‘CVILSERVICE COMMISSION Repubiic ofthe Philippines SOSING, Algy Amadeo T. Re: Frequent Unauthorized Absences umber; 180539 Conduct Prejudicial to the Best Interest Promulgated: 25 SEP 2018 of the Service (Petition for Review) (D1720026317) DECISION Algy Amadeo T. Sosing, Officer-in. arge, Municipal Assessor, Municipal Government ‘of Pambujan, Northern Samar, files an Appeal, treated as a Petition for Review, from Decision 16-0049 dated December 2! 1016, issued by the Civil Service Commission Regional Office (CSC RO) VIII, Palo, Leyte, finding him guilty of Frequent Unauthorized Absences and Conduct Prejudicial to the Best Interest of the Service and imposing upon him the penalty of one (1) year suspension from the se Motion for Reconsideration. and Resolution No. 17-0045 dated April 28, 2017, denying hi ‘The dispositive portion of CSC RO VIII Decision No, 16-0049 dated December 29, 2016 reads, as follows: oor “WHEREFORE, Algy Amadeo T. Sosing, OIC-Municipal Assessor of the Municipality of Pambujan, Northern Samar, is hereby found guilty of the ‘administrative offenses of Frequent Unauthorized Absences under Section 45(B)(5) of the RRACCS, and Conduct Prejudicial to the Best Interest of the Service, and is meted the penalty of one (1) year suspension from the service.” In his Petition for Review, Sosing avers, as follows: oor “The respondent has vigorously argued that the biometrics print out (which was the primary document offered by the prosecution) is inadmissible neither as a legal document nor the Civil Service Form No. 48: It is worthy of emphasizing that the alleged biometrics print out were erroneously being referred to as DTR by the prosecution. Following the same contention, the discussion of the Decision also referred to them as DTR and used interchangeably as DTR (for brevity) xxx. Vv Bawat Kawani, Lingkod Bayani 7 CSC, BP Road Batasan Fs TRG Guezon Cay (G2) 937-793502) 951-7990102) 931-8097 csephlecscgouph@ wwwicscgov.phsox “The prosecution's Manifestation with Motion to Admit the Attached Position Paper with Formal Offer of Documentary Exhibits was received only on 15 December 2016. On 22 December 2016, respondent through counsel could not be faulted from filing Opposition or Comment thereto, without waiving presentation of defense evidence. Seven (7) days thereafter or on 29 December 2016, the Decision was promulgated, a copy of which was posted and dated 20 February 2017. It was only received on 27 February 2017. “Whereas, the prosecution waived presenting its evidence, respondent by filing comment and/or opposition to the Formal Offer of Exhibits did not waive in that comment or opposition its right to present evidence. Instead, it prayed that the evidence were inadmissible, hence, it did not warrant any basis for prosecution. “Due to such promulgation of Decision seven (7) days after the comment/opposition, defense was not able to present evidence t0 support his defense, or able to contradict or refute the alleged exhibits which, were in the first place, as espoused in the comment/opposition to the formal offer of exhibits were neither testified nor identified by any government witness or complaining party. Worse, these were photocopies from photocopies on file, hence, (double) hearsay. “Defense intended to fully ventilate his case, in fact, he appeared on two settings at the CSC Regional Office, the latest of which was on 15 December 2016 with his counsel, without any complaining witness and without the prosecution manifesting that it needed the compulsory process of subpoena, Subsequently, prosecution waived the presentation of its evidence. ao “The Reassignment Orders from and as Municipal Budget Officer to and as Municipal Assessor and vice versa, were dated First-July 24, 2013 for a ‘maximum period of one year; Second-August 1, 2014 for a maximum period of one ‘year; and Third-August 10, 2015 for a maximum period of one year xxx. “The reassignment orders were for the entire duration of the term of local officials and even beyond or up to August 10, 2016 (referring 10 the third from August 10, 2013). wor ‘Truly, these reassignment orders enjoyed presumption of regularity, ifand only if, they were not issued in violation of the maximum period allowed under the rrules or not tainted with malice and bad faith. Overcoming such presumption, the respondent, by consistently arguing the same in the reply to show cause order, in