DR. JUANITO RUBIO,
Petitioner, -
versus - THE HONORABLE OMBUDSMAN, HONORABLE SANDIGANBAYAN and BAYANI MIRA, Respondents. |
G.R.
No. 171609
Present: PUNO, C.J.,
Chairperson, Sandoval-Gutierrez, AZCUNA,
and GARCIA, JJ. Promulgated: August 17, 2007 |
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D E C I S I O N
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SANDOVAL-GUTIERREZ, J.: |
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For our resolution is the instant Petition for Certiorari with
Special Prayer for the Issuance of a Temporary Restraining Order[1]
assailing the Resolution[2] dated
The facts are:
Dr. Juanito A. Rubio, petitioner, is the
Assistant Secretary for Finance and Management of the Department of Health and
the Executive Director of the Lung Center of the Philippines (Lung Center).
Bayani Mira, private respondent, on the other hand, is the Operations
Officer of Merit Protection Investigation Agency (Merit), a domestic
corporation engaged in the business of providing security and investigation
services.
On
On
Agency Bid
Proposal
(Per
Security Guard)
Merit
Protection P12,
000.00
Investigation
Agency
Star
Special Watchman P14,
000.00
and Detective
Agency
Starforce
Security and P14,
000.00
Allied
Services
Arm
Corporate Security P13,
630.00 (day);
Services P14,
709.90 (night)
On
On August 1, 2003, the BAC prepared and signed a Resolution recommending
the award of the Lung Center’s security service to Merit, the latter tendering
the lowest bid at P12,000.00 as monthly salary for each guard which was deemed
most advantageous to the government. On
However, petitioner noted that Merit’s bid proposal was below the standard
contract rate provided by the Memorandum Circular of PADPAO; and that the
current rate of P11,530.00 monthly salary per
guard of Starforce, the
On
Sometime in September 2003, the P11,530.00 per guard. On
P11,530.00 to P14,000.00
to cover the period from January 2003 to December 2003. On
On P14,000.00 was signed by the
On
The complaint alleges, among others, that petitioner, in disregarding the
results of the public bidding and entering into a contract of security service
with Starforce, caused undue injury to the government;
and conferred to a private party unwarranted benefit, advantage or preference
through manifest partiality, evident bad faith or gross excusable negligence.
In his counter-affidavit,[6]
petitioner vehemently denied the allegations and countered that the complaint is
a harassment suit from a losing bidder.
On
On
The Tanodbayan
(Ombudsman), through the undersigned Graft Investigation and Prosecution
Officer II, accuses JUANITO RUBIO y ADIARTE of violation of Section 3,
paragraph (e) of Republic Act No.
3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act,
committed as follows:
That on or about January
23, 2004, or sometime prior or subsequent thereto, in Quezon City, Philippines,
and within the jurisdiction of this Honorable Court, accused JUANITO RUBIO y
ADIARTE, a high ranking officer with Salary Grade 29, being then Assistant
Secretary of the Department of Health and concurrent Officer-in Charge of the
Lung Center of the Philippines (for brevity Lung Center), a government-owned
hospital located at Quezon Avenue Extension, Quezon City, committing the
offense herein charged in relation to, while in the performance and taking
advantage of his official functions and duties as the then officer-in-charge of
the Lung Center, did then and there, willfully, unlawfully and criminally cause
undue injury to the Government (Lung Center) by causing the award to Starforce Security and Allied Services, Incorporated (for
brevity STARFORCE), a private security agency, the contract of providing
security services to Lung Center’s properties and installation, covering the
period of seven (7) months, from January 1, 2004 to July 31, 2004, inclusive,
through manifest partiality and evident bad faith. Although fully knowing that
STARFORCE, with its bid of P14, 000.00 monthly salary per guard for
eight (8) hours daily duty, was not the lowest bidder, but that of Merit
Protection Investigation Agency (MERIT) whose bid was only P12,000.00
per guard, thereby giving STARFORCE unwarranted benefit, advantage and
preference, inasmuch as the Lung Center was compelled to pay STARFORCE
additional amount of P2, 000.00 per guard per month or P82,
000.00 loss a month given the number of guards deployed at forty one (41) for
each month served, to the damage and prejudice of the government in general and
the Lung Center, in particular, in the estimated total amount of FIVE HUNDRED SEVENTY
FOUR PESOS (P574,000.00), representing the total additional amount paid
to STARFORCE for the whole period covered by the contract.
