[G.R. No. 120704. March 3, 1997]

HON. BARTOLOME C. CARALE, Chairman, National Labor Relations Commission (NLRC), HON. IRENEA A. CENIZA, Presiding Commissioner, Fourth Division, NLRC, and HON. REYNOSO A. BELARMINO, Executive Labor Arbiter, Regional Arbitration Branch, Region VII, petitioners, vs. HON. PAMPIO A. ABARINTOS, Presiding Judge, Regional Trial Court, Branch 22, Cebu City, and FERDINAND V. PONTEJOS, respondents.



Did respondent Judge Pampio A. Abarintos commit grave abuse of discretion amounting to lack or excess of jurisdiction when he: (1) denied the petitioners motions to dismiss the complaint filed by respondent Ferdinand V. Pontejos (hereinafter PONTEJOS) to declare null and void an Administrative Order of petitioner Carale, as Chairman of the National Labor Relations Commission (NLRC) (hereinafter CARALE), detailing Pontejos to the Fourth Division of the NLRC in Cebu City; and the motion to reconsider the order of denial; and then (2) granted the application for a writ of preliminary injunction?

This is the key issue raised in this petition.

The relevant factual antecedents summarized in the petition are as follows:

9. Private respondent Pontejos was issued an original and permanent appointment dated January 10, 1989 as Labor and Employment Development Officer (RAB VII) in the National Labor Relations Commission with a salary of P36,864.00 per annum under Title No. 211-10 of the Appropriations Act R.A. 6642. In 1992, the aforesaid position was reclassified as Labor Arbitration Associate with compensation of P99,000.00 per annum or rank at salary grade 22, retroactive to June 30, 1989. Private respondent holds this position up to the present.

10.On 03 October 1994, petitioner Chairman of the NLRC, issued Administrative Order No. 10-03 series of 1994, detailing/reassigning private respondent to the NLRC, Fourth Division, Cebu City, effective October 17, 1994. Said Order reads:


(Series of 1994)

In the interest of the service, Mr. Ferdinand Pontejos, Labor Arbitration Branch No. VII, is hereby detailed to the Fourth Division, Cebu City, effective October 17, 1994, until further orders from the undersigned.

Mr. Pontejos is directed to wind up his pending work and thereafter report to the Presiding Commissioner Irene E. Ceniza for instruction regarding his new assignment.

Manila, October 3, 1994.



11.Similar personnel actions, prior to and after Pontejos reassignment to NLRC, Cebu City, were also effected by petitioner Carale pursuant to his exercise of administrative authority and supervision over all NLRC officials and employees....

12.On 24 October 1994, private respondent filed a complaint before the Regional Trial Court of Cebu City against herein petitioners for Illegal Transfer Tantamount To Removal Without Cause In Gross Violation Of The Security Of Tenure Afforded Under The Constitution And In Utter Disregard Of The Civil Service Rules and Regulations, Republic Act 6715, with Prayer For The Issuance Of A Writ Of Preliminary Injunction and/or Preliminary Mandatory Injunction With Damages. The case was docketed as Civil Case No. CEB-16671....

13.Motions to dismiss dated November 8, 1994 and November 15, 1994, were respectively filed by petitioner Ceniza and Carale, arguing that it is the Civil Service Commission which has exclusive jurisdiction over any question concerning personnel movement....

14.A Supplemental Motion to Dismiss dated November 21, 1994 was filed by petitioner Belarmino arguing that the questioned administrative order is in the nature of a detail and the civil service employee who is not satisfied with or aggrieved by such detail may appeal the matter before the Civil Service Commission....

15.On December 20, 1994, respondent judge issued the first questioned order denying petitioners Motions to Dismiss holding that alleged non-exhaustion of administrative remedies before where the surrounding circumstances of the matter before this Court indicate an urgency of judicial intervention....

16.In the same Order, respondent judge also granted the prayer for preliminary injunction restraining petitioners from implementing the transfer order....

17.A motion for reconsideration dated January 9, 1995 was filed by petitioner Belarmino which was denied in the second questioned order dated February 7, 1995....