the comment/objection/opposition to the formal offer of prosecution's exhibits, and in all his other pleadings, the same was a cognizable attack against such presumption of regularity."Records show that in Memorandum Order No. 003 dated July 15, 2015, Mayor Lino L. Balanquit, Sr. issued a Show Cause Order against Sosing directing him to submit a written explanation why no administrative charges shall be instituted against him for Frequent Unauthorized Absences, Refusal to Perform Official Duties and Conduct Prejudicial to the Best Interest of the Service for his frequent and habitual absences from work. On September 7, 2015, Mayor Balanquit endorsed the case of Sosing to the CSC RO VIII in order to preclude allegations of partisanship or bias. In an Order dated October 14, 2015, the CSC RO VIII directed Sosing to show cause why no administrative case should be filed against him. In his Explanation dated November 12, 2015, Sosing attributed his absences to his reassignments from the Municipal Budget Office to the Municipal Assessor’s Office, pursuant to Reassignment Orders dated July 24, 2013, August 1, 2014 and August 10, 2015. Sosing alleged that he was displaced from his work since he was not fully aware of the duties and functions of a Municipal Assessor. However, records is bereft of any showing that he questioned any of his reassignment orders. Finding the existence of a prima facie case, the CSC RO VII issued CSC Resolution No. 16-0004 dated January 12, 2016 formally charging him with Frequent Unauthorized Absences under Section 46 (B) (5) of the Revised Rules on Administrative Cases in the Civil Service, Conduct Prejudicial to the Best Interest of the Service and Violation of existing Civil Service Law and Rules of Serious Nature. It reads, in part, as follows: wr That as shown above, Sosing incurred fifieen (15) absences in April 2015; var ‘4. That as shown above, Sosing had incurred seventeen (17) absences in May 2015; sor “6 That as shown above, Sosing had incurred seventeen (17) absences in June 2015; aor “8 That as shown above, Sosing had incurred eighteen (18) absences in July 2015; “9, That Sosing has no approved Application for Leave to cover the periods that he was absent in April, May, June and July 2015; aoe \“WHEREFORE, Algy Amado T. Sosing, OIC-Municipal Assessor, Municipality of Pambujan, Northern Samar, is hereby formally charged with the administrative offenses of Frequent Unauthorized Absences under Section 46 (B) (3) of the Revised Rules on Administrative Cases in the Civil Service, Conduct Prejudicial to the Best Interest of the Service and Violation of existing Civil Service Law and Rules of Serious Nature. “Accordingly, he is given three (3) days from receipt hereof to submit his written answer under oath, together with the affidavits of his witnesses and documentary evidence, if any, He is advised to indicate in his Answer whether or not he elects a formal investigation. A Motion to Dismiss, Request for Clarification, Bill of Particulars or any other pleadings shall be considered by this Office as his Answer and shall be evaluated as such. He is further advised of his right to the assistance of a counsel of his choice.” Despite the directive to file Answer, Sosing failed to do so. On June 29, 2016, a Pre- Hearing Conference was scheduled but Sosing failed to appear. On said date, Sosing’s counsel filed an “Entry of Appearance, Manifestation with Motion to Give Due Course to the Counter- Claim Againsi Reassignment Order and Service of Summons to the Respondent’s Counter-Claim, and Meantime Suspension Until Determination of Counter-Claim and Transfer Hearing Date and Venue”. In an Order dated July 8, 2016, the CSC RO VIII dismissed said Counter-Claim stating, as follows: 200 “This Office notes that Sosing had not filed/submined his Answer to CSC ROB Resolution No. 16-0004 promulgated on january 12, 2016 formally charging him of the administrative offenses of Frequent Unauthorized under Section 46 (B) (3) of the Revised Rules on Administrative Cases in the Civil Service, Conduct Prejudicial 10 the Best Interest of the Service and Violation of Existing Civil Service Law and Rules of Serious Nature. As such, his right to submit the same should be deemed waived. “On the other hand, the counter-claim being asserted by the respondent was contained in his Counter-Affidavit which he submitted during the conduct of preliminary