CONTRARY
TO LAW.[7]
On
Hence, the present petition.
Petitioner contends that the Ombudsman acted with grave abuse of
discretion amounting to lack or in excess of jurisdiction in filing an Information with the Sandiganbayan for violation of
Section 3(e) of R.A. No. 3019 against him.
Private respondent counters that the petition lacks of merit.
Case law has it that this Court does not ordinarily interfere with the
discretion of the Office 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 if necessary. Certainly, it has been
the policy of this Court to vest upon the Office of the Ombudsman wide latitude
of investigatory and prosecutory prerogatives in the exercise of its power to
pass upon criminal complaints.[9]
However, while it is the function of the Ombudsman to determine whether
or not the petitioner should be subjected to the expense, rigors and
embarrassment of trial, he cannot do so arbitrarily. This seemingly exclusive and unilateral
authority of the Ombudsman must be tempered by the Court when powers of
prosecution are in danger of being used for persecution.[10]
Section 3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt Practices Act
states:
Sec.
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:
x x x x x x x x x
e. Causing any undue
injury to any party, including the Government, or giving any private party any
unwarranted benefit, advantage or preference in the discharge of his official
administrative or judicial functions through manifest partiality, evident bad
faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices of
government corporations charged with the grant of licenses or permits or other
concessions.
To hold a person liable under this section, the concurrence of the
following elements must be established beyond reasonable doubt by the
prosecution:
(1) that the accused is a public officer or a private person
charged in conspiracy with the former;
(2) that said public officer commits the prohibited acts during
the performance of his or her official duties or in relation to his or her
public positions;
(3) that he or she causes undue injury to any party, whether the
government or a private party; and
(4) that the public officer has acted with manifest partiality,
evident bad faith or gross inexcusable negligence.[11]
As may be noted, what contextually is
punishable is the act of causing any undue injury to any party, or the giving
to any private party unwarranted benefits, advantage or preference in the
discharge of the public officer’s functions.[12] The
records disclose that Merit indeed tendered the lowest bid of Twelve Thousand
Pesos (P12,000.00) salary
per month for every guard who will render eight hours of work per day. In fact, the BAC recommended to petitioner to
award the security service contract to Merit. However, petitioner declined because Merit’s
bid price rate violates PADPAO’s Memorandum Circular
NR. 1, Series of 2001, the pertinent portion of which is reproduced hereunder:
MEMORANDUM
CIRCULAR
NR 1, Series of 2001
WHEREAS,
PADPAO, in its efforts to professionalize the industry, is desirous of
standardizing the contract rate for security guard services, which rate must be
adequate and in conformity with current labor and social legislation;
WHEREAS,
the wages and other benefits due to a security guard are covered by the Labor
Code of the
WHEREAS, it is necessary to effect adjustments in the salaries of the security guards and in the contract rate for security guard services to be able to comply with the aforementioned laws;
NOW, WHEREFORE, taking into account the wages and benefits due to a security guard as prescribed by the current wage orders, and adding thereto a reasonable allowance for overhead and margin and the Value Added Tax (VAT), the PADPAO has the minimum contract rate that should be adopted immediately and uniformly in the National Capital Region as follows:
Contract rate per month per guard
service of eight (8) hours duty
per day P13,500.00 P13,525.00 P14, 000.00
x x x
Thus, in keeping with proper ethical procedures within the Security Industry and in the interest of unity within the organization, the members resolved and bound themselves collectively:
1. To observe, adhere and comply with the new minimum with the new standard rates referred to in the preceding paragraph, as the MINIMUM CONTRACT RATES, and to compensate the guards and employees in accordance with the provisions of the Labor Code, as amended by various laws and wage orders.
