursuant to CSC Resolution No. 1700653 dated MARCH 15, 2017.

In CSC’s press release dated May 14, 2019 as found in their official
website, the Honorable Commission explained the guidelines as follows:

24
“CSC ISSUES EXEMPTIONS ON MANDATORY RANDOM
DRUG TEST”

The Civil Service Commission (CSC) recently amended the

policy on mandatory random drug testing in the civil service to
specify exemptions.

The Guidelines in the Mandatory Random Drug Test for Public

Officials and Employees and for Other Purposes, issued via
CSC Resolution No. 1700653 and taking effect on 18 April
2017, provided that any public official or employee FOUND
POSITIVE FOR DRUG USE at the FIRST INSTANCE shall be
required to undergo a MANDATORY REHABILITATION OR
COUNSELING PROGRAM depending on the severity of drug
use. Those who REFUSE to undergo such or fail to complete
the rehabilitation program shall be formally charged with the
administrative offense of Grave Misconduct.

Meanwhile, the Dangerous Drugs Board (DDB) issued DDB

Regulation No. 13, s. 2018 on 30 August 2018, which provides
that public officials and employees found positive for drug use
at first instance shall be subjected to
disciplinary/administrative proceedings with a penalty of
dismissal from the service.

To ensure proper implementation of these two issuances, the

Commission emphasized via CSC Resolution No. 1900238
dated 8 March 2019 that CSC Resolution No. 1700653 shall
remain as the general policy on the conduct of mandatory
random drug testing for public officials and employees, while
DDB Resolution No. 13, s. 2018 shall only be adopted by
government agencies who are exempted from the coverage of
CSC Resolution No. 1700653.

Further, the Commission specified that officers and members of

the military, police, and other law enforcement agencies are
exempted from CSC’s policy and shall be subjected to DDB
Regulation No. 13, s. 2018. Elective officials and presidential
appointees are also exempted from CSC’s policy on mandatory
random drug testing.

Law enforcement agencies, with respect to their non-uniformed

personnel, and other government agencies mandated by law to
lead in the implementation of the anti-drug campaign and
programs of the government may file a petition with the CSC
for exemption from the provisions of CSC Resolution No.
1700653 and to adopt DDB Regulation No. 13, s. 2018.

25
 Procedures for filing of exemptions are also specified in CSC
Resolution No. 1900238. The resolution was published on the
Philippine Star on 5 May 2019 and shall take effect fifteen (15)
days after. (see http://www.csc.gov.ph/new-updates/1743-csc-
issues-exemptions-on-mandatory-random-drug-test.html)

The CSC’s own laws are clear. Only those “public official or
employee found positive for drug use at the first instance shall be required to
undergo a mandatory rehabilitation or counseling program depending on the
severity of drug use. Those who refuse to undergo such or fail to complete
the rehabilitation program shall be formally charged with the administrative
offense of Grave Misconduct.”

While these are current laws on the matter, the same should be applied
RETROACTIVELY pursuant to the generally accepted principle that laws
which are penal in nature shall have a retroactive effect insofar as they
favorable to the person guilty of a felony. More so since the present
circular provides explicitly that any “orders, instructions, and circulars
inconsistent with these guidelines shall be deemed accordingly repealed.”
(Article X)

In closing, the High Court has explained that:

“We should remember, too, that certain labor rights

assume preferred positions in our legal hierarchy. Under the
Constitution and the Labor Code, the State is bound to protect
labor and assure the rights of workers to security of tenure.
Article 4 of the Labor Code provides that all doubts in the
implementation and interpretation of its provisions (including
its implementing rules and regulations) shall be resolved in
favor of labor. The Constitution, on the other hand,
characterizes labor as a primary social economic force. The
State is bound to protect the rights of workers and promote their
welfare, and the workers are entitled to security of tenure,
humane conditions of work, and a living wage. Under these
fundamental guidelines, (the workers’) right to security of
tenure is a preferred constitutional right that technical
infirmities in labor pleadings cannot defeat.” (SPIC N SPAN
vs. GLORIA PAJE, G.R. No. 174084, August 25, 2010)

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of the

Honorable Supreme Court to reverse and set aside the assailed decisions and
resolutions of the public respondents for being void as the same were issued
with grave abuse of discretion amounting to lack or excess of jurisdiction,
and thereafter, to render judgment in favor of the petitioner, as follows:

26
 1. To declare the dismissal of the petitioner as illegal;
2. To order the release of the retirement and other benefits due
to the petitioner;
3. To hold the private respondents liable for moral and
exemplary damages plus attorney’s fees.

Lex deficere non potest in justitia exhibenda. Other remedies which

are just and equitable under the circumstances are likewise prayed for.

Respectfully submitted, June ____, 2019.

ATTY. PERICLEO L. SOLIS, JR.

120 Manila Times, Las Piñas City 1740, Metro Manila
[email protected] / Tel. no. 8722869
Roll No. 40311 / IBP LM No. 014000 6-24-15 QC
PTR No.11713890-J 2-6-19 LPC / MCLE No. VI - 0004489 10-23-17

COPY FURNISHED:

THE COURT OF APPEALS

MARIA OROSA ST., ERMITA, MANILA

CIVIL SERVICE COMMISSION

CSC Building, IBP Road, Constitution Hills, Diliman, Quezon City.

THE CHAIRMAN, PHILIPPINE AMUSEMENT AND GAMING CORPORATION

PAGCOR House, 1330 Roxas Boulevard, Ermita Manila.

OFFICE OF THE SOLICITOR GENERAL

134 Amorsolo St., Legaspi Village, 1229 Makati City

EXPLANATION: Kindly note that a copy of this pleading was sent to the above-
named party/parties by registered mail due to worsening traffic and lack of
personnel to effect personal service.

ATTY. PERICLEO L. SOLIS, JR.

27
REPUBLIC OF THE PHILIPPINES)
)SS

VERIFICATION and CERTIFICATION

I, ______________ RAMOS, Filipino, of legal age, after having been

duly sworn in accordance with law, depose and state that:

I am the PETITIONER in the above-stated case; I caused the

preparation of the foregoing pleading; I have read the contents thereof and
the facts stated therein are true and correct on my knowledge and belief
and/or based on authentic records in my possession; That I attest to the
authenticity of the annexes as attached to the instant pleading; I have not
commenced or filed any other action or proceeding involving the same
issues in the Supreme Court, the Court of Appeals, or any other tribunal or
agency; To the best of my knowledge and belief, no such action or
proceeding is pending in the Supreme Court, the Court of Appeals, or any
other tribunal or agency; I further certify that there is no case pending
before any tribunal that can be consolidated in the present petition. If I
should thereafter learn that a similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of Appeals, or any other
tribunal or agency, I undertake to report that fact within five (5) days
therefrom to this Honorable Tribunal.

________________________
Affiant

SUBSCRIBED AND SWORN TO before me

this ______________ in ________________, Philippines, affiant exhibiting
to me his competent evidence of identity, a photocopy of which is attached
hereto.

Doc.No.;
PageNo.;
BookNo.;
Series of 2019.

28