investigation, In said Counter-Affidavit, Sosing had raised the issue of the alleged irregularity of the reassignment order issued 10 him by Mayor Balanquit. sor “From the afore-quoted provisions, the proper remedy for Sosing, if he felt aggrieved with his reassignment, was to file a motion for reconsideration before the Municipal Mayor and/or an appeal before this Office within the reglementary \period so provided. Sosing did not do this. Instead, he merely alleged the same in his Counter-Affidavit as ‘counter-claim’ which he submitted during the preliminary investigation of the instant case. It should be stated that said ‘counter-claim’ cannot be considered as equivalent to an appeal memorandum. The appeal for reassignment partakes the nature of a non-disciplinary case whereas the present case is disciplinary in nature, Hence, there is nothing for this Office to rule upon. sox “It appears that this Office does not have jurisdiction to rule upon the request to transfer venue of hearing as the same is lodged with the Commission's Central Office. “WHEREFORE, the instant motion to give due course to respondent's counter-claim and to transfer the venue of hearing is hereby dismissed." On October 11, 2016, the case was again set for Pre-Hearing Conference. However, Sosing again failed to appear. Thus, the Pre-Hearing Conference was considered waived. Respondent's counsel thereafter filed a “Motion to Transfer Hearing” scheduled on October 26 or 27, 2016. However, the case was instead scheduled for hearing on November 16, 2016 (Prosecution’s presentation) and December 2, 2016 (respondent's presentation). During the November 16, 2016 hearing, Sosing failed to appear. On December 2, 2016 hearing, Sosing appeared with counsel and filed another Ex-parte Manifestation with Motion that the case be dismissed outright on the ground that no witness attended nor original copies of evidence were identified or pre-marked against him during the scheduled Pre-hearing or Pre-trial of said case. In view of the postponement of hearings which delayed the resolution of the case and considering that the evidence to be presented by the Prosecution are documentary in nature, the Prosecution filed its Position Paper with Formal Offer of Exhibits on December 7, 2016. The case was then scheduled for the reception of respondent's evidence on December 15, 2016. On said date, Sosing and his counsel appeared. Sosing did not present any witness alleging that the office had not resolved the issues he raised in his Manifestations and Motions. Sosing also asked for postponement of the presentation of his witnesses. Sosing’s request was denied and in lieu thereof, he was directed to submit Position Paper with Formal Offer of Documentary evidence. On December 22, 2016, instead of submitting a Position Paper, Sosing, through counsel submitted a “Comment and/or Opposition to the Formal Offer of Exhibits for the Prosecution”, The same was treated as his compliance, and a waiver of his right to file a Position Paper. In Decision No. 16-0049 dated December 29, 2016, the CSC RO VIII found Sosing guilty of Frequent Unauthorized Absences and Conduct Prejudicial to the Best Interest of the Service and imposed upon him the penalty of one (1) year suspension from the service.Aggrieved, Sosing filed a Motion for Reconsideration. However, the same was deni CSC RO VIII Resolution No. 17-00045 dated April 28, 2017. Hence, this Petition for Review filed by Sosing with the Commission. The issues in this case are, as follows: 1. Whether there is violation of Sosing’s right to due process of law; and Whether there is substantial evidence to prove the charges against Sosing. Sosing avers that no evidence, whether testimonial or documentary was presented or testified to against him either in a pre-trial or trial of the case, depriving him of his right to confront the witnesses and his right to cross examination and to present evidence in his behalf. Thus, he claims that there was a violation of his right to due process. There is no denial of due process. It must be recalled that prior to the issuance of the Formal Charge, Sosing was able to file his Explanation where he averred that his absences are attributed to his reassignment to the Municipal Assessor's Office. In the Formal Charge issued against him, he was directed to file an answer, but he failed to do so, He was even advised to indicate in