EN BANC
|
COMMISSION ON AUDIT, REGIONAL OFFICE NO. 13,
Petitioner, - versus - AGAPITO A.
HINAMPAS and EMMANUEL J. CABANOS, Respondents; OFFICE OF THE
OMBUDSMAN,
Petitioner-Intervenor. x--------------------------------------------x OFFICE OF THE
OMBUDSMAN,
Petitioner, - versus - ROGELIO P. MONTEALTO, Respondent. x--------------------------------------------x
OFFICE OF THE OMBUDSMAN,
Petitioner, - versus - VIRGILIO DANAO, Respondent. x--------------------------------------------x ROSELLER ROJAS, Petitioner, - versus - VIRGILIO DANAO,
Respondent. x--------------------------------------------x OFFICE OF THE
OMBUDSMAN,
Petitioner, - versus
- SONIA GONZALES-DELA
CERNA and MILAGROS UMALI-
Respondents. |
|
G.R. No. 158672 Present: PUNO, Chief Justice, QUISUMBING,
YNARES-SANTIAGO, SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CARPIO-MORALES,
AZCUNA, TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, JR., and *NACHURA, JJ. Promulgated: G.R. No. 160410 G.R. No. 160605 G.R. No. 160627 G.R. No. 161099 |
x-----------------------------------------------------------------------------------x
D E C I S I O N
GARCIA, J.:
Cast against different factual backdrops but raising a common issue relative to the nature of the administrative disciplinary power of the
Office of the Ombudsman (OOMB) are these five (5) consolidated
petitions for review assailing the decisions of the Court of Appeals (CA) which overturned the Ombudsman's actions on the premise that the Ombudsman's administrative
disciplinary power is merely recommendatory.
More particularly, the consolidated petitions
assail and seek to set aside the following issuances of the
CA in the different proceedings brought before it and whence the corresponding consolidated
petitions herein sprung, to wit:
1.
IN G.R. NO. 158672:
Decision[1]
dated May 29, 2003 in CA-G.R.
SP No. 70137, which reversed and set aside an earlier
decision dated August 27, 2001 of the Ombudsman finding
herein respondents Agapito A. Hinampas and Emmanuel J. Cabanos,
among others, guilty of gross neglect of duty, grave misconduct and conduct
prejudicial to the best interest of the service and meting on them the penalty
of one year suspension from office without pay;
2.
IN G.R. NO. 160410:
Decision[2]
dated October 14, 2003 in CA-G.R. SP No. 73991 reversing and setting aside the
August 16, 2002 Memorandum Order
of the OOMB which found respondent Rogelio P. Montealto, along with Nellie R.
Apolonio, guilty of dishonesty, grave misconduct and conduct grossly
prejudicial to the best interest of the service, and meted
on them the penalty of dismissal from the service.
3. IN
G.R. NOS. 160605 & 160627:
Decision[3]
dated April 28, 2003 in CA-G.R.
SP No. 72790 reversing and setting aside the
September 19, 2001 decision of the Ombudsman which found
respondent Virgilio M. Danao guilty of dishonesty and
imposed upon him the penalty of dismissal from the
service; and
4 IN G.R. NO.
161099:
Decision[4]
dated December 3, 2003 in CA-G.R. SP No. 74222 reversing and setting aside the
Ombudsman's modified decision of April 17, 2001 which found respondents Sonia
Gonzales-Dela Cerna and Milagros Umali-Ventura guilty of simple
neglect of duty
and meted upon them the penalty of one month suspension
As culled from the records, the respective
facts of each of the consolidated
petitions are as follows:
Re: G.R.
