G.R. No. 149102

FIRST DIVISION

OFFICE OF THE OMBUDSMAN,

Petitioner,

- versus -

JOHNNY ALANO,

Respondent.

G.R. No. 149102

Present:

pUNO, C.J., Chairperson,

Sandoval-Gutierrez,

Corona,

AZCUNA, and

GARCIA, JJ.

Promulgated:

February 15, 2007

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DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is a petition for review on certiorari[1] assailing the Decision[2] dated April 30, 2001 and Resolution[3] dated July 18, 2001 of the Court of Appeals in CA-G.R. SP No. 54967, entitled “Johnny Alano v. Fact-Finding and Intelligence Bureau (Office of the Ombudsman), represented by Director Agapito B. Rosales.”

The facts, as found by the Court of Appeals, disclose that Johnny Alano, respondent herein, is a train engineer of the Philippine National Railways (PNR). On August 22, 1996, at past 6:00 o’clock in the morning, he was steering a PNR train along the South Superhighway PNR railway, Makati City. Upon reaching the Magallanes Interchange (underneath the overpass), the train rammed the rear portion of a school bus driven by Clemente Alfaro, then crossing the railroad tract. As a result of the incident, Aaron John L. Zarate, one of the students on board the school bus, died, while some of his co-passengers sustained injuries.

On October 29, 1996, Atty. Jeffrey-John L. Zarate, brother of the deceased student, wrote a letter-complaint to the Office of the Ombudsman, petitioner herein, charging the “officers and employees of the PNR responsible for the accident.” Petitioner endorsed the letter to its Fact-Finding and Intelligence Bureau (FFIB) which conducted an investigation. Thereafter, the FFIB filed with the Administrative Adjudication Bureau (AAB), also under the office of petitioner, an administrative complaint against respondent and Jose Dado, PNR General Manager, and Bonaparte C. Roque, PNR Manager, Train and Station Department, docketed as OMB-ADM-0-97-0605. The three were charged with gross neglect of duty, inefficiency, and incompetence in the performance of official duties for having failed to take the necessary precautionary measures in preventing accidents of such nature.

Upon recommendation of the AAB, then Ombudsman Aniano A. Desierto, in a Resolution[4] dated August 14, 1998, exonerated all respondents and dismissed the administrative complaint against them. He found that the accident was not due to respondents’ negligence; that the place of the accident was not intended for public use, particularly by motorists; and that complainant Atty. Jeffrey-John Zarate himself, in his statement given to SPO2 Mario Ocampo on August 22, 1996, blamed the school bus driver for being negligent as the latter should not have traversed the area where the accident took place. The Ombudsman then concluded that “complainant miserably failed to prove that the cause of the accident was attributable to the alleged negligence, incompetence and inefficiency of the respondents.”

This prompted Atty. Zarate to file a motion for reconsideration. In his Order[5] dated March 17, 1999, then Ombudsman Aniano Desierto modified his August 14, 1998 Resolution in the sense that, while maintaining his finding that the accident was caused by the negligence of the school bus driver, respondent should nonetheless be held guilty of “misconduct” for “failing to stop the train immediately after the collision to render assistance to the victims.” Thus, respondent was meted the penalty of suspension from the service for 6 months without pay.

Respondent filed a motion for reconsideration but it was denied in an Order dated August 12, 1999.

Aggrieved, respondent filed with the Court of Appeals a petition for review under Rule 43 of the 1997 Rules of Civil Procedure, as amended, docketed as CA-G.R. SP No. 54967. In its Decision dated April 30, 2001, the appellate court granted the petition and nullified petitioner’s Orders of March 17 and August 12, 1999 suspending respondent for 6 months for misconduct. It held that petitioner’s Resolution dated August 14, 1998, exonerating respondent of the administrative charge, is final and unappealable, hence, can no longer be modified or reversed, pursuant to Section 7, Rule III of Administrative Order No. 07 issued by the Ombudsman.

Petitioner’s motion for reconsideration was likewise denied by the Court of Appeals in its Resolution dated July 18, 2001.

Hence, the instant petition for review on certiorari.