his answer whether he will elect a formal investigation of his case. During the June 29, 2016 Pre-Hearing Conference, Sosing failed to appear. Instead, he filed a Counterclaim questioning his reassignment orders and requested transfer of hearing and venue. When his Counter-Claim was dismissed by the CSC RO VIII, the case was again set for Pre-Hearing Conference on October 11, 2016. However, Sosing again failed to appear. Thus, his failure to attend the Pre-Hearing Conference for the second time ‘was considered as a waiver to participate in the Pre-Hearing Conference. Respondent’s counsel filed a Motion to Transfer Hearing scheduled on October 26 or 27, 2016. However, hearings were instead scheduled on November 16, 2016 and December 2, 2016. During the November 16, 2016 hearing, Sosing again failed to appear. On December 2, 2016 hearing, Sosing appeared with counsel and filed another Ex-parte Manifestation with Motion that the case be dismissed outright. Thus, in view of the several postponements made and the various pleadings filed by respondent and his counsel, the Prosecution filed a Manifestation with Motion to Admit Position Paper with Formal Offer of Exhibits. The Prosecution was allowed to file its Position Paper with Formal Offer of Exhibits on December 7, 2016 The records show that Sosing was properly informed of the cause and nature of the accusations filed against him. It was of his own fault that there was no formal investigation conducted because of his counsel's various request for postponements of hearings. In fact, he already exceeded the maximum number of postponement which is only once.' He resorted to the filing of various prohibited pleadings, like counter-claims and motion to dismiss, which obviously are dilatory tactics on the part of respondent. "Seaton 33, Rue 8 ofthe Revised Rules on Administrative Cases inthe Civil Service (RRACCS), now 2017 RACCS. \ait Section 25, Rule 5, Revised Rules on Administrative Cases in the Civil Service (RRACCS) provides: ‘Section 25. Prohibited Pleadings. The disciplining authority shall not entertain requests for clarification, bills of particulars, motions to dismiss, motions 10 quash, motions for reconsideration and motion for extension of time to file answer. The same shall be noted without action and attached to the records of the Thus, Sosing was deemed to have waived his right to confront the witnesses against him, Nonetheless, Sosing was able to file Comment to Prosecution’s Formal Offer of Evidence and a Motion for Reconsideration, In sum, Sosing was given a fair and reasonable opportunity to be heard but he chose to waive his right to do so, thus, there is no denial of due process While it is true that the conduct of a Pre-Hearing Conference is mandatory, the main purpose of said conference is only to simplify the issues and abbreviate the proceedings. The issue in this case is merely to determine whether Sosing is guilty of Unauthorized Absences which can be easily threshed out by merely examining his biometrics print out or Daily Time Records (DTR). Even granting that there was no conduct of Pre-Hearing Conference, Sosing has waived his right thereto by his continuous failure to appear on such scheduled pre-hearing conferences. In the case of Ray Peter O. Vivo vs. PAGCOR, G.R. No. 187854 dated November 12, 2013, the Supreme Court said that: xx ‘The observance of fairness in the conduct of any investigation is at the very heart of procedural due process, The essence of due process is to be heard, and, as applied to administrative proceedings, this means a fair and reasonable opportunity (0 explain one’s side, or an opportunity to seek a reconsideration of the action or ruling complained of Administrative due process cannot be fully equated with due process in its strict judicial sense, for in the former a formal or irial-type hearing is not always necessary, and technical rules of procedure are not strictly applied. Ledesma v. Court of Appeals elaborates on the well-established meaning of due process in administrative proceedings in this wise. xx Due process, as a constitutional precept, does not always and in all Situations require a trial-type proceeding. Due process is satisfied when a person is notified of the charge against him and given an opportunity to explain or defend himself. In administrative proceedings, the filing of charges and giving reasonable opportunity for the