No. 158672 -
On September 21, 1998, a certain
Teodoro A. Gapuzan filed a letter-complaint with the OOMB alleging
anomalies in the conduct of public biddings by the Office of the District
Engineer, First Engineering District of Agusan del Sur, and the collusion of
licensed private contractor Engr. Rafael A. Candol, representing JTC
Development, Construction and Supply and NBS Construction under a joint venture
agreement. The letter-complaint alleged that, despite these firms being holders
of small licenses entitled only to projects costing not more
than three million pesos (P3,000,000.00) on a single
undertaking, Engr. Candol was awarded seven (7) projects of more than P3,000,000.00
each, to wit:
|
1. |
Construction
of |
P13,000,000.00 |
|
2. |
Construction of |
P13,000,000.00 |
|
3. |
Construction of Concrete Pavement and Approach, |
P7,000,000.00 |
|
4. |
Improvement of |
P8,617, 890.60 |
|
5. |
Improvement of |
P8,618,054.77 |
|
6. |
Improvement of |
P9,072,998.54 |
|
7. |
Improvement of |
P9,097,999.47 |
The Ombudsman endorsed the
aforesaid letter-complaint to the Commission on Audit (COA), Region XII, Caraga
Administrative Region,
A verification with the Philippine
Contractors Accreditation Board (PCAB) of the licenses submitted by JTC and NBS
revealed that the PCAB file did not reconcile with those submitted to the PBAC,
particularly on the category/GP size range. The actual category/GP size range
of JTC/NBS is C/Small B while the copy submitted to the PBAC included Medium A
in addition to the C/Small B category. Under Presidential Decree (PD) No. 1594,
contractors with category/GP size range of C/Small B are allowed to undertake
projects costing not more than P3,000,000.00.
In a Resolution dated
In the same resolution, the Ombudsman
likewise directed the filing of an administrative case against the PBAC members
and Gloria Razo for grave misconduct, gross neglect of duty and conduct
prejudicial to the best interest of the service for awarding public work
contracts without actually verifying and validating the special contractors'
licenses resulting in the contracts being awarded to an unqualified
contractor. The case was docketed as OMB-MIN-ADM-00-032. After the submission
of counter-affidavits and the requisite preliminary conference, the parties
presented their evidence in formal hearings. The case was then submitted for
decision.
In a decision
of
WHEREFORE, premises considered, this Office
finds respondents Agapito A. Hinampas, Lilia P. Baskinas, Emmanuel J. Cabanos,
Roberto C. Salise, and Gloria T. Razo, GUILTY of gross neglect of duty, grave
misconduct and conduct prejudicial to the best interest of the service and are
hereby meted the penalty of SUSPENSION from office for one (1) year without
pay, effective upon the finality hereof.
Their motions for reconsideration
having been denied by the Ombudsman, respondents filed their appeal with
the CA whereat their appellate recourse was docketed
as CA-G.R. SP No. 70137. In its
decision of
1.
The Ombudsman cannot implement its decisions in
administrative disciplinary cases pursuant to the obiter dictum in Tapiador v.
Office of the Ombudsman, et al.;[5]
2.
Since the allegedly same case had already been
earlier resolved and disposed of by the DPWH, res judicata bars the OOMB
from exercising its administrative disciplinary authority thereon; and
3.
The reliance in good faith on the documents
submitted to the respondents by the contractors, coupled with lack of undue injury to
the government, cannot give rise to administrative liability.
Respondent Gloria Razo had appealed
earlier than the other respondents from the same Ombudsman decision. This was
docketed as CA-G.R.
SP No. 70137. Later,
the 5th Division of the CA took a stand contrary to
that of the 8th Division and denied her appeal, in
effect sustaining the decision dated
Meanwhile, the COA had brought
the CA's 8th Division decision for
review to this Court in G.R. No. 158672.
Re: G.R.
No. 160410 -
On
In his complaint, Marte
alleged that Montealto wrote a letter to Apolonio requesting that a cash
advance in the amount of P88,000.00 be issued in Apolonio's name to cover the
cost of supplies and materials, food and other miscellaneous expenses for an
upcoming Team Building Workshop for NBDB employees. As requested, Apolonio
secured a cash advance in her name, and, in due course, Check No. 19595
for P88,000.00 was issued. Apolonio encashed the check and used P80,200.00
to purchase gift checks from SM North Edsa. The gift checks were then
distributed to the members of the NBDB Secretariat who attended the seminar
workshop.
