PASEGURUHAN NG MGA NAGLILINGKOD SA PAMAHALAAN(GOVERNMENT SERVICE INSURANCE SYSTEM)

Financial Center, Pasay City, Metro Manila 1308

GOVERNMENT SERVICE INSURANCE SYSTEM, Complainant,

- versus – Adm. Case No. 09-034

For: Grave Misconduct; and Conduct Prejudicial to the Best Interest of the ServiceGLADYS JASMINE S. BONGATO, Respondent. x - - - - - - - - - - - - - - - - x

POSITION PAPER For The Respondent

PREFATORY STATEMENTSWith Statement of the Facts of the Case

“HINIHILING PO NAMIN ANG INYONG PAUMANHIN AT PAUNAWA.” Respondent’s act not being done with malice or with ulterior motive, she places her trust in HIM whose patience and understanding is infinite.

Respondent joined the Government Service Insurance System (GSIS) in Bohol on January 14, 2002, as a contractual employee. Evidently, her services must have been appreciated by her superiors because after a year, or on March 5, 2003, she was sort of rewarded with an appointment (permanent) as Social Insurance Analyst II, Posting Section of the GSIS. She is now in her seventh year with the GSIS, with the position of Staff Officer I, assigned in the External Reconciliation Unit, Coordinating with Agencies.

Since the year 2003, several programs were introduced by GSIS management. Policies and guidelines were changed. There was also a revamp of the old GSIS computer system integrating the database to the Mainframe. Posting of payments into the GSIS database became a priority, a task assigned which required respondent and her co-employees to render services even beyond regular hours. In 2007, several more changes were introduced. So that respondent was assigned to various tasks in addition to her regular workload as Social Insurance Analyst II. Her additional duties notwithstanding, she continued rendering services as expected of her, followed orders of her supervisors and cooperated with her fellow employees. (Please see Overtime, Office Orders and Travel Orders, marked as Exhs. “13-A” to “13-I”).

With one of the GSIS main functions in mind, that is, to render services to the members and pensioners, respondent performed her duties with dedication, integrity and honesty. In addition, she followed and observed rules and regulations issued by the GSIS authorities as well as the advices given by her co-employees, especially those of higher rank. Below are the names of her supervisors who vouch for her work attitude and whose

written commendations are marked as Exhs. “12”, “12-A” and “12-B”, respectively, as follows:

a. Rosalie L. Balbin – retired Branch Head, Bohol FO;b. Mariano T. Basa – retired Division Chief, Frontline Services Division, Bohol

FO; andc. Cecilia O. Guinto – retired Staff Officer III, External Reconciliation Unit.

It was sometime in the years 2006-2007 that the policy-makers of the GSIS introduced the eCard Plus. Unfortunately, because of the changes introduced by the authorities of the GSIS, even before May, 2007, GSIS, as an institution was unpopular, not only in Bohol, but also nationwide. This is evidenced by media reports. Thus, in its Sunday, July 2, 2006 issue of “The Bohol Chronicle”, a reputable newspaper-magazine in the City of Tagbilaran and in the province of Bohol which is read even by the Boholanos now residing in the United States, in a front page story with the title “GSIS pensioners cry foul” (among the annexes of the Answer marked as Exhs. “4” and “-A”), there is a picture of an old woman whose hands are held by a young man and another woman sitting on a wheel chair. This picture was taken in front of a building attached to which is a sign board which reads: “GOVERNMENT SERVICE INSURANCE SYSTEM”. Below the picture, are the following words: “IRRESPONSIVE. Elderly members have to walk their way to claim their pension checks at the Government Service Insurance System (GSIS) which policies could not even spare this woman on whellchair (sic) to personally claim her check.”

Other pertinent portions of the article read:

A visit made by a Chronicle team at the local GSIS office showed several elderly pensioners, some in wheelchairs, who have to wait long to claim their pension checks.

x x x

Asked for comment, Rep. Eladio Jala, chairman of the House committee on government enterprises said Congress told the Chronicle last Friday that Congress will momentarily wage an all-out drive to curb these discrepancies in the GSIS while admitting that the previous Congress has given vast powers to the GSIS board which governs the operation and function of the agency.

“If this is the kind of service the people gets from the agency, then a radical change should be instituted which might include a move to make GSIS membership already optional,” the solon said even as (he) admitted that such proposal has to be carefully studied.

x x x

x x x

Recently, the Integrated Bar of the Philippines-Bohol chapter has passed Resolution No. 02 urging GSIS to correct the “highly anomalous and unreasonable system of having only one bank with one automated teller machine to serve more than 4,000 GSIS members”.

2

The city sanggunian followed suit in pressing GSIS “to improve its delivery of services” by way of an approved Resolution No. 06-66 sponsored by city councilor Lucio R. Balbin.

GSIS officials led by lawyer Douglas Arturo Marigomen, GSIS manager; GSIS legal officer lawyer Mercedes Enriquez and division chief Mariano Basa recently explained their side, saying that they cannot do otherwise regarding the said policy because it is the GSIS board of trustees that is calling the shots.

In Bohol, there were determined efforts to oppose the compulsory enrolment of the GSIS members and pensioners in the eCard Plus Enrolment Program. Thus, in its Wednesday, February 21, 2007 issue of the same newspaper-magazine “The Bohol Chronicle”, in a front page story with the title “GSIS to face criminal suit from pensioners” (also among the annexes of the Answer marked as Exh. “4-A”), there are pictures of three Boholano lawyers, namely, Dela Serna, Glovasa and Bantugan (the first two are No. 1 Bar Topnotchers) who promised the pensioners to assist them in their legal battle against the GSIS.

Pertinent portions of the article read as follows:

Officials of the Government Service Insurance System (GSIS) will face criminal charges from old-age pensioners here in the province for compelling them to enroll in the E-Card system.

Lawyers Victor dela Serna, Oscar Glovasa and Danilo Bantugan have offered their legal services to retirement-pensioners who originally wanted to file a class suit against GSIS president Winston Garcia and the agency’s directors and key officials.

Pensioners have been opposing the implementation of the e-card due to its impracticality especially for those who are in the towns and those who are physically incapable of withdrawing their monthly pensions through automated teller machines (ATM) which are available only in the city.

x x x

When asked what are the possible criminal charges to be filed, Bantugan said they are still deciding on unjust vexation, estafa or illegal extortion since the pensioners are “forced” to enroll in the e-card system and deposit their monthly payments in a privately owned bank.

Some pensioners who are already using the e-card have complained over dyRD’s radio programs that Unionbank, the depository of their monthly pension, are frequently offline. Most of the pensioners have to travel from the towns to withdraw their pension at ATMs here.

