FIRST
DIVISION
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VADM. Petitioner, - versus
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Respondents. |
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G.R. No. 159949 Present: PANGANIBAN, C.J. Chairperson, YNARES-SANTIAGO, AUSTRIA-MARTINEZ, CHICO-NAZARIO,
JJ. Promulgated: February 27, 2006 |
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CHICO-NAZARIO, J.:
This
special civil action for certiorari
under Rule 65 of the Rules of Court seeks to annul and set aside the order[1]
dated
The
instant petition appears to have originated from the special audits conducted by
the Commission on Audit (
The
findings of the
In
SAO Report No. 94-98,[6] the
audit team made the following findings and observations, viz:
1. Funds obligated in 1984
and 1985 amounting to P153,497,882.40 intended for payment of previous
year’s accounts payable were used to pay transactions incurred in 1990 and 1991
amounting to P85,854,775.50; and to cover check payments made in 1992 in
the amount of P67,643,106.90 in violation of Sec. 85 of PD 1445. Moreover, these funds were not reverted to
the unappropriated surplus of the General Fund of the
National government in violation of Sec. 33 of PD 1177.
2. Check payments amounting
to P67,643,106.95 charged against Journal Voucher No. 3159289 dated
3.a Procurement of items
costing more than P50,000 were not made through public bidding, in
violation of COA Circular No. 85-55A.
Instead, purchases worth P55,537,282.23 were made through emergency
purchase although the items were not urgently needed or absolutely
indispensable to prevent immediate danger to, or loss of life or property or to
avoid detriment to the public service.
As a result, purchase price of at least 131 items of medicines, medical
supplies, office and construction supplies in the amount of P10,000,709.00
exceeded the prevailing market price by P6,146,444.29; the excess prices
ranging from 4.90% to 1,071.25% per item.
Comparison of Purchase Orders revealed a price difference of P356,690.20
on similar items procured by the command.
3.b Alterations were noted in
the dates of Sales Invoices, Purchase Orders, Requisition and Issue Vouchers (RIVs) and other documents for paid purchases amounting to P19,949,884.50. Moreover, two suppliers who purportedly
participated in the canvass as shown in the Canvass Proposals for puchases amounting to P17,692,829.07 denied having
quoted the prices indicated in the canvass form nor participated in the
canvass.
3.c Purchases of medicines and
medical supplies in 1990 and 1991 worth P53,998,124.00 were not
accounted for. Moreover, the alleged
deliveries of medicines and medical supplies at Cavite
Naval Hospital and at the Office of the Chief Surgeon amounting to P16,195,519.87
and P23,879,397.00, respectively, were in excess of the normal
three-month supply requirement of these offices, in violation of COA Circular
No. 85-55A dated September 8, 1985.
3.d Construction and
asphalting materials amounting to P31,269,562.66 could not be accounted
for. No documents could be presented by
the concerned officials to show that these materials were actually received by
the Phil. Navy units nor were they able to pinpoint the exact location of the
projects where these materials were used.
Moreover, no approved program of work were submitted for these projects
contrary to the Implementing Rules and Regulations of PD 1594. These purchases were made through the
Emergency mode of procurement and no bidding was conducted in violation of COA
Cir. No. 85-55A dated
3.e Deliveries of
construction materials and supplies used at the Subic
Command totaling P10.4M could not be validated since delivery receipts
furnished by the command did not indicate the Sales Invoice to which these
pertains; and most DR’s were not acknowledged by the recipients. Furthermore, the former SUBCOM Supply
Accountable Officer certified that the signatures on the documents in support
of claims amounting to P3.2M were not genuine signatures. Lastly, P9.3M worth of these
construction materials as well as those used at Naval District I in P1,093,910 were
purchased in Metro Manila instead of within the locality of Zambales
and La Union, in violation of Section 11 of PD 1342.
3.f Office and construction
materials worth P12M were substituted with office equipments and
supplies and lesser quantity of construction materials without any amendment or
changes in the Purchase Orders.
Furthermore, items worth P4,498,710.00 were delivered beyond the
prescribed date of delivery but liquidated damages amounting to P895,947
was not deducted from the payments made to supplier for items purchased, in
violation of Provision III CI.7 of the Implementing Rules and Regulations of PD
1594.