An administrative inquiry was
conducted. In defending her actions, Apolonio stated that:
[B]ecause of the clamor of the participants
of the said workshop seminar who are all NBDB employees not to consume all by
themselves the budget, they requested that they be allowed instead to share them with their
respective families during the Christmas season.
Montealto, on the other hand, argued
that his only participation was to make a request authorizing the granting of a
cash advance in the name of Apolonio, without malice nor intent to defraud the
government. He denied having participated in the processing,
release and use of the funds.
In a Memorandum Order dated August 16,
2002, which modified its decision dated April 3, 2003, the OOMB found Apolonio
and Montealto to have misapplied the amount of P88,000
for their own benefit and of others who participated in the said seminar
workshop, and stated the observation that it has become apparent that their
respective fiscal responsibilities were not observed. It then adjudged
Apolonio and Montealto guilty of dishonesty, grave misconduct
and conduct grossly prejudicial to the best interest
of the service, and meted on them the penalty of dismissal
from service.
On appeal to the CA in
CA-G.R. SP No. 73991, that
court, as in previous cases, found the OOMB to be without authority to
directly dismiss government employees from public service, relying, as
basis therefor, on the so-called Tapiador doctrine,
to wit:
x x
x Besides, assuming arguendo, that petitioners were
administratively liable, the Ombudsman has no authority to directly dismiss the
petitioners from the government service, more particularly from thier position in the
BID. Under Section 13, subparagraph (3), of Article XI of the 1987 Constitution,
the Ombudsman can only recommend the removal of the public official or
employee found to be at fault, to the public official concerned.[6]
Re: G.R.
Nos. 160605 and 160627 -
Roseller A. Rojas, a Special Agent I of
the Bureau of Customs-Enforcement and Security Service (BOC-ESS), filed a
complaint with the OOMB against his superior, herein respondent Virgilio M.
Danao (Director III) for Dishonesty. The complaint alleged that respondent
Danao had falsely made it appear in his personal data sheets (PDS) that he is a
1972 graduate of the Manila Central University (MCU)
with a course in Bachelor of Science in Business Administration (BSBA).
By way of proof, complainant Rojas
submitted a Certification issued by MCU stating that per its records, there is
no graduate of BSBA for the year 1972 by the name of Virgilio M.
Danao. Rojas also presented copies of the PDS prepared and submitted to the
Bureau of Customs (BOC) whereon it is stated that
Danao had graduated with a degree in BSBA from MCU in 1972.
After due proceedings, the Ombudsman
found Danao guilty of dishonesty and meted on him the penalty of
dismissal from service.
The implementation of the aforesaid
decision was then sought through the BOC per the Ombudsman's
Implementing Order of
Dissatisfied with the action thus taken
by the OOMB, Danao went on appeal to the CA in G.R. SP No. 72790, claiming that the PDS on
which the Ombudsman's decision was based is not the PDS he submitted to the BOC
and the Civil Service Commission (CSC).
In a decision of
The OOMB moved for a reconsideration,
but the appellate court denied the motion in its
Re: G.R.
No. 161099 -
Respondent Sonia Gonzales-Dela Cerna
is the Chief of the Entry Processing Unit (EPU), MIASCOR Composite Unit, Bureau of
Customs (BOC) at the Ninoy Aquino International Airport (NAIA), while respondent
Milagros Umali-Ventura is the Customs Document Processor of the Cargohaus
Warehouse Collection Unit, BOC-NAIA,
On
In both shipments, Samsung represented itself as
being a first-time importer of cellular phones; hence its
failure to secure the corresponding clean report of findings (CRF). It
nonetheless offered to pay the duty, tax and penalty for non-compliance with
the CRF requirement.
The Societe Generale de
Surveillance (SGS) Manila Liason Office, however, produced
respective copies of the CRF on Samsungs
importations with a value of $140,000.00 for each importation.