In January, 2007, respondent was appointed to represent the GSIS in the local pool of information officers known as Association of United Development Information Officers in Bohol (AUDIO-Bohol). (Please see Exhs. “13-A”, “13-B” and “13-I” attached to the Counter-Affidavit). Performing in such capacity, respondent came face to face with members of the association representing their officemates. Caught between public service and enforcing management policies and guidelines, respondent did her best to pacify the complainants.

3

During the implementation of the eCard Plus Enrollment Program, respondent was designated as among those who composed the onsite and offsite task force of the Program. (Please see office orders attached to the Answer as Exhs. “5” and “5-A). As a member of the task force, respondent worked under Mr. Roy Chester Lasala, the Acting Branch Information Technology Officer of GSIS Bohol Field Office who was designated as the Supervisor on Call of the said task force. (Please see attachments to Exh. “5”, Exhs. “5-A” & “8”).

Before her participation in the eCard Plus Enrollment Program, respondent was not furnished a copy of any guideline on the said program, nor was she required or allowed to undergo an orientation-seminar pertaining to the said program. So that, just like her co-employees (as shown in pertinent records of the GSIS Bohol Field Office, more or less 15 of them), respondent relied solely on the advices and/or instructions of Mr. Lasala, their Supervisor, in the implementation of the program.

In the performance of her duties in the eCard Plus Enrolment Program, respondent encountered cases wherein members and pensioners, more of the latter who are in fragile health because of their old age, did not have cellular phone numbers. The reasons given varied. Some claimed that they could not afford to buy one, some claimed that in the places where they live there is no coverage, while others were simply too old to adopt to the gadget. When asked if they knew of anyone who had a cell phone, they could not provide names. Because, as earlier stated, respondent was not furnished a copy of any guideline on the said program, nor was she required or allowed to undergo an orientation-seminar pertaining to the said program, just like her co-employees, respondent did not know what to do. They, however, knew that refusing the enrolment of the members and the pensioners who did not have cell phones would mean that they had to come back to the office and undergo the same ordeal of lining up again either under the heat of the sun or at the mercy of the rain. Non-enrollment would also mean non-receipt of their much needed pension money which, generally, are their only means of support for medicine and maintenance. Although in No. 3 (a) and (b) of her Supplemental Counter-Affidavit (Exh. “15”) respondent admitted that, before she became a member of the several tasks force tasked with the enrollment of GSIS members/pensioners at the GSIS Bohol Field Office, she and her co-employees were already enrolled under the eCard Plus Enrollment System (Program), there was NO SINGLE INCIDENT that they had a problem on what to do just in case an employee could not give a cell phone number for the simple reason that all of them have cell phones.

Under the aforementioned conditions and burdened by the need to expedite the processing, meet the quota and satisfy the requests of GSIS members/pensioners for prompt service, respondent and her co-workers sought the advice of Mr. Roy Chester S. Lasala, with regards to cases wherein they could not successfully enroll members solely for the reason that cell phone numbers could not be secured from them. Heeding the advice of Mr. Lasala, respondent and her about 15 co-employees, then proceeded with the enrollment by encoding “11111111111” on the item “mobile phone” to successfully enroll said members/pensioners, which, according to Mr. Lasala, was also the practice in the other branches. (Please see Exh. “l”). The members/pensioners, however, were advised to come back as soon as they could acquire cell phones or they know of the cell phone numbers of their relatives, friends or neighbors.

Then, coming as a bolt of lighting on a clear day, sometime during the first week of June, 2007, respondent, together with SOME of her co-employees who likewise heeded the advice of Mr. Lasala, namely, Fred Dexter T. Carnice, Geil T. Florita and

4

Ma. Nemar A. Sumalinog, in a Memorandum, dated 01 June 2007 signed by Alex M. Valencerina, Senior Vice President, FOG (Exh. “2-A”) were required to explain “why no administrative charge should be filed against them.” because they “allegedly allowed GSIS members/pensioners to enter spurious cellular phone numbers in their enrolment forms”. As if, in the GSIS Bohol Field Office, only the four (4) of them participated in the eCard Plus Enrolment Program and encoded “11111111111” on the item “mobile phone” on the eCard Plus Data Sheet of some GSIS members/pensioners who did not have cell phones. In spite of their Joint Letter-Explanation, dated June 4, 2007 (Exh. “2-B”) respondent, together with her co-employees, namely, Geil T. Florita, Ria Eva M. Sevilla, and Ma. Nemar A. Sumalinog, in a Memorandum, dated 16 July 2007 signed by Violeta C. F. Quintos, Manager, GSIS Investigation Department (Exh. “3”) were required to show cause “why you should not be administratively charged on the basis of the same alleged facts”. Respondent’s co-employee Fred Dexter T. Carnice, is indeed fortunate. Although their explanation was embodied in a Joint Letter-Explanation (Exh. “2-B”(, he was no longer included in the Show Cause Order (Exh. “3”). Stated differently, their Joint Letter-Explanation was satisfactory insofar as Fred Dexter T. Carnice only. On the other hand, respondent’s co-employee Ria Eva M. Sevilla is unfortunate. Although she was not included in the 01 June 2007 Memorandum (Exh. “2-A”) she was included in the Show Cause Order (Exh. “3”).

Evidently, respondent’s Affidavit of Explanation which she executed on July 30, 2007 (Prosecution’s Exh. “E” adopted as Exh. “14”) in compliance with the show cause order was not satisfactory for the simple reason that, presently, respondent is now facing a Formal Charge for the above-mentioned administrative offenses.

THE ISSUES TO BE RESOLVED

On the bases of the allegations of the Formal Charge and its enclosures and the above Statement of the Facts of the Case, the following are the issues to be resolved:

1. Whether or not respondent’s act of encoding “11111111111” on the item “mobile phone” on the eCard Plus DATA SHEET of GSIS members/pensioners who did not have cell phones, constitutes Grave Misconduct; and/or

2. Whether or not respondent’s act of encoding “11111111111” on th5e item “mobile phone” on the eCard Plus DATA SHEET of GSIS members/pensioners who did not have cell phones, constitutes Conduct Prejudicial to the Best Interest of the Service.

DISCUSSIONS/ARGUMENTS

Re the First Issue. Whether or not respondent’s act of encoding “11111111111” on the item “mobile phone” on the eCard Plus DATA SHEET of GSIS members/pensioners who did not have cell phones, constitutes Grave Misconduct.