18.On 06 March 1995, Jeoffrey S. Joaquino, Clerk of Court VII, pursuant to respondent judges order dated December 20, 1994, issued a writ of injunction enjoining herein petitioners from unduly interfering with and/or obstructing private respondent Pontejos lawful discharge of his duties and functions as such Labor Arbitration Associate, until further orders from respondent judge. The writ of injunction was received by petitioner Carale on March 21, 1995....[1]

Pontejos complaint in Civil Case No. CEB-16671 suggested that the uncordial relationship between himself, as president of the Unified Employees Union of the NLRC, RAB VII, and Chairman of the NLRC-RAB-VII Multi-Purpose Cooperative, and petitioners Presiding Commissioner Ceniza and Executive Labor Arbiter Belarmino, against whom the petitioner had earlier filed a petition for certiorari with this Court and a complaint for harassment and intimidation, respectively, had something to do with his detail to the Fourth Division of the NLRC. Pontejos alleged as there was no position of Labor Arbitration Associate in that Division, the detail order was maliciously resorted to as a scheme to lure [him] away from his permanent position, thereby violating his security of tenure; and described it as an act of vindictiveness against him and was patently illegal, malicious, arbitrary and an exercise of grave abuse of discretion in excess of jurisdiction.[2] To justify his direct resort to the court, Pontejos alleged that [t]here is no other available and speedy remedy in order to protect [his] interest than to resort to this Honorable Court; that the urgency of judicial intervention is an exception to the rule of exhaustion of administrative remedies,[3] not to mention the fact that the administrative act in question is patently illegal.[4] To support his application for a writ of preliminary injunction and/or restraining [order], Pontejos alleged that:

11.[He] is entitled to the relief demanded and the whole or part of such relief consists in RESTRAINING OR PREVENTING the defendants, their agents and all persons acting for or in their behalf, from enforcing and implementing the questioned Administrative Order No. 10-03, Series of 1994;

12.The commission of the continuance of the acts complained of during the litigation or the non-performance thereof, could probably work grave injustice to the plaintiff ... so that the defendants ... must be enjoined by a restraining order from implementing and/or enforcing the ... questioned Administrative Order;

13.[He] is willing to post a bond executed to he defendants enjoined, in an amount to be fixed by the court, to the effect that [he] will pay to such party all damages which they [sic] may sustain by reason of the injunction if the court should finally decide that the plaintiff is not entitled thereto.[5]

Pontejos further asserted that the petitioners had acted with gross and evident bad faith, and by their conduct, have violated all forms of good human conduct and dealings and did not exhibit any degree of good faith, honesty and propriety, as a consequence of which he has suffered mental anxiety, sleepless nights, wounded feelings and moral shock; and had displayed anti-social acts and conduct, contrary to the tenents [sic] enunciated in the Preliminary Title in Human relations found in Articles 19 and 20 of the Civil Code of the Philippines. On account thereof, he prayed for the award of P100,000.00 as moral damages; P50,000.00 as exemplary damages; P30,000.00 as attorneys fees; and P5,000.00 as litigation expenses.[6]

In the challenged order of 20 December 1994, the trial court, in dismissing the petitioners motions to dismiss, ruled that the only effect of non-compliance with the rule on exhaustion of administrative remedies is that it will deprive the complainant of a cause of action; it does not affect the jurisdiction of the court. Since the factual allegations of the complaint satisfactorily meet the test of sufficiency of the complaint insofar as cause of action is concerned, the complaint was not dismissible.

In the challenged resolution of 7 February 1995 denying the petitioners motion to reconsider the order of 20 December 1994, the trial court further held that the case before it fell within one of the exceptions to the rule on exhaustion of administrative remedies, namely, where the question to be settled is whether the controverted act of respondent Commissioner Carale was performed with grave abuse of discretion.[7]

In this special civil action for certiorari, the petitioners assert that:







As to the first ground, the petitioners maintain that being a permanent civil service employee, Pontejos is subject to civil service laws and regulations pursuant to Subsection 1(1), Section 8-B, Article IX-A of the Constitution. His grievance concerning Carales administrative order detailing him to the Fourth Division of the NLRC should have been raised in an appropriate complaint before the Merit Systems and Protection Board (MSPB) created under P.D. No. 1409, whose functions, pursuant to Civil Service Commission (CSC) Resolution No. 93-2387, have been transferred directly to the CSC itself. The petitioners further claim that there is no factual or legal basis indicative of the urgency of judicial intervention to justify the trial courts assumption of jurisdiction over this case and to order the issuance of the questioned writ of preliminary injunction.