In both importations, Samsung submitted
with the BOC spurious commercial invoices covering the shipments for
processing, as well as fake National Telecommunications Commission (NTC) permit
to import cellular phones.
Samsung valued the entire
Concerned Customs Examiners appraised
the shipments based on the invoice value submitted by Samsung, which amounts
were found to be grossly undervalued.
The
As a consequence of the fraudulent acts
adverted to, the government suffered a revenue loss of P1,246,983.00. This
was made possible by Samsung's undervaluation with the complicity of concerned
Customs officials and employees assigned at BOC's Cargohaus Warehouse
Collection Unit at NAIA.
On
FFIB, as represented by Atty. Franco T.
Falcon, filed an administrative complaint with the AAB, docketed as
OMB-ADM-0-00-0439 (OMB-0-00-0917), charging respondent dela Cerna, Aseron and
respondent Umali-Ventura with Gross Neglect of Duty, Conduct Prejudicial to the
Best Interest of the Service, Inefficiency, and Incompetence in the Performance
of Duty.
After evaluating the parties'
respective positions, Plaridel Oscar J. Bohol, Graft Investigation Officer
(GIO), rendered a decision dated
WHEREFORE, the foregoing premises considered, respondents SONIA
GONZALES-DELA CERNA, Chief, Entry Processing Unit; and MILAGROS UMALI-VENTURA,
Customs Document Processor, all from the Cargohaus Unit, Bureau of
Customs, Ninoy Aquino International Airport (NAIA),
Likewise, the instant case against MARIUS ASERON, Customs Examiner, is
hereby DISMISSED for being MOOT and ACADEMIC.
Because said
decision was subject to review, then Overall Deputy Ombudsman Margarito P. Gervacio,
Jr., modified GIO Bohol's decision with the following marginal note:
Modified Pursuant to the Memorandum of
GIO Julita Calderon dated
Dissatisfied with the action of the
Ombudsman, respondents dela Cerna and Ventura went on certiorari
to the CA in CA-G.R.
SP No. 74222 and secured
a reversal from the appellate court, again on the
ground that the Ombudsman's disciplinary
powers are merely recommendatory. Hence, the OOMBS petition in G.R. No. 161099.
The major issue which these five (5) consolidated
petitions for review raise in common is whether or not the
disciplinary power of the Ombudsman is indeed merely recommendatory in
nature, as ruled by the CA.
The answer, as laid out by recent
jurisprudence, is a resounding NO. As this
Court has already held in Ledesma v. CA[7] and Estarija v. Ranada,[8] the so-called
Tapiador doctrine, upon which the assailed CA decisions
are based, is mere obiter.
Tapiador takes
note of the following Section of the Constitution:
Section 13. The Office of the
Ombudsman shall have the following powers, functions, and duties:
xxx xxx xxx
(3)
Direct the officer concerned to take appropriate
action against a public official or employee at fault, and recommend his removal,
suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith. (Emphasis supplied)
The
word recommend must be taken in conjunction with the phrase and ensure compliance
therewith. In Ledesma v. CA, supra, we had this to say:
x x
x [A] cursory reading of Tapiador reveals that the main point of the case was
the failure of the complainant therein to present substantial evidence to prove
the charges of the administrative case. The statement that made reference to the
power of the Ombudsman is, at best, merely an obiter dictum and, as it is
unsupported by sufficient explanation, is susceptible to varying
interpretations, as what precisely is before us in this case. Hence, it cannot
be cited as a doctrinal declaration of this Court nor is it safe from judicial
examination.[9] (Emphasis
supplied)
In Estarija v. Ranada,[10] we reiterated
our pronouncements in Ledesma and went on to categorically
state:
x x
x [T]he Constitution does not restrict the powers of the Ombudsman in Section
13, Article XI of the 1987 Constitution, but allows the Legislature to enact a
law that would spell out the powers of the Ombudsman. Through the enactment of
Rep. Act No. 6770, specifically Section 15, par. 3, the lawmakers gave the
Ombudsman such powers to sanction erring officials and employees, except
members of Congress, and the Judiciary. To conclude, we hold that Sections 15,
21, 22 and 25 of Republic Act No. 6770 are constitutionally sound. The powers of the
Ombudsman are not merely recommendatory. His office was given teeth to render this
constitutional body not merely functional but also effective. Thus, we hold
that under Republic Act No. 6770 and the 1987 Constitution, the Ombudsman has
the constitutional power to directly remove from government service an erring
public official other than a member of Congress and the
Judiciary. (Emphasis supplied)
In G.R. Nos.