2. To adhere strictly with the provisions of Section 1, paragraphs C and (F) of the Rules and Regulations Implementing Republic Act No. 5487, as amended by Presidential Decree No. 1919, which, among others, authorize the Chief of the Philippine National Police to cancel the license of any security agency for their violation, as in the following cases:
x x x (c) When a security agency has been found to engage in cut-throat competition by under cutting its contract rate for security services with its client for a price lower than the standard minimum rates for security services adopted by PADPAO, Inc. with the concurrence of the Chief of the Philippine National Police x x x
(f) When a security agency or company security force has been found to be violating the minimum wage rates that should be lawfully granted to their private security/company guards x x x
This Memorandum Circular shall be binding upon all private security and detective agencies existing presently and those to be licensed hereafter in accordance with law. This order shall take effect immediately.
x x x[13]
Moreover, the Department of Health Guidelines on Public Bidding for
Security Services states that bidders who do not conform to the PADPAO rate
shall be disqualified, thus:
23.8 The government
estimate which is based on the minimum wage and allowable benefits required by law, shall be the major basis for determining the
responsiveness of the bid of qualified bidders. Strictly follow PADPAO rate.
Non-conformity will be a ground for automatic disqualification of bid proposal.
(Underscoring ours)[14]
It bears stressing that pursuant to PADPAO’s
Memorandum Circular, the monthly salary rate of each guard is P14,000.00 effective
Since Starforce was the
JOINT AFFIDAVIT
We, Buenaventura
Medina, Albilio Cano, Julieta Mancelita,
Angeline Rojas and Carol Manduriao,
Filipinos, of legal age and all with office address at Lung Center of the
Philippines, Quezon Avenue, Diliman, Quezon City, after having sworn to in
accordance with law, hereby depose and state that:
1. We are all members
of the
2. After receiving
the bid documents, we determined that it was Merit Protection Investigation
Agency, Inc. (“Merit” for brevity), the present complainant, Mr.
Bayani Mira’s employer, which offered the lowest calculated responsive bid.
3. The bid Merit
offered was Twelve Thousand Pesos (Php12, 000.00) per month per guard for eight
hours of daily duty and was initially chosen by BAC for the security contract.
4. On
5. During the said
meeting, Dr. Rubio inquired why Merit was the one selected by the BAC. We
justified our choice by pointing out that the bid submitted by it was the
lowest at Php12,000.00 per guard.
6. Dr. Rubio
commented that in view of the committee’s justification for the choice of
Merit, then the current monthly rate (Eleven Thousand Five Hundred Thirty –
Php11,530.00 per guard) with the then security agency,
Star Force Security Services, is lower than the rate offered by merit and is
even more advantageous to the LCP.
A copy of the BAC Minutes of Meeting
–
7. For the reasons
cited by Dr. Rubio, LCP then decided to just renew the contract with Star Force
at the rate of P11,530.00 per guard until July 2004.
8. We are executing
this Joint Affidavit to attest to the truth of the foregoing allegations and
for the purpose of corroborating the Counter-Affidavit executed by Dr. Rubio in
his Answer to the Affidavit-Compliant dated
x x
x (Underscoring supplied)[15]
As regards the increase of the rate of Starforce
from P11,530.00 to P14,000.00 per guard,
the records disclose that the same was a collective and unanimous decision of the
JOINT AFFIDAVIT
We, Dina V. Diaz,
Raoul C. Villarete, Rey A. Desales, Sullian Sy-Naval, Joseph Leonardo Obusan, Nelia Tan-Lui, Albilio C. Cano, Elvira N. Baura,
Angeline Rojas and Cesario Yangat, Filipinos, of legal age and all with office
address at Lung Center of the Philippines, Quezon Avenue, Diliman, Quezon City,
after having sworn to in accordance with law, hereby depose and state that:
1. We, in our capacities
as heads of various departments of the
2. During our
Committee’s Special meeting held last
3. Star Force was
requesting for a possible retro-adjustment of its existing contract rate in the
amount of Eleven Thousand Five Hundred Thirty Pesos (Php11,530.00)
to Fourteen Thousand Pesos (Php14, 000.00).