Anent the second ground, the petitioners, citing Veterans Manpower and Protective Service, Inc. v. Court of Appeals,[8] submit that Pontejos complaint, which asked for a writ of injunction and damages, is in effect a suit against the State without its consent, hence, the petitioners, who are all public officials, are immune from such suit.

In support of the third ground, the petitioners alleged that all throughout the proceedings before the trial court, the petitioners were not represented by their statutory counsel, the Solicitor General, whose authority is mandated under P.D. No. 478, the magna carta of the Office of the Solicitor General (OSG).[9] Consequently, the questioned orders and the writ of preliminary injunction were invalid.

In the 26 July 1995 resolution, we required the respondents to comment on the petition and issued a temporary restraining order, effective as of the said date, which enjoined the respondents from enforcing the orders of 20 December 1994 and 7 February 1995 issued in Civil Case No. CEB-16671.

We resolved to give due course to the petition and required the parties to submit their respective memoranda. However, only Pontejos complied, the Office of the Solicitor General failing to despite two extensions of time. We denied on 20 November 1996 its third motion for extension of time to file its Memorandum.

We find merit in the petition, but not necessarily on strength of the grounds raised.

The primary issue in this special civil action, as stated in the opening paragraph of this ponencia, is whether the respondent Judge acted with grave abuse of discretion amounting to lack of jurisdiction when he denied the motions to dismiss and the motion for reconsideration, and granted the application for a writ of preliminary injunction to enjoin the petitioners from implementing or enforcing Carales Administrative Order 10-03, Series of 1994.


The motions to dismiss separately filed in the trial court by petitioners Carale and Presiding Commissioner Ceniza were principally anchored on lack of jurisdiction due to the failure of Pontejos to exhaust administrative remedies. Obviously, the petitioners failed to appreciate that non-exhaustion of administrative remedies is not jurisdictional. It only renders the action premature, i.e., the claimed cause of action is not ripe for judicial determination and for that reason a party has no cause of action to ventilate in court.[10] Their motions to dismiss must then be understood to be based on: (a) lack of jurisdiction; and (b) lack of cause of action for failure to exhaust administrative remedies.

Observance of the mandate regarding exhaustion of administrative remedies is a sound practice and policy. It ensures an orderly procedure which favors a preliminary sifting process, particularly with respect to matters peculiarly within the competence of the administrative agency, avoidance of interference with functions of the administrative agency by withholding judicial action until the administrative process had run its course, and prevention of attempts to swamp the courts by a resort to them in the first instance.[11] The underlying principle of the rule rests on the presumption that the administrative agency, if afforded a complete chance to pass upon the matter, will decide the same correctly.[12] There are both legal and practical reasons for this principle. The administrative process is intended to provide less expensive and more speedy solutions to disputes. Where the enabling statute indicates a procedure for administrative review, and provides a system of administrative appeal, or reconsideration, the courts, for reasons of law, comity and convenience, will not entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given an opportunity to act and correct the errors committed in the administrative forum.[13]

Accordingly, the party with an administrative remedy must not merely initiate the prescribed administrative procedure to obtain relief, but also pursue it to its appropriate conclusion before seeking judicial intervention in order to give the administrative agency an opportunity to decide the matter by itself correctly and prevent unnecessary and premature resort to the court.[14]

In the instant case, Pontejos did not attempt to seek administrative relief, which was both available and sufficient. Initially, he could have asked for reconsideration of the detail order, failing which, he could have gone directly to the CSC, through the MSPB, which is empowered to:

(2) Hear and decide cases brought before it by offices and employees who feel aggrieved by the determination of appointing authorities involving ... transfer, detail, reassignment and other personnel actions, as well as complaints against any officers in the government arising from personnel actions of these officers or from violations of the merit system....[15]

