Tirol Jr vs COA : 133954 : August 3, 2000 : C.J. Davide, Jr. : En Banc

EN BANC

[G.R. No. 133954. August 3, 2000]

VICTORIANO B. TIROL, JR. petitioner, vs. COMMISSION ON AUDIT, Region VIII, represented by its DIRECTOR, Leyte Government Center, Candahug, Palo, Leyte, respondent.

D E C I S I O N

DAVIDE, JR., C.J.:

In this petition for review on certiorari under Section 27 of R.A. No. 6770, otherwise known as the Ombudsman Act of 1989, in relation to Rule 45 of the Revised Rules of Court, petitioner seeks the reversal of the Resolution[1] of 20 March 1997 and the Order[2] of 5 March 1998 of the Office of the Ombudsman which, respectively, found petitioner and his co-respondents in OMB-Visayas-Crim-94-0836 criminally culpable for violation of Section 3(g) of R.A. No. 3019,[3] as amended, and denied petitioner’s motion for reconsideration of the said Resolution.

Petitioner is the incumbent Regional Director of the Department of Education, Culture and Sports (DECS), Region V. Prior to such assignment he was the DECS Regional Director of Region VIII. In the latter capacity, he and some officials of the Lalawigan National High School, Lalawigan, Borongan, Eastern Samar, were charged with the violation of Section 3(g) of Republic Act No. 3019, as amended, for entering into a contract alleged to be manifestly and grossly disadvantageous to the government. The charge originated from a complaint filed by the school’s Teachers and Employees Union alleging overpricing of various school equipment for the Lalawigan National High School. Specifically, petitioner’s participation consisted in approving the Requisition and Issue Voucher (RIV) and the check in connection with the transaction.

On the strength of the complaint, Region VIII of respondent Commission on Audit (COA) audited the operations and accounts of the Lalawigan National High School. The audit covered the period from 1 January 1990 to 30 April 1993.

Per the audit report,[4] COA found that there was malversation of public funds. It cited the purchase of certain supplies and equipment which was done through a negotiated contract and not through a competitive public bidding, contrary to COA Circular No. 85-55A. The circular requires public bidding in the purchase of supplies, materials and equipment in excess of P50,000, unless the law or agency charter provides otherwise. In the questioned purchase the agency failed to ascertain the reasonableness of the contract prices, resulting in an overprice of P35,100 in comparison with COA’s actual canvass of prices, thus:

Per Voucher

Per Canvass

Quantity	Description	Unit Price	Total Amount	Unit Price	Total Amount	Price Variance
2	Singer Sewing machine	P7,850	P15,700	P4,450	P8,900	P6,800
4	16" Hitachi / Union Coiling Fan	3,800	15,200	1,200	4,800	10,400
3	Molodione	3,675	11,025	1,850	5,550	5,475
2	Xylophone	1,750	3,500	560	1,120	2,380
2	Makita Electric Planer Model No. 19008 3 ¼ in. 82 mm	8,837.50	17,675	8,500	17,200	475
1	Makita Electric Circular Saw Model No. 5601 N 160 mm	16,900	16,900	7,330	7,330	9,570
TOTAL		P80,000			P44,900	P35,100

In its letter[5] to the Deputy Ombudsman for the Visayas, the COA recommended the filing of both criminal and administrative cases against the persons liable therefor, including petitioner for his approval of the RIV for the assailed purchase and signing of the check in payment therefor. This complaint was docketed as OMB-Visayas-Crim-94-0836.

In his counter-affidavit,[6] petitioner alleged that the aforesaid documents were previously reviewed by his subordinates. He approved them only upon the certification and representation of the said subordinates that everything was in order. Accordingly, his approval was purely a ministerial act.

In her Resolution of 20 March 1997,[7]Virginia Palanca Santiago, Graft Investigation Officer III of the Office of the Ombudsman-Visayas, rejected petitioner’s defense because had he carefully scrutinized the documents he would have discovered that the purchases were made without competitive public bidding and the magnitude of the amount involved would prevent a reasonable mind from accepting the claim that petitioner was merely careless or negligent in the performance of his functions.

Santiago gave credence to COA’s detailed report which clearly showed an overpriced value of the supplies and materials purchased, to the great disadvantage of the government. Had the proper bidding procedure been observed, no such damage would have occurred. Moreover, petitioner’s co-respondents did not dispute the charge of overpricing. Their main defense was that the purchase was emergency in nature. The Office of the Ombudsman-Visayas, however, ruled that emergency purchases could only refer to those which were urgent such that failure to make them would endanger the lives of the students. It held that the doubtful purchase did not qualify as an emergency purchase.