person so charged to answer the accusations against him constitute the minimum requirements of due process. The essence of due process is simply to be heard, or as applied to administrative proceedings, ‘an opportunity to explain one’s side, or an opportunity to seek a reconsideration of the action or ruling complained of.” (Emphasis supplied)Page bof 1 Sosing further contends that the biometrics print outs (DTRs) are inadmissible in evidence as they are only photocopies and that said documents were neither testified to nor identified by any government witness, hence, hearsay in nature. The contention is bereft of merit, The biometrics print outs (Daily Time Records) of Sosing for the months of April, May, June, and July 2015, are “certified machine copies” as certified by Conchita M, Tuballas, Human Resource Management Officer | (HRMO 1), same municipal government, Said DTRs show that Sosing incurred absences without an approved leave for the months of April, May, June and July, 2015, as follows: April : 15 days May - 17 days June - 17 days July - — 18days In a Letter dated October 5, 2015, Tuballas also informed the CSC RO VIII that the absences ineutred by Sosing during the months of April, May, June and July 2015, were not supported by approved application for leave. Said DTRs were supported by certified photocopies of Sosing’s Leave Cards which were also certified by Tuballas indicating therein that Sosing incurred Absences Without Official Leave (AWOL) during his absences. Moreover, Sosing did not refute said unauthorized absences but impliedly admitted in his Explanation that the absences he incurred were due to his reassignments to the Municipal Agsessor"s Office to which he does not have the competencies. The documents submitted by the Prosecution are official documents made in the performance of duty of a public officer, which are admissible in evidence whether the officer or person who made them was presented or testified in court, since the entries are considered prima facie evidence of the facts stated therei In the case of Ernesto M. Fullero vs. People of the Philippines, G.R. No. 170583 dated September 12, 2007, the Supreme Court stated, thus: sor The law, however, provides for specific exceptions to the hearsay rule. One of the exceptions is the entries in official records made in the performance of duty by a public officer. In other words, official entries are ‘admissible in evidence regardless of whether the officer or person who made them was presented and testified in court, since these entries are considered prima facie evidence of the facts stated therein, Other recognized reasons for this exception are necessity and trustworthiness. The necessity consists in the inconvenience and difficulty of requiring the official’s attendance as a witness to testify t0 innumerable transactions in the course of his duty. This will also unduly hamper public business. The trustworthiness consists in the presumption of regularity of performance of official duty by a public officer.”Sosing maintains that the CSC RO VIII failed to look into the reassignment for being void and tainted with malice and bad faith and issued beyond the period allowed by law The Commission is not persuaded. Appeals on reassignment are non-disciplinary cases which cannot be made as a counter-claim to a disciplinary case like in the present case. Reassignment is presumed to be regular and made in the interest of public service unless proven otherwise or if it constitutes constructive dismissal? Thus, Sosing could have questioned/appealed the validity of his reassignment orders after those were issued by Mayor Balanquit. Failing to do so, the presumption of regularity prevails. Sections 110 and 111, Rule 23, Revised Rules on Administrative Cases Service (RRACCS) provide, as follows: in the C ‘Section 110. Appeal from Decisions on Other Personnel Actions ~ Other personnel actions, such as, but not limited to, separation from the service due to unsatisfactory conduct or want of capacity during probationary period, dropping from the rolls due to Absence Without Official Leave (AWOL), physical and mental unfitness, and unsatisfactory poor performance, protest, action on appointments, reassignment, transfer, reappointment, detail, secondment, demotion, or termination of services, may be brought to the CSC RO, by way of an appeal. “Section 111, When and Where to File. -A