Petitioner contends that the Court of Appeals erred in annulling then Ombudsman Desierto’s Orders of March 17 and August 12, 1999 modifying his Resolution of August 14, 1998 exonerating respondent, considering that Section 7, Rule III of Administrative Order No. 07 allows the filing of a motion for reconsideration of the Ombudsman’s decision or resolution dismissing an administrative case.

On the other hand, respondent, in his comment, prays that the petition be dismissed for being unmeritorious.

The petition lacks merit.

Section 13(8), Article XI of the 1987 Constitution empowers the Office of the Ombudsman to, among others, “promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.” Pursuant to such constitutional authority vested in the Office of the Ombudsman to promulgate its rules of procedure, Administrative Order No. 07 (otherwise known as the “Rules of Procedure of the Office of the Ombudsman”) dated April 10, 1990 was issued. Section 7, Rule III thereof provides:

SEC. 7. Finality of decision. – Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final and unappealable. In all other cases, the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari shall have been filed by him as prescribed in Section 27 of RA 6770. (Underscoring supplied)

Moreover, Section 27 of Republic Act (R.A.) No. 6770 (otherwise known as “The Ombudsman Act of 1989”) provides:

SEC. 27. Effectivity and Finality of Decisions. – (1) All provisionary orders of the Office of the Ombudsman are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after receipt of written notice and shall be entertained only on any of the following grounds:

(1) New evidence has been discovered which materially affects the order, directive or decision;

(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The motion for reconsideration shall be resolved within three (3) days from filing: Provided, That only one motion for reconsideration shall be entertained.

Findings of fact by the Office of the Ombudsman, when supported by substantial evidence, are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month’s salary shall be final and unappealable.

x x x

The above rules may be amended or modified by the office of the Ombudsman as the interest of justice may require. (Underscoring supplied)

From the above constitutional and statutory provisions and Rule, there are two instances where a decision, resolution or order of the Ombudsman becomes final and unappealable: (1) where the respondent is absolved of the charge; and (2) in case of conviction, where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary.

In the instant case, petitioner, in its Resolution dated August 14, 1998, exonerated respondent of the administrative charge. It is implicit in Section 27 of R.A. No. 6770 and Section 7, Rule III of Administrative Order No. 07 that a decision absolving or exonerating respondent of the charge is final and unappealable,[6] meaning, immediately executory.[7] In Alba v. Nitorreda,[8] we upheld the validity of the provisions of Section 27 of R.A. No. 6770 and Section 7, Rule III of Administrative Order No. 07 providing for the immediate finality and non-appealability of the decisions, orders, resolutions, or directives of the Ombudsman in certain cases and declaring that such provisions do not infringe on the due process clause, for the right of appeal is not a natural right, nor a part of due process; it is merely a statutory privilege and may be exercised only in the manner provided by law.[9]

In sum, petitioner, by issuing its Orders dated March 17 and August 12, 1999 modifying its final and immediately executory Resolution of August 14, 1998 exonerating respondent, committed a reversible error.

WHEREFORE, we DENY the instant petition. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 54967 are AFFIRMED.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

Chairperson

RENATO C. CORONA

Associate Justice

ADOLFO S. AZCUNA

Associate Justice

CANCIO C. GARCIA

Associate Justice

CERTIFICATION

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.

REYNATO S. PUNO

Chief Justice

[1] Filed under Rule 45 of the 1997 Rules of Civil Procedure, as amended.

[2] Penned by Associate Justice Portia Aliño-Hormachuelos, and concurred in by Associate Justice Fermin A. Martin, Jr. and Associate Justice Mercedes Gozo-Dadole (both retired), Annex “A,” Petition, Rollo, pp. 29-36.

[6] Barata v. Abalos, Jr., G.R. No. 142888, June 6, 2001, 358 SCRA 575.

[7] Lopez v. Court of Appeals, G.R. No. 144573, September 24, 2002, 389 SCRA 570, citing Lapid v. Court of Appeals, 334 SCRA 738 (2000).

[8] G.R. No. 120223, March 13, 1996, 254 SCRA 753.