Accordingly, Santiago recommended that petitioner and his co-respondents be indicted for violation of Section 3(g) of R.A. No. 3019, as amended, for entering into a contract or transaction manifestly and grossly disadvantageous to the Government.

The Resolution was recommended for approval by Deputy Ombudsman for the Visayas, Arturo C. Mojica. Ombudsman Aniano A. Desierto approved the Resolution on 21 June 1997.

In an Information[8] filed with the Sandiganbayan and docketed as SB Criminal Case No. 23785,[9] petitioner and two other co-respondents were charged with the aforementioned offense allegedly committed as follows:

That on or about the 21st day of October, 1992, at Tacloban City, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, all public officers, having been appointed and qualified as such public positions above-mentioned, in such capacity and committing the offense in relation to office, conniving and confederating together and mutually helping with each other, with deliberate intent, did then and there willfully, unlawfully and feloniously enter into a transaction or contract for and in behalf of Lalawigan National High School, Lalawigan, Borongan, Eastern Samar, for the purchase of the following:

2 pcs.	Singer Sewing Machine	P 15,700.00
4 pcs.	16" Hitachi Union Ceiling Fan	15,200.00
3 pcs.	Meodione	11,025.00
2 pcs.	Xylophone	3,500.00
2 pcs.	Makita Elect. Planor Model No. 19008 3¼ in. 82 mm	17,675.00
1 pc.	Makita Elect. Circular Saw Model No. 5601 N 160 mm	16,900.00
	TOTAL	P 80,000.00

in the total amount of P80,000.00, Philippine Currency, with Fairchild Marketing and Construction, based at Tacloban City, without following the procedures of competitive public bidding as required by law, which transaction was manifestly and grossly disadvantageous to the government, particularly the Lalawigan National High School, as the value of above-mentioned items were overpriced in the total amount of P35,100.00, Philippine Currency, to the damage and prejudice of the government.[10]

Petitioner filed a Motion for Reconsideration[11] of the Resolution of the Office of the Ombudsman-Visayas. He insisted that his act of approving the RIV arose from the need of the requesting school, and matters pertaining to the price and mode of purchase were not yet considered at that stage. It was only after the approval of the RIV that these matters were deliberated upon, not by him, but by the officials of the requesting school. As to the check, he asserted that the supporting documents had been acted upon and approved by his subordinates and the concerned school officials, and since there was no indication of any patent irregularity, he signed the check. Finally, petitioner assailed the finding of conspiracy since there was no direct proof therefor other than a mere allegation imputing the same.

In the Order of 5 March 1998,[12] the Office of the Special Prosecutor recommended that petitioner’s Motion for Reconsideration be dismissed for lack of merit. The Ombudsman approved the recommendation on 22 May 1998.

Petitioner then filed the instant petition. In the meantime, the proceeding before the Sandiganbayan continued. Upon arraignment on 24 August 1998, petitioner’s co-accused pleaded not guilty to the offense charged. On 2 September 1998, petitioner filed a motion to reset the scheduled hearing on 17 and 18 September citing the pendency of the instant petition. The Sandiganbayan denied petitioner’s motion as well as his subsequent motion for reconsideration. Consequently, he filed a petition for certiorari under Rule 65 of the Rules of Court claiming that the Sandiganbayan gravely abused its discretion in denying his motions. That action, entitled Tirol v. Sandiganbayan and docketed as G.R. No. 135913, was decided on 4 November 1999 adversely against petitioner.

In the instant petition, petitioner seeks the reversal of the assailed Resolution and Order of the Office of the Ombudsman, which, according to him, erred in concluding that he was culpably liable for alleged overpricing of the questioned purchase of supplies and materials. He argues that the acts directly resulting in the overprice were committed by the following officials: (1) co-respondent Conchita C. Devora, Principal 1, who approved the transaction, countersigned the checks and requisitioned the items; (2) co-respondent Maria A. Alvero, Bookkeeper, who affixed her signature in the voucher; and (3) Salome G. Germana, Designated Storekeeper, who signed Box No. 4 of the voucher. His participation was limited to signing the RIV and the check as a matter of routine. Moreover, the RIV did not involve the determination of the price of the supplies and materials to be purchased, and his signing the check was done in compliance with the DECS policy which limited the signing authority of the principal, Conchita C. Devora, to checks not exceeding P50,000. In such case the signing authority was vested in him as the DECS Regional Director.