3.g The validity of the
purchase of various supplies and materials and vehicle/ship spare parts worth P6.88M
was not established due to absence of pertinent supporting documents or
submission of documents of doubtful authenticity, in violation of Section 4(6)
of PD No. 1445.
3.h Spare parts amounting to
P886,000 were purchased from a supplier who did not quote the lowest price;
with a price difference (from that of the lowest bidder) of P85,750. Moreover
an overpayment of P13,180 was noted in at least five claims due to erroneous
computations. Further, it was noted that
hospital supplies amounting to P999,741 were paid in 1992 but the Sales Invoice
attached was dated
3.i Medicines, medical supplies, construction materials, and office supplies delivered were not subjected to quality test, in violation of Sec. 481 of the Government Accounting and Auditing Manual (GAAM). Moreover, no report of inspection of medicines delivered were submitted to COA within 24 hours as required under COA Cir. No. 89-299-A and SEC. 465 of GAAM.
3.j The Certification of
Availability of Fund on the Purchase Orders dated April to August 1990 in the
total amount of P10,560,830.00 were signed by an unauthorized official.
4.a Four suppliers who
transacted business at HPN for supply of items worth P47,381,428.50
could not be found at their reported business addresses; casting doubt on the
legitimacy of the transaction.
4.b Purchase Orders amounting
to P54,398,743.56 were split to avoid review and approval of higher
authorities in violation of COA Cir. No. 76-41 dated P1,050,740 were not
acknowledged by the Supplier contrary to the provisions of COA Cir. No. 78-84 dated
5.a Twenty-two checks
totaling P18,860,945.64 issued on
5.b Checks amounting to P26,304,180.70
were dated one day to six months prior to the processing of the related
disbursement vouchers, indicative that checks were prepared and issued without
the duly processed and approved vouchers in violation of Sec. 4(b) of PD 1445.[7]
Resident Ombudsman for the Department of National Defense,
Atty.
The ODOM prosecutors conducted the preliminary
investigation. The case was docketed as OMB-4-97-0965. In a resolution dated
In a memorandum dated
After conducting the preliminary investigation and reinvestigation
of the case, SPO Linco, in a memorandum dated 12
December 2001, recommended that petitioner, among other respondents in
OMB-4-97-0965, be indicted for 170 counts of violation of Section 3(e),
Republic Act No. 3019, 21 counts of Malversation of
Public Funds Thru Falsification of Public Documents and one count of violation
of Section 4(a) of Rep. Act 6713.
Ombudsman Desierto approved the recommendation
and accordingly, informations were filed before the Sandiganbayan. The
cases were docketed as Criminal Case Nos. 27234-27429 and were raffled to the
third division thereof.
Petitioner filed a motion for reconsideration or
reinvestigation before the Sandiganbayan which was
granted by the said court.
In an order dated
The
recommended dismissal of the charges against respondents VAdm.
Dumangcas, et al. is denied, while the implied
recommended continuation of the prosecution of respondents Capt. Batestil, et al. is approved. Otherwise stated, the Resolution dated
Aggrieved, petitioner filed a motion for reconsideration. The
said motion was denied in an order dated
Hence, the instant petition.
The sole issue in this petition is whether or not the Ombudsman
has acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in setting aside the recommendation of SPO Cicero D. Jurado, Jr. to dismiss the charges against petitioner in
Criminal Case Nos. 27234-27429.
Petitioner contends that the Ombudsman committed grave
abuse of discretion in finding probable cause against him. He asserts that there exists no probable cause
to indict him as shown by the foregoing proceedings: first, in a case filed in
OMB-4-97-0965 involving P53 million, the same was dismissed by the Office of
the Ombudsman on the ground that the COA auditors made the admission that an
error was committed in the conduct of their audit; second, in Criminal Case Nos. 25362-25385 (another separate
cases filed before the Sandiganbayan), the charges
against him were dropped as there was no probable cause to include him in the
said cases. Petitioner argues that since
the foregoing proceedings were based on SAO Report No. 92-128 in the same
manner as the instant indictments, then to hold him liable of the latter is
baseless considering his exculpation in the former.