160410 and 161099, the CA affirmed the findings of
facts by the Ombudsman, relying only on the Tapiador obiter to
reverse and set aside the Ombudsman's actions as being beyond the ambit of his
authority. There is no question, therefore, that the assailed decisions in
those cases should be annulled and the Ombudsman's decisions therein
reinstated.
However, G.R. No.
158672 and G.R. Nos. 160605,160627 confront us with
additional issues to tackle. We shall now specifically address these cases one
at a time.
Re: G.R.
No. 158672 -
In CA-G.R. SP No. 70137 (Hinampas case), the CA
did not solely rely on the Tapiador obiter in
reversing and setting aside the OOMB's decision. In arriving
at its decision, the CA reasoned that reliance in good faith on the
documents submitted to respondents by the contractors, coupled with lack of undue
injury to the government, cannot give rise to administrative liability.
Further, the CA found that res judicata bars the
OOMB from exercising its administrative disciplinary authority since the
allegedly same case had already been resolved and disposed of by the DPWH.
Res judicata cannot be made to apply in CA-G.R. SP No. 70137 (Hinampas case). It is apparent from the facts on record that the Ombudsman had
already acquired jurisdiction over the case when the DPWH learned of it. DPWH
was only furnished a copy of the complaint filed with the OOMB when it
decided to conduct its own inquiry based on the same complaint. Furthermore,
the DPWHs investigation did not qualify as
a quasi-judicial proceeding wherein necessarily
respondents are named, offenses are charged, and parties are heard. The DPWH proceeding
was just a fact-finding investigation and the resultant finding therein cannot
act as a bar to the Ombudsman's decision.
In an administrative proceeding,
the quantum of proof required for a finding of guilt is only substantial
evidence, meaning that amount of relevant evidence which a reasonable mind
might accept as adequate to justify a conclusion.[11] Further,
precedents teach us that the factual findings of the OOMB, when supported by
substantial evidence, are conclusive,[12] and such
findings made by an administrative body which has acquired expertise are
accorded not only respect but even finality.[13]
Hence, the CA decision assailed in G.R. No.
158672 must also be reversed and set aside, and the decision of the Ombudsman
finding respondents Hinampas and Cabanos guilty of grave
misconduct, gross neglect of duty and conduct prejudicial to the best interest
of the service, should be reinstated.
Re: G.R.
Nos. 160605 and 160627 -
When there is substantial evidence in
support of the Ombudsman's decision, that decision will not be overturned.[14] However,
the Danao cases present
an instance where there is no substantial evidence to back up the
OOMB's decision. Hence, in CA-G.R. SP No. 72790, the CA was correct
in setting aside the OOMB decision in this case. As the
appellate court elucidated:
But then, on the basis of the records,
these PDS on which the [OOMB's] Decision dated September 19, 2000 (September
26, 2001) as well as the Order dated February 27, 2002 are based is being
questioned by herein petitioner to be not the PDS that he has submitted to the Bureau of
Customs and the Office of the Civil Service Commission. Hence, the entries
appearing therein are doubtful.