In maintaining his innocence, petitioner asserts that the presumption of regularity in the performance of public functions by public officers should apply in his favor. He had no ground to doubt the preparation, processing and verification of his subordinates prior to his act of approving the RIV and signing the check. His position required the signing of voluminous documents and it would be unreasonably cumbersome if he were to scrutinize every document that required his signature.

In support of his arguments, petitioner cites the cases of Arias v. Sandiganbayan[13] and Magsuci v. Sandiganbayan,[14] where this Court held that heads of office may rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies or enter into negotiations. He likewise disputes the allegation of conspiracy for the acts imputed against him were functions discharged in the performance of his official duty. He did not overstep or exceed said functions. For conspiracy to exist, it is essential that there must be a conscious design to commit an offense.

In the Comment for the public respondent, the Office of the Solicitor General contends that conspiracy need not be proved by direct evidence; it may be established by circumstantial evidence. It avers that what prevails in the instant case is a conspiracy of silence and inaction. Petitioner should have been vigilant in protecting the interest of the government. The magnitude of the amount involved should have cautioned him to verify the truthfulness of the documents presented for his signature. Petitioner ignored this telling warning and in so doing he was guilty of negligence. His reliance on his subordinates is no excuse, otherwise his position would be a mere rubber stamp for the said subordinates.

As a final argument, the Office of the Solicitor General asseverates that it is beyond the ambit of this Court’s authority to review the power of the Ombudsman in prosecuting or dismissing a complaint filed before it. The Ombudsman is constitutionally mandated to investigate and prosecute matters falling within his jurisdiction.

In his Reply petitioner states that the nature of the petition does not involve a review of the factual finding of the Office of the Ombudsman but rather its conclusion based on undisputed facts. The issue is a question of law and may, therefore, be reviewed by this Court.

A meticulous review and re-evaluation of the pleadings in this case, as well as G.R. No. 135913 leads this Court to a conclusion unfavorable to petitioner.

Petitioner is indicted for violation of Section 3(g) of R.A. No. 3019, which provides:

Section 3. Corrupt Practices of Public Officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

xxx

(g) Entering into a contract or transaction manifestly and grossly disadvantageous to the government.

There is no dispute that the Office of the Ombudsman included him as a respondent because of his participation in signing the RIV and issuing a check pertaining to the questioned purchase. Whether, on the one hand, the said acts were done in good faith as to exonerate him from any liability, and on the other, whether there was conspiracy among petitioner and his co-respondents, involve questions of fact. These are matters of evidence to be weighed and appreciated by the Sandiganbayan, which has original exclusive jurisdiction over the case.[15]

Only questions of law may be appealed to us by way of certiorari. This Court is not ordinarily a trier of facts, its jurisdiction being limited to errors of law. There is a question of law in any given case when the doubt or difference arises as to what the law is on a certain state of facts. A question of fact arises when the doubt or difference arises as to the truth or falsehood of alleged facts.[16]

From the pleadings it is clear to this Court that, contrary to the representations of petitioner, what he wants us to do is review the evidence and determine whether in fact he acted in good faith and that no conspiracy existed among the accused.

The rulings in Arias v. Sandiganbayan[17] and Magsuci v. Sandiganbayan[18] are inapplicable to petitioner. It must be emphasized that the petitioners therein were indicted and submitted themselves to trial before the Sandiganbayan, which convicted them of the offenses charged. In short the Sandiganbayan had, in due course, received the evidence of the parties and weighed its probative value. Unsatisfied with the findings of fact and conclusion of law of the Sandiganbayan, petitioners therein appealed to this Court.

In Arias this Court set aside the judgment against the petitioner because there was no evidence that the Government suffered undue injury. As stated by the Solicitor General which recommended Arias’ acquittal, (a) the "P80.00 per square meter acquisition cost is just, fair and reasonable," and (b) "the prosecution likewise has not shown any positive and convincing evidence of conspiracy between the petitioners and their co-accused."

In Magsuci, the reversal by this Court of the judgment of conviction was based on a finding that Magsuci acted in good faith and that "there has been no intimation at all that he had foreknowledge of any irregularity committed by either or both Engr. Enriquez and Acla."

In both Arias and Magsuci, there was paucity of evidence on conspiracy.

In this case, there is only the claim of petitioner that he had acted in good faith and that there was no conspiracy. The Ombudsman believes otherwise. It is settled that this Court ordinarily does not interfere with the discretion of the Ombudsman to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts.[19] This rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise the functions of the courts will be grievously hampered by immeasurable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the of the Ombudsman with regard to complaints filed before it, in as much the same way that the courts would be extremely swamped if they would be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant.[20]

Petitioner has not convinced this Court that his case falls within any of the exemptions, enumerated in Brocka v. Enrile,[21] to the rule that criminal prosecution may not be restrained either through a preliminary or final injunction or a writ of prohibition.