In her Counter-Affidavit (Nos. 12 to 15 of Exh. “13”), respondent explained why she encoded “11111111111” on the item “mobile phone” on the eCard Plus DATA SHEET of GSIS members/pensioners who did not have cell phones. Her explanation was already discussed in detail in the Prefatory Statements hereof. It bears stressing that Mr. Mariano T. Basa, the then Division Chief of the Frontline Services Division of the GSIS Bohol FO, in No. 7 of his affidavit (Exh.”16”) has this to say:

5

7. That since the entry field for cellphone numbers does not accept the word “none” which should be the correct information to fill up for those who have no cellphones, the processors had no choice but to accept the advice of Mr. Lasala to use the numbers “111111111111” or “00000000000” in place of the word “none”. These numbers did not correspond to a real cellphone number. It just indirectly signified that the members/pensioners had no cellphones at all, which was their correct status;

At this juncture, the pertinent question is – did respondent’s act of encoding “11111111111” on the item “mobile phone” on the eCard Plus DATA SHEET of GSIS members/pensioners who did not have cell phones upon the advice of Mr. Lasala constitute Grave Misconduct?

For a judicious answer to the foregoing question, there is a need to revisit pertinent decisions of the Supreme Court on Grave Misconduct.

In grave misconduct, x x x the elements of corruption, clear intent to violate the law or flagrant disregard of established rule must be manifest. Corruption as an element of grave misconduct consists in the act of an official who unlawfully uses his station or character to procure some benefit for himself. (Geronca vs. Magalona, A. M. No. P-07-2398, Feb. 13, 2008, 545 SCRA 1, 7, citing Salazar vs. Barriga, A. M. No. P-05-2016, 19 April 2007, 521 SCRA 449).

Misconduct is a transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, unlawful behavior, willful in character, improper or wrong behavior; while “gross” has been defined as out of all measure beyond allowance, flagrant, shameful. A process server’s act of demanding and receiving money from the uncle of a party litigant constitutes grave misconduct in office. (Rodriguez vs. Eugenio, 521 SCRA 489).

From the foregoing decisions of the Supreme Court, it appears that for an act of a government officer or employee to be characterized as Grave Misconduct, the following requisites must concur:

a. There must be a law or established rule; b. There must be a clear intent on the part of the respondent to violate such law or

established rule; and c. There must be a corrupt motive, that is, the respondent unlawfully used his/her

station or character to procure some benefit for himself/herself, e. g., pecuniary or otherwise.

Let us now see whether the foregoing requisites are present in this case.

a. There was no law or established rule applicable to the problem of the respondent and her co-workers.

At the time the respondent encountered a GSIS member/pensioner who could not give a cell phone number, she, just like her co-workers, practically faced a “blank wall”. There was nothing to guide her on what to do under such circumstance. As earlier stated, there was no existing guideline and neither was she required to undergo an orientation-seminar before she was made to participate in the eCard Enrolment Program. Although, as earlier stated, before respondent became a member of the several tasks force tasked with the enrollment of GSIS members/pensioners at the GSIS Bohol Field Office, she and her co-employees were already enrolled under the eCard Plus Enrollment System (Program), they did not become face to face with the problem of what to do in case a member/pensioner could not give a cell phone number because, during their own enrollment, there was NO SINGLE INCIDENT that they had a problem on what to do

6

just in case an employee could not give a cell phone number for the simple reason that all of them have cell phones.

The ECARD PLUS ENROLLMENT GUIDELINES which is one of the enclosures to the Formal Charge did not yet exist on or before May, 2007 when the respondent encoded “11111111111” on the item “mobile phone” on the eCard Plus DATA SHEET of GSIS members/pensioners without cellphones. This fact is corroborated by Mr. Basa when in No. 3 of his affidavit (Exh. “16”) he declared as follows: “That on or before May 2007, the GSIS Bohol FO did not receive the ECARD PLUS ENROLMENT GUIDELINES from the proper GSIS authorities;”. On her part, respondent saw it for the first time only on July 8, 2009 when she was served with the Formal Charge.

It bears emphasis that the “ECARD PLUS ENROLLMENT GUIDELINES” which is in eight (8) pages, has the following significant omissions:

First. It is undated; Second. It does not mention the legal basis for its issuance. Not even a board

resolution; andThird. There is nothing therein by which the reader could identify the ones

responsible in issuing the “Guidelines”.

That the ECARD PLUS ENROLLMENT GUIDELINES did not yet exist on or before May, 2007 is established by a string of circumstantial evidence. Thus:

a. The Guidelines were not even mentioned in the Memorandum, dated 29 May 2007 signed by Arnaldo C. Cuasay (Exh. “2”);

b. Likewise, the implementing Memorandum signed by Alex M. Valencerina, Senior Vice President, Field Operations Group, dated 01 June 2007 (Exh. “2-A”), did not mention the Guidelines. It was precisely for the foregoing reason that in a letter, dated June 4, 2007 which respondent, together with her officemates Fred Dexter T. Carnice, Geil T. Florita, and Ma. Nemar A. Sumalinog, sent to the said Alex M. Valencerina, the last paragraph thereof reads: “We further appeal that formal and written guidelines should be formulated on the appropriate procedure in the enrollment of members or pensioners who do not own cellular phones.” (Exh. “2-B”);

c. The pertinent portions of the Letter-Explanation of Mr. Roy Chester S. Lasala, in three (3) pages, addressed to VIOLETA C. F. QUINTOS, Manager, Investigation Department, Office of the President and General Manager, GSIS, dated August 29, 2007 (Annex “1” of the Answer), read as follows:

“5. It was this common practice authorized by the TIM Company and not ordered stopped by the Field Managers that the undersigned suggested to the processors for use in the eCard plus enrolment, but only in instances when the applicant could not give any cellphone number;

“6. GSIS has no standing written Circulars on how to address this eventuality because not all members have cellphones. This is also true especially for pensioners;

In the second to the last paragraph of his Letter-Explanation, Mr. Lasala made the following request:

7

The undersigned further respectfully prays that the GSIS issue a written policy to address the eventuality when GSIS applicants could not supply the processors with any cellphone number so as not to deprive these GSIS applicants of enrolment to the program by reason of their inability to buy cellphones.

d. Neither were the Guidelines mentioned in the Show Cause Order (Memorandum), dated 16 July 2007 (Exh. “3”); and

e. Among the documents attached to the Formal Charge is the following:

a. Office memorandum dated 13 July 2007, addressed to the Manager, Investigation Unit, coming from the Office of the Senior Vice President, Field Operations Group, with the subject ‘USE OF 00000 AND OR 11111 IN PLACE OF ACTUAL CELL PHONE NUMBERS DURING ENROLLMENT OF ECARD PLUS’, including a list of names of GSIS employees from the different field offices in Baguio, Bataan, Batangas, Bohol, Butuan, Cagayan De Oro, Catbalogan, Cauayan, Dipolog, General Santos, Kidapawan, Laguna, Legazpi, Maasin, Naga, Pampanga, Quezon City, Sorsogon, Tarlac, and Tuguegarao.