He likewise bewails the manner in which the Ombudsman
resolved the motion for reconsideration/reinvestigation by merely making a
marginal note. Said marginal note which
does not clearly and distinctly state the facts and the law on which it is
based offends his right to due process.
On the other hand, the Ombudsman, through the Office of the
Special Prosecutor maintains that the present indictments against petitioner, i.e., Criminal Case Nos. 27234-27429
have reference to
Petitioner’s argument is not meritorious.
Petitioner anchors his contention on the belief that SAO
Report No. 92-128 is the basis of OMB-4-97-0965, memorandum dated
It must be noted that the subject matter of memorandum
dated
x
x x The first audit report,
SAO Report No. 92-128 was the subject of our earlier Memorandum for the
Honorable Ombudsman dated
In fact, the said
memorandum incorporated the summary of the
As earlier mentioned, the ODOM prosecutors conducted a
preliminary investigation. The case was
docketed as OMB-4-97-0965. With the
termination of the preliminary investigation, the ODOM prosecutors in a
resolution dated
One
of the findings of the Commission on Audit (
Subsequently, the case was forwarded to the Office of the
Special Prosecutor for review. SPO Manzano and Linco evaluated the
resolution of the ODOM prosecutors.
Finding that there exists probable cause to hold
respondents for trial, SPO Manzano and Linco, in a memorandum dated
SPO Linco proceeded with the
preliminary investigation and reinvestigation.
As a result, she came up with the memorandum dated 12 December 2001
recommending that petitioner, among other respondents, be indicted for 170 counts
of violation of Section 3(e), Rep. Act No. 3019, 21 counts of Malversation of Public Funds Thru Falsification of Public
Documents, and one count of violation of Section 4(a) of Rep. Act No.
6713. The Ombudsman approved the
recommendation and accordingly, the informations,
docketed as Criminal Case Nos. 27234-27429, were filed before the Sandiganbayan and raffled to its Third Division.
Again, the memorandum dated
But, be that as it may, the undersigned recommends in so far as transactions involving medicine and medical supplies are concerned to hold and so hold the following officer/employees liable. x x x
x x x x
As previously mentioned, the irregularities did not only cover procurement and purchases of medicines and medical supplies.
For instance, SAO Report No. 94-98 disclosed that payment of some purchases of the Philippine Navy were taken out of funds obligated under Journal Voucher No. 3169289 dated December 29, 1985, intended to pay for the preceding years’ accounts payable but for some reasons were unexpended. These funds in the sum of P153,497,882.40 should have been reverted to the unappropriated surplus of the general fund of the national government pursuant to Section 85 of P.D. 1446, but instead of reverting, the Philippine Navy without authority, used P86,864,776.50 out of the said sum in 1992 to pay for purchases incurred in 1990 and 1991. Their failure to so revert constitutes undue injury to the government x x x.[11]
It is noteworthy that the
foregoing transactions involving the purchases of medicines and medical
supplies and the funds obligated under Journal Voucher No. 31 in the sum of P153,497,882.40
are the same transactions which were
embodied in findings nos. 3.c and 1, respectively, of SAO Report No. 94-98.[12]
As shown by the chain of proceedings, indeed, SAO Report
No. 94-98 and not SAO Report 92-128 is the basis of the instant cases filed
against petitioner.
There is also no warrant for the contention that the
1. Complainant considers the justification/explanation of Capt. Briones inasmuch as he has no duty to control the disbursement of funds. Further, he is not one of those determined to be responsible under Finding No. 8 of SAO Report No. 92-128 which is the subject of the above-captioned case.