There is yet another basic reason for dismissing the instant petition. This is an appeal under Section 27 of the Ombudsman Act of 1989 in relation to Rule 45 of the 1997 Rules of Civil Procedure. We have declared Section 27 to be unconstitutional in Fabian v. Desierto[22] for increasing the appellate jurisdiction of the Supreme Court as provided in the Constitution without its advice and consent. Moreover, even if said provision had not been declared unconstitutional, it still does not grant a right of appeal to parties aggrieved by orders and decisions of the Ombudsman in criminal cases[23] as in fact said Section mentions only appeals from "all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman."

Even if we were to brush aside technicality – which action we would ordinarily reserve for cases having transcendental importance to the public[24] – and considered the instant petition one for certiorari under Rule 65 of the Rules of Court, it would still suffer from a failure to denominate the proper party. A petition for certiorari under Rule 65 has for its object the review of an action of a tribunal, board or officer exercising quasi-judicial functions made without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction. In the instant petition, the tribunal whose action is sought to be reviewed is the Office of the Ombudsman yet, petitioner impleaded the Commission on Audit as respondent, and not the Office of the Ombudsman.

Additionally, the totality of petitioner’s and his counsel’s acts, including that in the other case he filed with us in G.R. No. 135913,[25] manifests a scheme to frustrate the ends of justice by using court procedures to delay the resolution of a pending case. It is with much regret that we must reiterate to petitioner’s counsel our command laid down some thirty years ago that a lawyer, as an officer of the court, should never induce a court to act contrary to the dictates of justice and equity nor should he befuddle the issues. These and similar maneuvers are not only unethical, they also almost always betray the weakness of the client’s cause.[26]

The actions filed by petitioner before this Court, specifically G.R. No. 135913 and the instant petition, were in fact a modified form of forum shopping. Perhaps realizing that this instant petition could be dismissed in light of Fabian, which was promulgated on 16 September 1998, petitioner instituted GR. No. 135913 on 3 November 1998. The two petitions could have created havoc to the judicial system had petitioner succeeded with his ploy. Petitioner’s counsel is hereby warned that a repetition of his dilatory tactics or some other similar scheme to thwart justice will be dealt with more severely.

WHEREFORE, the petition for certiorari in this case is hereby DENIED and the Resolution of 20 March 1997 and Order of 5 March 1998 of the Office of the Ombudsman in OMB-Visayas-Crim-94-0836 are AFFIRMED.

Double costs against petitioner.

SO ORDERED.

Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

Bellosillo, J., on official leave.

[3] Also known as the Anti-Graft and Corrupt Practices Act.

[9] Entitled, People of the Philippines v. Victoriano B. Tirol, Jr., Director III of the Department of Culture, Education and Sports, Region VIII now designated at DECS, Region V, Legaspi City), Conchita C. Devora, Secondary School Principal I, Maria A. Alvero, Bookkeeper, all of Lalawigan National High School, Lalawigan, Borongan, Eastern Samar.

[15] Presidential Decree No. 1861, Section 4; Republic v. Asuncion, 231 SCRA 211, 228 (1994); Subido, Jr. v. Sandiganbayan, 266 SCRA 379, 387, 388 (1997)

[16] Ramos v. Pepsi-Cola Bottling Co. of the P. I., 19 SCRA 289, 292 (1987); Commissioner of Internal Revenue v. Court of Appeals, 298 SCRA 83, 91 (1998); Dela Torre v. Pepsi Cola Products Phils., Inc., 298 SCRA 363, 373 (1998)

[19] Ocampo IV v. Ombudsman, 225 SCRA 725, 730 (1993); Cruz, Jr. v. People, 233 SCRA 439, 459 (1994); Paredes, Jr. v. Sandiganbayan, 252 SCRA 641, 659-660 (1996); Alba v. Nitorreda, 254 SCRA 753, 765 (1996)

[21] 192 SCRA 183, 188-189 (1990). See also Venus v. Desierto, 298 SCRA 196, 214-215 (1998)

[23] Tirol v. Sandiganbayan, G.R. No. 135913, 4 November 1999.

[24] See for example Santiago v. COMELEC, 270 SCRA 106, 134-135 (1997)

[26] Lim Tanhu v. Remolete, 66 SCRA 425 (1975); Ledesma Overseas Shipping Corp. v. Avelino, 82 SCRA 396 (1978); Ruben Agpalo, Legal Ethics (Fourth ed., 1989), 124-125.