There were a total of TWENTY ONE (21) branches of the GSIS and a total of FORTY EIGHT (48) employees who did the same act done by the respondent which is now the subject of the Formal Charge. Under III. 7, p. 4 of the GUIDELINES, what the respondent and her co-employees should have done was to comply with the following SIMPLE directive: “x x x Absence of cellphone number in the form shall be a ground for the deferment of the application”. Indeed, it is a source of wonder why 48 employees of the GSIS, distributed in 21 branches, could not comply with such simple directive if the GUIDELINES really existed on or before May, 2007. Certainly, the GSIS employees concerned are not stupid. Neither are they hard-headed.

Even assuming that the Guidelines already existed on or before May, 2007, just the same, the respondent is not bound thereby. Reason for this is that it is not even alleged in the Formal Charge that before she performed the act with which she is now charged, a copy thereof was furnished to her. Or, at the very least, her superiors in the GSIS Bohol Field Office invited her attention to the provisions of the Guidelines.

If notwithstanding the foregoing ratiocination it should still be insisted that the respondent is bound by the Guidelines, with due respect, it is our considered view that such insistence is not only unlawful - it is unconstitutional because the Guidelines will then be in the nature of an ex post facto law. Thus, in Letran Calamba Faculty & Employees Association vs. NLRC, G. R, No. 156225, Jan. 29, 2008, 543 SC RA 26, it was held that: “The general rule is that administrative rulings and circulars shall not be given retroactive effect. “

In a case analogous to the case at bar, the Supreme Court criticized a decision of the Court of Appeals in the following manner:

The decision, in effect, was like a default judgment where the petitioner was knocked out of the litigation not through its own fault but because of the umpire’s interpretation of a rule enacted while the fight was in progress. (Consolidated Bank and Trust Corp. vs. Court of Appeals, G. R. No. 78771, Jan. 23, 1991, 193 SCRA 158, 179).

8

In their Joint Letter-Explanation which respondent and her co-workers wrote to SVP Alex M. Valencerina, dated June 4, 2007 (Exh. “2-B”) it is stated therein that their Acting Branch Information Technology Officer (ITO) “made a verbal instruction to use a temporary number, 11111111111, to proceed with the enrollment”. In her Affidavit of Explanation which she executed on July 30, 2007 (Exh. “14”, also Exh. “E”), the pertinent portion thereof reads: “4. Considering that an applicant can not be enrolled without a cellular telephone number indicated under the item “mobile number”, I, as well as the other processors, referred this matter to the acting branch Information Technology Officer (ITO). The latter advised us to momentarily enter the numbers “11111111111” under the item “mobile number” as default or temporary number which accordingly was also the practice in the other branches.” In his affidavit (Exh. “16”), Mr. Basa declared as follows:

9. That per experience, cellphone numbers unlike landline numbers, which have a permanent state, are easily lost or changed for various reasons. The cellphone is the number one subject of snatchers. Even if not stolen, because of its size, it can easily be misplaced and left out in any place especially if handled by old and forgetful pensioners. Even if it is not lost or stolen, cellphone owners can change cellphone numbers at will. Without any law or guidelines, it never came to our minds that the cellphone numbers are mandatory;”.

10. That the processors, could not decide on their own to inform the public that lack of cellphone number is a ground for the deferment of their application for fear of riot and verbal attacks from the GSIS members/pensioners especially those who have no cellphones;

11. That the processors had to expedite the processing of Ecard Plus because they had targets and deadlines to meet;

12. That the GSIS members/pensioners who were able to enroll despite the lack of cellphone numbers were pleased to received their Ecard Plus with their benefits;

The foregoing, notwithstanding, it is insisted in the Formal Charge: “That respondent never attempted nor sought the written approval of her supervisors (e. g. Branch Managers or any Manager from the Information Technology Services Group) and continued to enroll members without cell phones and entered “11111111111” as their cell phone numbers”.

With due respect, it is our well-considered view that the foregoing specific charge in the Formal Charge, i. e., requiring a written approval, is unreasonable, for the following reasons:

First. On or before May, 2007 there was no existing guideline issued by the proper authorities of the GSIS requiring an employee to secure a written approval for whatever work he/she performed from his/her supervisors.

Second. In par. 5 of his Letter-Explanation addressed to Violeta C. F. Quintos, dated August 29, 2007 (Exh. “1”) Mr. Lasala admitted having “suggested” to the respondent and the other processors of the office “the use of the said numbers”. Such written admission of Mr. Lasala is, at least, a substantial compliance of the requirement, assuming there was/is a standing guideline , of a written approval of a supervisor.

Third. Considering that the respondent and her co-employees first sought advice from Mr. Lasala before they encoded “11111111111” on the item “mobile phone” on the eCard Plus DATA SHEET of GSIS members/pensioners who did not have cell phones, it is obvious that the requirement of a “written approval” is already superfluous, if not, absurd.

9

Fourth. It is our considered view that for a subordinate employee to ask advice (approval) from his/her superior and at the same time request the latter to reduce his advice (approval) in writing would not be conducive to the existence of rapport between the two because, needless to state, the latter would entertain an uneasy feeling that his subordinate would later on file a case against him (superior officer) using as evidence the written advice (approval).

Fifth. As stated in the Prefatory Statements hereof, in Bohol, there were determined efforts to oppose the compulsory enrolment of the GSIS members and pensioners in the eCard Plus Enrolment Program. Thus, in its Wednesday, February 21, 2007 issue of the “The Bohol Chronicle”, in a front page story with the title “GSIS to face criminal suit from pensioners” (Exh. “4-A”) there was a threat hurled by three Boholano lawyers, namely, Dela Serna, Glovasa and Bantugan against officials of the Government Service Insurance System (GSIS) for their act of compelling old-age pensioners to enroll in the E-Card system. Hence, had respondent asked from Mr. Lasala a written advice, and, considering that there were about 15 of them who participated in the task of enrolling GSIS members/pensioners in the eCard Plus Enrollment Program, that would take time which would further inflame the common feelings of disgust among the GSIS members/pensioners during the enrollment period. The members/pensioners concerned could be potent leaders or, at least, participants in a protest rally against the GSIS. Stated differently, respondent acted under pressure so that the insistence of a written approval from a supervisor is to our mind already unkind.

With due respect, it is our considered view that the GSIS has no authority to require GSIS members/pensioners to indicate in their enrollment forms their cellphone number, otherwise, “Absence of cellphone number in the form shall be a ground for the deferment of the application”, for the following reasons:

First. Neither the Formal Charge nor any of its enclosures cites a legal provision that, as a precondition to the right of a GSIS member/pensioner to enjoy his benefits administered by the GSIS, he must own a cell phone. Needless to state, such is the effect of the provision in the Guideline cited in the Formal Charge “That based on existing guidelines on ecard plus enrollment, with the absence of a cell phone number in the enrollment form of the member, the respondent should have deferred the application of said member.”.