That being the case, [the OOMB] cannot
correctly make the PDS as a basis of its decision since the same is
questionable there being no report yet made by the NBI as to whether the
handwriting contained therein is genuine and belonging to petitioner especially
in view of the report of the NBI dated May 16, 2002 regarding 2 of the 5 PDS
submitted by [Rojas] to the [OOMB] to the effect that the thumbmarks appearing
thereon are impressed by a different person which, in effect, support the stand
of petitioner that the subject PDS herein were not submitted or filed by him
with the Bureau of Customs and the Office of the CSC. In fact, the presumption
of regularity in the performance of one's duty is not applicable in this case
considering that being disputable it has been contradicted by the Partial
Report of the NBI dated
Indeed, it does not appear that
it was respondent Danao who accomplished the questioned PDS. Nor is there any
proof that the signatures and thumbmarks thereon are his. It cannot be assumed
that the PDS was prepared, signed and submitted by Danao, especially in light of his
denial. The physical evidence being such, the CA really had no choice but to
exculpate respondent Danao.
WHEREFORE, the
Court RULES as follows:
1.
In G.R. No. 158672 [COA v. Hinampas, et al.]: The
2.
In G.R. No. 160410 [OOMB v. Montealto]: The
assailed CA decision of
3.
In G.R. Nos. 160605 & 160627 [OOMB v.
Danao; Rojas v. Danao]: The
assailed decision and resolution of the CA in CA-G.R. SP No. 72790 are AFFIRMED.
4.
In G.R. No. 161099 [OOMB v. Gonzales-dela Cerna, et
al.]: The CA decision in CA-G.R.
SP No. 74222 dated
No costs.
SO ORDERED.
CANCIO C. GARCIA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING
Associate Justice
|
CONSUELO YNARES-SANTIAGO Associate Justice |
|
ANGELINA SANDOVAL-GUTIERREZ Associate Justice
|
ANTONIO T. CARPIO Associate Justice
|
|
MA. ALICIA AUSTRIA-MARTINEZ Associate Justice
|
RENATO C. CORONA
Associate Justice
|
|
CONCHITA CARPIO MORALES Associate Justice |
ADOLFO S. AZCUNA Associate Justice |
|
DANTE O. TINGA Associate Justice
|
MINITA V. CHICO-NAZARIO Associate Justice
|
|
PRESBITERO J. VELASCO, JR. Associate
Justice |
(No part) ANTONIO EDUARDO B. NACHURA Associate
Justice |
C
E R T I F I C A T I O N
Pursuant
to Section 13, Article VIII of the Constitution, I certify that the conclusions
in the above decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court.
REYNATO
S. PUNO
Chief Justice
* No part.
[1] Penned by Associate Justice Mercedes Gozo-Dadole, with Associate Justices Conrado M. Vasquez, Jr. and Rosmari D. Carandang, concurring; rollo of G.R. No. 158672, pp. 18-33.
[2] Penned by Associate Justice Sergio L. Pestaρo (ret.), with Associate Justices Marina L. Buzon and Jose C. Mendoza, concurring; rollo of G.R. No. 160410, pp-66-72.
[3] Penned by Associate Justice Mercedes Gozo-Dadole, with Associate Justices Conrado M. Vasquez, Jr. and Rosmari D. Carandang, concurring; rollo of G.R. No. 160605, pp. 8-22; rollo of G.R. No. 160627, pp. 40-54.
[4] Penned by Associate Justice Eliezer R. de los Santos, with Associate Justices B.A. Adefuin-de la Cruz (ret.), and Jose C. Mendoza, concurring; rollo of G.R. No. 161099, pp. 80-86.
[5] G.R.
No. 129124,
[6] Supra note 7 at p. 333.
[7] G.R. No. 161629,
[8] G.R. No. 159314,
[9] Supra note 9 at pp. 448-449.
[10] Supra note 10 at pp. 673-674.
[11] Avancena v. Liwanag, A.M. No. MTJ-01-1383,
[12] Republic Act No. 6770 (1989), Sec. 27(2).
[13] Advincula v. Dicen, G.R. No. 162403,
[14] Morong Water District v. Office of the
Deputy Ombudsman, G.R. No.
116754, March 17, 2000, 328 SCRA 363, 373.
[15] Rollo of G.R. No. 160627, p. 51.