Nothing in the complaint in Civil Case No. CEB-16671 convinces us that Pontejos ever thought of pursuing the available administrative remedies. Neither do we find sufficient basis for his invocation of the exception to the rule on exhaustion of administrative remedies. What he offered were nothing but vague and general averments that could best qualify as motherhood statements. Further, they were unsupported by allegations of fact or law which would prima facie bring his case within any of the accepted exceptions to the rule, namely: (1) where the question is purely legal, (2) where judicial intervention is urgent, (3) when its application may cause great and irreparable damage, (4) where the controverted acts violate due process, (5) failure of a high government official from whom relief is sought to act on the matter, and (6) when the issue of non-exhaustion of administrative remedies has been rendered moot.[16]


We do not likewise hesitate to rule that the respondent Judge committed grave abuse of discretion when he granted the application for a writ of preliminary injunction without any notice of hearing. The rule on preliminary injunction plainly provides that it cannot be granted without notice to the defendant. Section 5, Rule 58 of the Rules of Court states, in part, as follows:

SEC. 5. Preliminary injunction not granted without notice. -- No preliminary injunction shall be granted without notice to the defendant. If it shall appear from the facts shown by affidavits or by verified complaint that great or irreparable injury would result to the applicant before the matter could be heard on notice, the judge to whom the application for preliminary injunction was made, may issue a restraining order to be effective only for a period of twenty days from date of issuance. Within the said twenty-day period, the judge must cause an order to be served on the defendant, requiring him to show cause, at a specified time and place, why the injunction should not be granted, and determine within the same period whether or not the preliminary injunction shall be granted and shall accordingly issue the corresponding order.... (underscoring supplied for emphasis)

WHEREFORE, the instant petition is GRANTED. The assailed orders of 20 December 1994 and 7 February 1995 in Civil Case No. CEB-16671 of Branch 22 of the Regional Trial Court of Cebu City, entitled Ferdinand V. Pontejos v. Hon. Bartolome C. Carale, et al., are hereby ANNULLED and SET ASIDE and respondent Judge Pampio A. Abarintos is hereby directed to forthwith issue an order DISMISSING the said case.


Narvasa, C.J., (Chairman), Melo, Francisco, and Panganiban, JJ., concur.

[1] Rollo, 6-9.

[2] Id., 53-55.

[3] Citing Aquino v. Luntok, 184 SCRA 177 [1990].

[4] Citing Silliman University v. Benarao, 182 SCRA 573 [1990]; Rollo, 56.

[5] Id., 56-57.

[6] Rollo, 57-58.

[7] Id., 30.

[8] 214 SCRA 287 [1992].

[9] Section 8 thereof provides:

SECTION 1. Functions and Organization. (1) The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer. When authorized by the President or head of the office concerned, it shall also represent government owned or controlled corporations. The Office of the Solicitor General shall constitute the law office of the Government and, as such, shall discharge duties requiring the service of a lawyer.

x x x

The same powers and functions are provided in Section 35, Chapter 12, Title III, Book IV of the Administrative of 1987.

[10] Pestanas v. Dyogi, 81 SCRA 574, 581 [1978]; Aboitiz & Co. v. Collector of Customs, 83 SCRA 265, 272 [1978]; Abe-abe v. Manta, 90 SCRA 524, 531[1979].

[11] Antonio v. Tanco, 65 SCRA 448, 454 [1975]; Abe-abe v. Manta, supra note 10, at 532.

[12] De los Santos v. Limbaga, 4 SCRA 224, 226 [1962].

[13] IRENE R. CORTES, Philippine Administrative Law, Cases and Materials [Rev. 2nd Ed., 1984] 394; Teotico v. Agda, 197 SCRA 675, 693 [1991].

[14] Cruz v. Del Rosario, 9 SCRA 755, 758 [1963]; Ledesma v. Opinion, 14 SCRA 973, 976 [1965]; Manuel v. Jimenez, 17 SCRA 55, 57 [1966].

[15] Section 5, P.D. No. 1409. Personnel action is an action denoting the movement or progress of personnel in the civil service and includes appointment through certification, re-employment, detail, reassignment, demotion and separation (Section 26, Chapter 5, Subtitle A, Title I, Book V, E.O. No. 292 [Administrative Code of 1987]).

[16] See SEVERIANO S. TABIOS, Annotation on Failure to Exhaust Administrative Remedies as a Ground for Motion To Dismiss, 165 SCRA 352, 357-362 [1988].