Second. It is our well-considered view that not even Congress has the authority to deprive GSIS members/pensioners of their right to enjoy their benefits administered by the GSIS on the ground that they do not own cell phones. The moment Congress does it, the lawmakers concerned will be the objects of the public’s suspicion that they are influenced in so doing through pecuniary considerations by the cell phone companies who, needless to state, are the ones who would be benefited by the law.

Third. No. 7, p. 4 of the provisions of the Guideline which reads: “x x x. Absence of cellphone number in the form shall be a ground for the deferment of the application.” is contrary to settled jurisprudence. Thus, in In Re: Monthly Pension of Judges and Justices, A. M. No. 9-019-SC. October 4, 1990, EN BANC, 190 SCRA 315, 320), it was held that:

x x x This is definitely more in keeping with and gives substance to the elementary rule of statutory construction that, being remedial in character, retirement laws should be liberally construed and administered in favor of the persons intended to be benefited and all doubts as to the intent of the law should be resolved in favor of the retiree to achieve its humanitarian purposes (Bautista vs. Auditor General, etc., et al., l04 Phil. 812 [1958]; Ortiz vs. Commission on Elections, et al., 162 SCRA 812 [1988].

10

Retirement laws are intended to entice competent men and women to enter the government service and permit them to retire therefrom 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 (See Abad Santos vs. Auditor General, et al., 79 Phil. 176 [1947].

The retirement system for officers and employees of the government set up by the Government Service Insurance Act (CA 186, as amended, P. A. L. Title 60 Section 72 et seq.) was designed primarily to provide for old age and disability, and should be construed, in the light of its purpose, liberally in favor of government employees seeking the benefits thereof. (Bautista vs. Auditor General, 104 Phil. 428 [1958]).

Fourth. The deferment of the application of the member/pensioner concerned as provided for in the Guideline does not agree with the vision of PGM Winston F. Garcia who was quoted as saying that: “The bottom line of the GSIS modernization master plan is to allow faster delivery of services in the most convenient way possible. We want to see the day when members only need to apply for benefits online and get the proceeds in a matter of seconds. We feel that this vision will become a reality sooner than we think with the GSIS Visa eCard program”. Should the deferment be insisted as provided for in the Guideline, the aggrieved member/pensioner has a valid reason to gripe and ask: “How could the GSIS modernization master plan allow faster delivery of services when my application for enrollment is even deferred simply because I do not have a cell phone?”

b. There was no clear intent on the part of the respondent to violate any law or the Guideline.

As discussed above, the Guideline did not yet exist on or before May, 2007. And, even assuming that the Guidelines already existed on or before the said date, just the same, the respondent is not bound thereby because it is not even alleged in the Formal Charge that before she performed the act with which she is now charged, a copy thereof was furnished to her, or, her immediate superiors invited her attention to the provisions of the Guidelines.

As explained by the respondent in Nos. 14 to 15 and 17 to 19 of her Counter-Affidavit (Exh. “13”), considering that she only has the basic knowledge of operating a computer, she did not entertain any doubt on the validity of the advice given to her and her co-processors by Mr. Lasala. Which was why she honestly believed that the data required under the item “mobile phone number” could be temporarily substituted with another data without adversely affecting the integrity of the database. In fact, in No. 7 of his affidavit (Exh. “16”), Mr. Basa declared as follows:

7. That since the entry field for cellphone numbers does not accept the word “none” which should be the correct information to fill up for those who have no cellphones, the processors had no choice but to accept the advice of Mr. Lasala to use the numbers “111111111111” or “00000000000” in place of the word “none”. These numbers did not correspond to a real cellphone number. It just indirectly signified that the members/pensioners had no cellphones at all, which was their correct status;

Thus, encoding “11111111111” on the item “mobile phone” on the eCard Plus DATA SHEET of GSIS members/pensioners without cellphones became common practice among her co-employees. During those times, respondent had not received or known of any advisory on what to do in cases where members/pensioners did not have cell phone numbers, except the advice of Mr. Lasala already adverted to. Consequently, respondent did not have any knowledge or information that, when she encoded “11111111111” on the item “mobile phone” of some members/pensioners who did not have cell phones, said act was prohibited. She then believed in good faith and in all

11

honesty that by following the advice of Mr. Lasala, their Supervisor On Call, she was performing her duties within the bounds of law and that, in her own small way, she was helping the GSIS comply with its duty to the GSIS members/pensioners and at the same time achieved the intention of the ECard Plus Enrollment Program. Thus, attached to the Answer as Exh. “11” is the affidavit of Ms. Teodula A. Masapequeña, a survivorship pensioner of Poblacion, Maribojoc, Bohol who was among those whom respondent had served and was quite contented with the quality of her services. If respondent relied on and acted upon the advice of Mr. Lasala, it was not only because he was then their acting ITO and the Supervisor On Call of the Ecard Plus Enrollment Program, but also because, as shown in Exh. “10”, Mr. Lasala was one among the members of the task force who was sent to the Biometrics Training for the Ecard Plus Program. To the mind of the respondent and her co-processors, such training gave Mr. Lasala the much needed expertise that they lack.

c. There was no corrupt motive, pecuniary or otherwise, on the part of the respondent when she encoded “11111111111” on the item “mobile phone” on the eCard Plus DATA SHEET of GSIS members/pensioners without cellphones.

In absolving a public school teacher from administrative responsibility for Grave Misconduct, the Supreme Court EN BANC in Landrito vs. Civil Service Commission (G. R. Nos. 104304-05, June 22, 1993) ruled that “There is no evidence that petitioner (the public school teacher) profited pecuniarily from the act imputed upon her”.

Further, in Rodriguez vs. Eugenio, 521 SCRA 489, it was held that:

Misconduct is a transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, unlawful behavior, willful in character, improper or wrong behavior; while “gross” has been defined as out of all measure beyond allowance, flagrant, shameful. A process server’s act of demanding and receiving money from the uncle of a party litigant constitutes grave misconduct in office.

In No. 4 of her Supplemental Counter-Affidavit (Exh. “15”), respondent declared as follows:

4. I am making it clear, here and now, without fear of being contradicted later on, that in encoding the number “11111111111” in place of actual cell phone numbers on the item “mobile phone” during the enrollment of eCard Plus upon the advice of Mr. Roy Chester S. Lasala, I did not demand money and/or other material considerations from those (the GSIS pensioners or members) who were directly benefited by my act; and neither was I motivated to benefit a relative or a friend in so doing, the truth being that the GSIS members/pensioners concerned were not even my acquaintances;

The foregoing claim of the respondent is undisputed because nowhere do we find from any of the enclosures to the Formal Charge to the effect that in encoding “11111111111” in place of actual cell phone numbers on the item “mobile phone” during the enrollment of eCard Plus upon the advice of Mr. Lasala, respondent demanded money from those (the pensioners or members) who were directly benefited by her act. Neither is there evidence that, in so doing, respondent was motivated to benefit a relative or a friend.