4. Star Force entered
its plea for an increase in the contract price on what it stated as “the new
PADPAO mandated Labor Wage Order No. NCR-09 in the amount of
P14, 000.00 per guard per month at 8 hours duty that took effect last February
1, 2002.” It likewise referred to
“suffering from financial setback due to poor economic political conditions
prevailing in the country” at that time. It consequently asked for a possible
retro-adjustment for the months of January to December 2003.
5. After a
meticulous and painstaking discussion on the merits of Star Force’s request, we
unanimously resolved to grant it. We added, however, that any amendment in the
price must apply prospectively and not retroact to the preceding year.
6. Our foremost
justification for taking such course of action is that the adjusted fee is
indeed a mere compliance with the minimum rate fixed by law based on a valid
Wage Order.
A copy of the Minutes
of the Management Committee Special meeting is attached hereto as Annex A and
made an integral part hereof.
7. The
re-adjustment, hence, was just an attempt on our part to modify the rate and
harmonize it with what justice, law and equity prescribes under the
circumstances.
8. We are executing
this Joint Affidavit to attest to the truth of the foregoing allegations and
for the purpose of corroborating the Counter-Affidavit executed by Dr. Rubio in
his Answer to the Affidavit-Complaint dated
x x
x (Underscoring ours)[16]
In addition, no undue injury could have been suffered by the government when
the P14,000.00 for each guard’s monthly salary is justified, thus:
Upon further
evaluation of the documents and after interviewing the officers involved in
this matter, this Committee has ascertained however that indeed, the government
had advantage of having saved a considerable amount from the service contract
with Starforce from September to December 2003. That
Dr. Rubio acceded to the request of Starforce
therefore for re-adjustment of their current rate clearly below the PADPAO rate
of Php11,530/guard, into the PADPAO rate of Php14,
000.00/guard in January is justified, and did not put the government at a
disadvantage. The Php14,000.00/guard is within the
PADPAO rate, and not a centavo more than the ceiling. One way to look at it
would be that such action of re-adjusting the rate is a way of rectifying the
non-compliance of LCP with the PADPAO rate and other labor laws and
legislations, which incidentally, were not complied with by LCP in all years
prior to the readjustment of the rate in
January 2004. x x x[17]
It bears stressing that it was the BAC which resolved to renew the
In sum, we hold that there is no indication that petitioner violated
Section 3(e) of R.A. No. 3019 to warrant his criminal prosecution. Clearly, in filing with the Sandiganbayan the
Information for such violation against petitioner, the Ombudsman acted with
grave abuse of discretion.
WHEREFORE, the
petition is GRANTED. The assailed Resolution and Order of the Office of
the Ombudsman dated
SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief
Justice Chairperson |
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RENATO C. CORONA Associate Justice |
ADOLFO S. AZCUNA Associate Justice |
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CANCIO C. GARCIA Associate Justice |
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REYNATO S. PUNO
Chief Justice
[1] Filed under Rule 65 of the 1997 Rules of Civil Procedure, as amended.
[2] Annex “C” of the Petition, rollo, pp. 84-99.
[3] Annex “I” of the Petition, id., pp. 190-193.
[4]
[5] Annex “A” of the Petition, id., pp. 67-68.
[6] Annex “B” of the Petition, id., pp. 76-79.
[7] Annex “D” of the Petition, id., pp. 100-102.
[8] Supra, footnote 3.
[9] Fuentes, Jr. v. Office of the Ombudsman, G.R. No. 164865, November 11, 2005, 474 SCRA 779, 789, citing Venus v. Desierto, G.R. No. 130319, 298 SCRA 196 (1998), and Presidential Commission on Good Government v. Desierto, G.R. No. 132120, 397 SCRA 171 (2003).
[10] Cabahug
v. People, G.R.
No. 132816,
[11] Llorente, Jr. v. Sandiganbayan, G.R. No. 122166, March 11, 1998, 287 SCRA 382, 398, citing Ponce de Leon v. Sandiganbayan, 186 SCRA 745, 754 (1990).
[12]
[13] Rollo, pp. 132-135.
[14]
[15] Annex “G” of the Petition, id., pp. 148-149.
[16] Annex “H” of the Petition, id., pp. 150-151.
[17] Supra, footnote 3, id., pp. 177-189.