decision or ruling of an agency head may be appealed within fifieen (15) days from receipt thereof by the party adversely affected to the CSC RO and finally, 10 the Commission within the same period.” In sum, Sosing is liable for the offense of Frequent Unauthorized Absences for having incurred absences in excess of the 2.5 days monthly leave credits for four (4) consecutive months for the first semester of 2015. However, considering that there is no evidence that the government service was prejudiced by his unauthorized absences, Sosing could not be held liable for Conduct Prejudicial to the Best Interest of the Service. With all the foregoing disquisition, there is substantial evidence to prove the offense of Unauthorized Absences against Sosing. Civil Service Commission Memorandum Circular (CSC MC) No. 23, set states, as follows: of 1998 ox CSC MC No. 02, 2008 dated January 4, 2005 (Revised Rules on Reassignment) \For this purpose, Rule XIV, Section 22 (q) on grave offenses and (c) on light offenses of the Omnibus Rules Implementing Book V of the 1987 Administrative Code and Other Pertinent Civil Service Laws are hereby amended 10 read as follows sor (y) Frequent unauthorized absences, loafing or frequent unauthorized absences from duty during regular office hours. 1° offense - suspension for six (6) months and one (1) day to one (1) year. ~2" Offense - DISMISSAL ‘An officer or employee in the civil service shall be considered habitually absent if he incurs unauthorized absences exceeding the allowable 2.5 days ‘monthly leave credit under the Leave Law for at least three (3) months ina semester or at least or at least three (3) consecutive months during the year. In case of claim of ill-health, heads of departments or agencies are encouraged to verify the validity of such claim and, if not satisfied with the reasons given, should disapprove the application for sick leave. On the other hand, in cases where an employee absents himself from work before approval of the application, said application should be disapproved. Item 5, Section 46 (B), Rule 10 of RRACCS states, as follows: var “B. The following grave offenses shall be punishable by suspension of six (6) months and one (1) day to one (1) year for the first offense and dismissal from the service for the second offense: ax Frequent unauthorized absences, or tardiness in reporting for duty, loafing from duty during regular office hours; Sections 49 (b), Rule 10, RRACCS states, as follows: “Section 49. Manner of Imposition, When applicable, the imposition of the penalty shall be made in accordance with the manner provided herein below. \v aor‘Sox, Aly Amadeo Page of ‘b. The medium of the penalty shall be imposed where no ‘mitigating circumstances and no aggravating circumstances are present. Thus, considering that Sosing was made liable only with the offense of Frequent Unauthorized Absences with no aggravating and mitigating circumstance, the medium penalty of nine (9) months suspension from the service should be imposed. WHEREFORE, the Appeal filed by Algy Amadeo T. Sosing, Officer-in-Charge, Municipal Assessor, Municipal Government of Pambujan, Northern Samar, is DISMISSED. Accordingly, Decision No. 16-0049 dated December 29, 2016, issued by the Civil Service Commission Regional Office (CSC RO) VIII, Palo, Leyte, finding him guilty of Frequent Unauthorized Absences and Conduct Prejudicial to the Best Interest of the Service and imposing ‘upon him the penalty of one (1) year suspension from the service and Resolution No. 17-00045 dated April 28, 2017, denying his Motion for Reconsideration, are AFFIRMED with MODIFICATION that Sosing is held liable only for Frequent Unauthorized Absences and is imposed the penalty of nine (9) months suspension from the service. It is clarified that the accessory penalty of disqualification from promotion corresponding to the period of suspension is also deemed imposed upon Sosing ‘A copy of this Decision shall be furnished the COA Resident Auditor-Municipal Government of Pambujan, and the Municipal Government of Pambujan, Northem Samar, for their reference and appropriate action. Quezon City. El) LEOPOLDO ROBERTO W. VALDEROSA, JR. | Commissioner LIC{A dela ROSA-BALA Chairperson VACANT Commissioner Pharn £. Corned, iy DOLORES B. BONIFACIO: Director IV Commission Secretariat and Liaison Office ‘SOSING, gy Amadeo 8-14-2018 Fisal Reprint REHASH-CM3-20.2018