From the foregoing discussions, it is clear that NOT EVEN ONE of the three requisites for an act of a government officer or employee to be characterized as Grave Misconduct is substantiated by evidence.

Re: The Second Issue. Whether or not respondent’s act of encoding “11111111111” on the item “mobile phone” on the eCard Plus DATA SHEET of GSIS members/pensioners who did not have cell phones,

12

constitutes Conduct Prejudicial to the Best Interest of the Service.

Just like what we did in connection with our discussions on the first issue, there is likewise a need to revisit pertinent decisions of the Supreme Court on acts of public officers or employees which constitute Conduct Prejudicial to the Best Interest of the Service. A study of some pertinent decisions of the Civil Service Commission (CSC) is likewise in order so that we can arrive at a judicious resolution of the second issue.

Under the Civil Service Law and rules, there is no concrete description of what specific acts constitute the grave offense of conduct prejudicial to the best interest of the service. (Office of the Ombudsman vs. Tongson, 499 SCRA 567). In fact, in Ponferrada v. Relator, Adm. Matter No. P-87-119, Jan. 30, 1990, 181 SCRA 698, the Supreme Court held that:

x x x Respondent has gone to the extent of falsifying court orders with apparent ill-motive of making possible the withdrawal of cash bail, acts which are reflective of her patent unfitness for the position she is occupying. These actuations of herein respondent constitute a grave misconduct and conduct prejudicial to the best of the service and acts unbecoming of a public employee.” x x x .

Citing Amosco vs. Magro (73 SCRA 107), the CSC, in its Resolution No. 070958 (Amba, Tita B.), dated May 25, 2007, held that x x x Conduct Prejudicial to the Best Interest of the Service refers to “such unwarranted act of the respondent resulted in an undue prejudice to the best interest of the service”. (Lucero, Antonio M., CSC Resolution No. 98-0649, March 25, 1998). In Resolution No. 050010 (DULAY, Blandina, P.), the CSC affirmed the decision of the Secretary of the DOH, dated August 6, 2003, finding the respondent (head of the Cashier Section of a medical center) guilty of Dishonesty and Conduct Prejudicial to the Best Interest of the Service, for the latter’s act of misappropriating government money in the amount of more than P2M.

The administrative offense of conduct prejudicial to the interest of the service need not be related or connected to the public officer’s official functions – as long as the questioned conduct tarnished the image and integrity of his/her public office, the corresponding penalty may be meted on the erring public officer or employee (Largo vs. CA, 537 SCRA, 72).

From the foregoing decisions (of the Supreme Court and of the Civil Service Commission) it appears that the act of a public officer or employee which constitutes Grave Misconduct may likewise constitute Conduct Prejudicial To The Best Interest Of The Service. This is precisely the reason why in the Formal Charge respondent is charged with the two administrative offenses although she is charged of having committed only one act. Consequently, logic dictates that if respondent’s act does not constitute Grave Misconduct, neither does it constitute Conduct Prejudicial To The Best Interest Of The Service. Notwithstanding the validity of the foregoing conclusion, respondent opts not to rest her case thereon.

There are also Supreme Court decisions wherein neglect of duty is confused or coupled with conduct prejudicial to the best interest of the service. Thus:

a. In Belvis, et al vs. Fernandez, A. M. No. P-95-1147, April 25, 1996, the respondent was a clerk in the RTC. In affirming the finding of the OCA that the respondent was administratively liable for conduct prejudicial to the best interest of the service, it was held that: “There is no question that respondent is prejudicing public service with frequent absences and tardiness. x x x “.

b. The case of Gesite, et al vs. the Court of Appeals, et al., G. R. Nos. 123562-65, Nov. 25, 2004, EN BANC, involves public school teachers who left their respective

13

classes unattended during class days and hours and joined the mass actions taken by the public school teachers. In affirming the decision of the Court of Appeals, the Supreme Court held that: “We thus find that the Court of Appeals did not err in holding that petitioners engaged in an activity proscribed by the Civil Service law and Rules. Their absences without authority caused adverse effects upon their students for whose education they are responsible. Clearly, their acts constitute conduct prejudicial to the best interest of the service, x x x “.

c. The case of Philippine Retirement Authority (PRA) vs. Thelma Rupa, G. R. No. 140519, Aug. 21, 2001. The respondent was a PRA Human Resource Management Officer. For her act of refusing to process the withdrawal clearance of two (2) Indian nationals despite repeated requests, the respondent was found by the CSC guilty of Conduct Prejudicial to the Best Interest of the Service. However, on appeal to the Court of Appeals, it was downgraded to Simple Neglect of Duty. This was affirmed by the Supreme Court.

d. Pajares vs. Alipante, G. R. No. R-190-P Sept. 15, 1987, EN BANC. In this case, the complainant was an RTC Judge while the respondent was a deputy sheriff. Briefly, the evidence against the respondent is to the effect that, as deputy sheriff, he enforced a writ of preliminary attachment on personal properties in the possession of the defendants and deposited the same in a private warehouse. Without the knowledge of the respondent, the plaintiff was able to withdraw the properties from the warehouse. The respondent failed to retrieve the same from the plaintiff. He likewise failed to make a return of the writ. In affirming the recommendation of the Investigating Judge, the Supreme Court held that: “We agree that the respondent is guilty of gross negligence AND conduct seriously prejudicial to be best interest of the service. The evidence shows respondent to have been completely unmindful of his duties, so indifferent to his responsibilities as to be scornful of them, and utterly uncaring of the rights of the parties. He has by his conduct shown himself unfit for public service, x x x “.

From the foregoing decisions of the Supreme Court and of the Civil Service Commission, it appears that for an act of a public officer or employee to constitute Conduct Prejudicial to the Best Interest of the Service, ANY of the following requisites must be present:

a. Such unwarranted act of the respondent resulted in an undue prejudice to the best interest of the service;

b. The questioned conduct tarnished the image and integrity of his/her public office;

c. The respondent committed an act of dishonesty, e. g., misappropriating public funds or property; and

d. The respondent neglected the performance of his/her duty caused by absences/tardiness or joining prohibited mass actions (“strikes”).

It being obvious that the third and fourth requisites are not present in this case, respondent will limit her discussions only on the first two requisites.

In addition to her evidence and discussions in connection with the charge of

Grave Misconduct, respondent invites the kind attention of the Honorable Hearing Officer and of the Honorable Manager, GID to the following discussions.

a. The act with which respondent is presently charged was neither unwarranted nor did it result in an undue prejudice to the best interest of the service.

14

b. Respondent’s questioned conduct was not intended by her to tarnish the image and integrity of her public office.

The foregoing two issues being closely intertwined, they shall be discussed together hereunder.