WHEREFORE, in view of the above, complainant respectfully prays that the Respondent be excluded from among the list of persons responsible in the above-captioned case.[13]
Based on the foregoing, there is no such admission by the
Furthermore, the claim of the petitioner that the case in
OMB-4-97-0965 involving the amount of P53,998,124.07 was dismissed by
Ombudsman Desierto is unfounded. As already mentioned, the resolution dated
As to petitioner’s remonstration on the manner the
Ombudsman resolved the motion for reconsideration/reinvestigation by merely
writing a marginal note, the same deserves scant consideration. The marginal note of the Ombudsman setting
aside the recommendation of SPO Jurado and ordering
the filing of the necessary informations against
petitioner is not a case of a total absence of factual and legal bases nor a
failure on the part of the Ombudsman to appreciate the evidence presented. As held in Gallardo v. People[14]:
x x x. It may appear that the Ombudsman’s one-line note lacks any factual or evidentiary grounds as it did not set forth the same. The state of affairs, however, is that the Ombudsman’s note stems from his review of the findings of fact reached by the investigating prosecutor. The Ombudsman, contrary to the investigating prosecutor’s conclusion, was of the conviction that petitioners are probably guilty of the offense charged, and for this, he is not required to conduct an investigation anew. He is merely determining the propriety and correctness of the recommendation by the investigating prosecutor, i.e., whether probable cause actually exists or not, on the basis of the findings of fact of the latter. He may agree, fully or partly, or disagree completely with the investigating prosecutor. Whatever course of action that the Ombudsman may take, whether to approve or to disapprove the recommendation of the investigating prosecutor, is but an exercise of his discretionary powers based upon constitutional mandate. x x x
The fact that the Ombudsman merely wrote his recommendation for the filing of the information against petitioners in a one-line note is not a sufficient basis for this Court to attribute arbitrariness or caprice on the part of respondent.
This Court has invariably refrained from interfering with
the Ombudsman’s discretion in the conduct of preliminary investigation absent a
clear case of grave abuse of discretion.[15] The 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 innumerable petitions assailing the
dismissal of investigatory proceedings conducted by the Office of the Ombudsman
with regard to complaints filed before it, in 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.[16]
Grave abuse of discretion is the capricious and whimsical
exercise of judgment on the part of public officer concerned which is
equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and
gross as to amount to an invasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of law as
where the power is exercised in an arbitrary and despotic manner by reason of
passion and hostility.[17]
No grave abuse of discretion, as defined, can be attributed
to the Ombudsman. On the contrary, his
orders finding probable cause against petitioner are based on the evidence
extant in the records.
WHEREFORE, premises considered, the petition is DISMISSED
for lack of merit.
SO ORDERED.
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MINITA V. CHICO-NAZARIOAssociate Justice |
WE
CONCUR:
Chief Justice
Chairperson
Associate Justice Associate
Justice
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ROMEO J.
CALLEJO, SR. Associate Justice |
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Pursuant to Article VIII,
Section 13 of the Constitution, it is hereby certified that the conclusions in
the above Decision were reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.
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ARTEMIO V.
PANGANIBAN Chief Justice |
[1]
[2]
[3]
[4] Records are silent about the findings in SAO Report No. 92-128.
[5] Rollo, p. 104.
[6] As summarized in Atty. Merba A. Waga’s memorandum dated
[7] Rollo, pp. 72-75.
[8]
[9]
[10]
[11]
[12] 1. Funds obligated in 1984 and 1985
amounting to P153,497,882.40 intended for payment of previous year’s
accounts payable were used to pay transactions incurred in 1990 and 1991
amounting to P85,854,775.50; and to cover check payments made in 1992 in
the amount of P67,643,106.90 in violation of Sec. 85 of PD 1445. Moreover, these funds were not reverted to
the unappropriated surplus of the General Fund of the
National government in violation of Sec. 33 of PD 1177.
3.c. Purchases
of medicines and medical supplies in 1990 and 1991 worth P53,998,124.00
were not accounted for. Moreover, the
alleged deliveries of medicines and medical supplies at Cavite
Naval Hospital and at the Office of the Chief Surgeon amounting to P16,195.87
and P23,879,397.00, respectively, were in excess of the normal
three-month supply requirement of these offices, in violation of COA Circular
No. 85-55A dated September 8, 1985.
[13] Rollo, p. 107.
[14] G.R. No. 142030,
[15] Osorio
v. Desierto, G.R. No. 156652,
[16]
[17] Perez
v. Office of the Ombudsman, G.R. No. 131445,