To expedite the processing and satisfy the requests of GSIS members/pensioners who did not have cell phones through prompt and courteous service, upon the advice of Mr. . Lasala, respondent proceeded with the enrollment, encoding “11111111111” in the item “mobile phone”. However, the applicants for enrollment were advised to come back as soon as they could acquire cell phones or they know of the cell phone numbers of their relatives, friends or neighbors.

As earlier stated, if respondent relied on the advice of Mr. Lasala, it was because, being then the Acting Branch Information Technology Officer (ITO) of the GSIS Bohol Field Office who was likewise designated as the Supervisor On Call for the eCard Plus Enrollment Program, he was higher in rank than her. Besides, respondent believed in good faith that he knew whereof he spoke because he attended a seminar regarding the Biometrics Training (please see Exh. “10”).

The practice of encoding “11111111111” in the item “ mobile phone” then

became a common practice among respondent’s officemates performing the same task to enroll the pensioners without cell phone numbers. This was done to help the GSIS members/pensioners and at the same time to protect the GSIS from the issues against it as evidenced by the local newspaper articles alluded to above and to avoid harassment of the employees by the members’ frequent complaints. In his affidavit (Exh. “16”), Mr. Basa pertinently declared as follows:

8. That the public had mounting criticisms against GSIS in the implementation on the Ecard Plus to the point of threatening to sue us;

x x x

10. That the processors, could not decide on their own to inform the public that lack of cellphone number is a ground for the deferment of their application for fear of riot and verbal attacks from the GSIS members/pensioners especially those who have no cellphones;

Besides, there was no prior advisory on what to do or not do during enrollment in the case of members who did not have cell phones. In encoding “11111111111” in the item “ mobile phone”, respondent then did not have any knowledge that such act was prohibited. This was because, as earlier stated, during the implementation of the eCard Plus Enrollment Program, there were no guidelines from the higher authorities of the GSIS which were brought to her attention. And, it was only when she received the Formal Charge that, FOR THE FIRST TIME, she saw a copy thereof. Neither was she required to undergo seminars before she was made to participate in the enrollment under the Ecard plus. Although, as explained earlier, before she became a member of the several tasks force tasked with the enrollment of GSIS members/pensioners at the GSIS Bohol Field Office, she and her co-employees were already enrolled under the eCard Plus Enrollment System (Program), nevertheless their prior enrollment could not be of help because during that time there was NO SINGLE INCIDENT that they had a problem on what to do just in case an employee could not give a cell phone number for the simple reason that all of them have cell phones.

15

Considering that in encoding “11111111111” in the item “ mobile phone” of GSIS members/pensioners who did not have cell phones respondent did so upon the requests of the GSIS members/pensioners concerned and after she sought advice from Mr. Lasala, and the added fact that she did not know that doing so was prohibited, it is abundantly clear that respondent acted in good faith and without the least intent to violate any law or to disregard an established rule.

Consequently, it stands to reason that the act with which respondent is presently charged was neither unwarranted, because there were no guidelines from the higher authorities of the GSIS which were brought to her attention, nor did it result in an undue prejudice to the best interest of the service because, on the contrary, respondent did the act to help the GSIS members/pensioners and at the same time to protect the GSIS from the issues against it as evidenced by the local newspaper articles alluded to above and to avoid harassment of the employees by the members’ frequent complaints. (Please see Exh. “4” and Nos. 8 & 10 of the Affidavit of Mr. Basa marked as Exh. “16”).

Further, in his Letter-Explanation (Exh. “1”), Mr. Lasala explained as follows:

The suggestion was grounded on the following reasons:

1. In accordance with the common practice followed during the old eCard enrolment, when the applicant did not have any cellphone, the cellphone number of any member of the family or that of a neighbor was used;

2. There were instances, however, when the applicant did not know the cellphone number of any member of the family and/or neighbor, and/or no member of the family and/or neighbor owned any cellphone unit. In these instances, the processors were faced with a dilemma because when they entered the word “NONE” in the mobile phone field, the program would respond with an error message, “Invalid Mobile Phone,” for which the enrolment process could not be completed;

3. By trial and error, and with no available remedy left, the processors, with the assistance of the undersigned, tried to put a temporary number “00000000000” and/or “11111111111” to the computer data, and that was the only time that the enrolment data was successfully saved;

4. The use of said numbers, if we call it spurious, became the common practice in this Field Office and other Field Offices for that matter. Such practice was authorized by the TIM Company which made the program. Most importantly, such common practice was never ordered stopped by the Field Managers (bold italics, supplied);

x x x x x x

In view of the above EXPLANATION, the undersigned maintains that his suggestion of the use of the said numbers was made without malice and bad faith. Neither was it prompted by the ill-motive to alter the records of the GSIS and/or defraud the GSIS. Tampering with and corrupting the databases was never the objective of the undersigned. His only purpose was to facilitate the enrolment of GSIS applicants and to see to it that they would not be deprived of the right to enroll themselves in the eCard plus enrolment program simply because of their inability to buy a cellphone by reason of poverty and/or lack of education.

Mr. Lasala’s claim in his Letter-Explanation that “4. The use of said numbers, x x x , became the common practice in this Field Office and other Field Offices for that matter. Such practice was authorized by the TIM Company which made the program. Most importantly, such common practice was never ordered stopped by the Field Managers; “ appears to be supported by No. (a) of the enclosures of the Formal Charge which reads:

16

“a. Office memorandum dated 13 July 2007, addressed to the Manager, Investigation Unit, coming from the Office of the Senior Vice President, Field Operations Group, with the subject ‘USE OF 00000 AND OR 11111 IN PLACE OF ACTUAL CELL PHONE NUMBERS DURING ENROLLMENT OF ECARD PLUS’, including a list of names of GSIS employees from the different field offices in Baguio, Bataan, Batangas, Bohol, Butuan, Cagayan De Oro, Catbalogan, Cauayan, Dipolog, General Santos, Kidapawan, Laguna, Legazpi, Maasin, Naga, Pampanga, Quezon City, Sorsogon, Tarlac, and Tuguegarao.

There were a total of TWENTY ONE (21) branches of the GSIS and a total of FORTY EIGHT (48) employees who did the same act done by the respondent which is now the subject of the Formal Charge.

On her part, respondent explained that considering that she only has the basic knowledge of operating a computer, she did not entertain any doubt on the validity of the advice given to them by Mr. Lasala. Hence, she honestly believed that the data required under the item “mobile phone number” could be substituted with another data without adversely affecting the integrity of the database. This was specially so because at the time she did the act subject of the Formal Charge, she did not have any knowledge or information that, when she encoded “11111111111” on the item “mobile phone” of some members/pensioners who did not have cell phones in the enrollment database, said act was prohibited. And so, she then believed in good faith and in all honesty that by following the advice of the above-named Mr. Roy Chester S. Lasala, she was performing her duties within the bounds of law. Just like in the other instances previous to the May, 2007 incident that she followed the advices/suggestions given to her by her superiors in the office. And, without the necessity of having those advices reduced to writing. Or, having them later on approved in writing.

In following the advice of Mr. Lasala, respondent likewise believed in all good faith that she was helping the GSIS comply with its duty to the GSIS members/pensioners and at the same time achieved the intention of the eCard Plus Enrollment Program. Thus, attached to the Answer as Exh. “11” is the affidavit of Ms. Teodula A. Masapequena, a survivorship pensioner of Poblacion, Maribojoc, Bohol who was among those whom respondent had served and was quite contented with the quality of her services.

Resultantly, it is clear that respondent’s questioned conduct was not intended by her to tarnish the image and integrity of her public office.

DISPOSITIVE CONCLUSIONWith Prayer

At most, in encoding “11111111111” in the item “mobile phone” of some members/pensioners who did not have cell phones in the enrollment database, respondent only committed an honest mistake - a mere error of judgment which is not administratively sanctioned, such act being expected of human beings. As the trite saying goes – “To err is human x x x “.

Lest we be misunderstood, we are making it clear here that the respondent is not making a claim that she is entirely blameless. She is not making that claim because the truth is – she, just like her co-processors in the GSIS Bohol FO, committed a mistake. An honest mistake.

There is nothing in the evidence for the prosecution which could be the basis of even a suspicion that respondent acted with malice and with corrupt motive. Hence, it is

17

now therefore undisputed that in encoding “11111111111” on the item “mobile phone” as the cell phone number of some GSIS members/pensioners in the enrollment database, respondent acted without malice and without corrupt motive.

In criminal law, motive consists of the special or personal reason which may prompt or induce a person to perform the act constituting a crime. (Moreno, Philippine Law Dictionary, 3rd ed., p. 610). It is true that it is not indispensable to conviction x x x that the particular motive x x x shall be established at the trial, and that in general when the commission of the crime is clearly proven, conviction may and should follow even where the reason for its commission is unknown. But in many criminal cases, one of the most important aids in completing the proof of the commission of the crime by the accused is the introduction of evidence disclosing the motive which tempted the mind to indulge in the criminal act. (People vs. Montgomery Vidal, et al., July 5, 1999; US vs. Carlos, 15 Phil. 47, 51). Thus, in People vs. Modesto (25 SCRA 36, 46), the Supreme Court ruled that: “x x x In fact, no motive has even been intimated by the prosecution. We are thus ushered to the precept that ‘though proof of motive is not indispensable to conviction, yet a void in the evidence in this respect discloses a weakness in the case for the prosecution.’”

While it is true that Moreno’s definition of “motive” and the Supreme Court decisions cited above refer to criminal cases, considering, however, that herein respondent is charged with INTENTIONAL administrative offenses (thus, it is alleged in the Formal Charge “That x x x, respondent, without basis, WILLFULLY entered ‘11111111111’ x x x”), it is our considered view that the said definition and decisions likewise apply to the cases at bar.

It is now a settled rule that to justify the taking of drastic disciplinary action, the law requires that the error or mistake must be gross or patent, malicious, deliberate or in bad faith. (Ardos vs Luna-Pison, 378 SCRA 246; Tan Tioc Chiong vs. Cosico, 385 SCRA 509). Bad faith is not presumed and he who alleges the same has the onus of proving it. (Ibid., Sesbreño vs. Igonia, 480 SCRA 243; Donton vs. Loria, 484 SCRA 224). “Misconduct” implies a wrongful intention and not a mere error of judgment, corrupt, or inspired by an intention to violate the law or persistent disregard of well-known legal rules. (Cacatian vs. Liwanag, 417 SCRA 337).

At this juncture, we humbly ask – from the totality of the evidence of the prosecution and of the respondent are the charges against the respondent as contained in the Formal Charge supported by substantial evidence?

In answer to the foregoing question, and, although it now seems trite, there is still a need to revisit the settled jurisprudence that substantial evidence means more than a scintilla of relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable might opine otherwise. (Lansang vs. Garcia, L-33964, Dec. 11, 1971, 42 SCRA 480 [1971]). Considering therefore that from the foregoing discussions not even one of the requisites for the act of the respondent to be characterized as Grave Misconduct and/or Conduct Prejudicial To The Best Interest Of The Service is present, it is therefore clear that there is not even a slender thread of evidence against the respondent. Consequently, in this case, the quantum of evidence to support the requirement of substantial evidence in administrative cases has not therefore been satisfied.

Respondent earnestly prays that the proper GSIS authorities accord her with justice tempered with mercy. Presently, she is only 28 – single and in the prime of her youth. She loves her work and she needs it not only to support herself but also her ailing mother. She fervently hopes and prays that the tears she shed and the sleepless nights she suffered because of the above-captioned cases be not in vain and that the proper GSIS

18

authorities would still give her the opportunity to redeem herself and be of service to our people in general and to the GSIS in particular.

“HINIHILING PO NAMIN ANG INYONG PAUMANHIN AT PAUNAWA.” Respondent’s act not being done with malice or with ulterior motive, she places her trust in HIM whose patience and understanding is infinite. Respondent believes that there is a good GOD who is just.

Respondent and her undersigned counsel believe that Honorable CORAZON DLP. TANGLAO-DACANAY, the Hearing Officer and Honorable VIOLETA CF. QUINTOS, the Manager, GID are just, competent, and divinely guided. Being professionals bound by the Legal Ethics, it can be presumed that they would perform their duties in this case as such professionals.

IN VIEW OF ALL THE FOREGOING, respondent, by her undersigned counsel respectfully prays of Honorable CORAZON DLP. TANGLAO-DACANAY and of Honorable VIOLETA CF. QUINTOS and of the PROPER AUTHORITIES of the GSIS that the above-captioned case be DISMISSED and that respondent GLADYS JASMINE S. BONGATO be completely exonerated from the charges against her.

City of Tagbilaran (for Pasay City, Metro Manila), August 25, 2009.

RESPECTFULLY SUBMITTED:

UCAT LAW OFFICE90-12 Torero Private Road

Cogon District, City of TagbilaranTel. (038) 412 – 3895 (PLDT)

Counsel for the Respondent

BY:

ATTY. ANGEL S. UCAT, JR. IBP No. 711254– 12-24-08 PTR No. 5360676 – 01-05-09 Roll No. 17313 – 02-24-62

TIN 137-351-832 MCLE Compliance No. 1I – 0012908, dated Sept. 29, 2008

AT MY INSTANCE:

GLADYS JASMINE S. BONGATO Respondent

Copy furnished (By registered mail due to distance):

ATTY. SYLVIA HAZEL BISMONTE-BELTRANProsecutor, GSIS Investigation DepartmentLevel 2, GSIS Headquarters, Pasay City

19