Republic of the
Supreme Court
THIRD DIVISION
ARMANDO F. CHAN, G.R.
NO. 159298
Petitioner,
Present:
YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
and
NACHURA,
JJ.
HON.
SIMEON V. MARCELO,
in his
capacity as OMBUDSMAN,
ANTONIO
A. ODEJERTE, Borongan,
JR.,
and VIRGILIO G. ALERIA All
from
Department of Public Works and
Highways
(DPWH) Engineering
District,
Catarman,
Respondents.* July
6, 2007
x-
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- - - - - - - - - - x
D E C I S I O N
AUSTRIA-MARTINEZ,
J.:
Armando
F. Chan (petitioner) assails in his Petition for Review on Certiorari
under Rule 45 of the Rules of Court the August 29,
2002 Decision[1] of the Court of Appeals (CA), docketed as CA-G.R. SP
No. 68022, affirming the March 1, 2001 Decision of the Office of the Ombudsman
(Ombudsman), as well as the CA's July 25, 2003
Resolution, denying his Motion for Reconsideration.[2]
The
material facts are of record.
In his
Affidavit-Complaint,[3] docketed as OMB-ADM-0-99-0431, petitioner
charged before the Ombudsman the following
officials of the Department of Public Works and Highways (DPWH),
Northern Samar Engineering District, Catarman: District Engineer Antonio A. Odejerte
(Odejerte),
Assistant District Engineer Serafin V. Perez
(Perez), Construction Section Chief David P. Adongay,
Jr. (Adongay), and
Assistant Construction Engineer Virgilio G. Aleria (Aleria), for grave misconduct and conduct prejudicial to
the best interest of the service allegedly committed by taking advantage of
their official functions to implement a barangay
sports facilities project (subject project) in Sitio Barikig, Barangay Urdaneta, Lavezares, Northern Samar, marred by the following irregularities:
First, the
public funds used for the subject project were realigned from a five-seater public toilet project in Sitio
Barikig, Barangay
San Miguel, Lavezares, Northern Samar,
in violation of existing regulations in that the site for the subject project is the private property of Nonilon
Ebdane and Moises Parane, as shown by tax declarations issued in their names.
Second,
the project cost of P239,126.95 is excessive
and unconscionable considering that the
construction work undertaken consisted of mere excavation and filling, and was
completed within 15 days or half of the
contract period.
Third, the
photograph[4] of the project site taken on August 28, 1998 shows
that the subject project is non-existent, contrary to the Statement of Time
Lapsed and Work Accomplished[5] and Certificate of
Completion[6] issued by Aleria on March
14, 1998 and the Certificate of Acceptance[7] issued on March 18, 1998 by Bienvenido
Cagsawa (Cagsawa), who was
the Barangay Chairman of Barangay
Enriqueta, not Barangay
Urdaneta where the subject project is situated.
In their
Counter-Affidavits[8] and Joint Rejoinder-Affidavit,[9] Odejerte, Aleria, Adongay and Perez explained that the questioned realignment
is supported by official documents,[10] including a P239,126.95 because the
topography of the area required so much volume of cutting and filling to be
done.[16] Finally, to prove that the subject project had been completed
and turned over, respondents presented photographs[17] of the project site and a Certificate of Acceptance[18] issued by Parina.
After
trial, the Overall Deputy Ombudsman, Margarito P. Gervacio Jr., approved
a Decision dated
WHEREFORE, premises considered, the
instant complaint against Engineers ANTONIO A. ODEJERTE, DAVID P. ADONGAY, JR.
and VIRGILIO G. ALERIA is hereby provisionally DISMISSED, without prejudice to
its refiling if circumstances on the result of the
post-audit examination report warrants. The complaint against SERAFIN V. PEREZ,
JR. is DISMISSED for having been rendered moot and academic.
The Resident Auditor of DPWH-Northern Samar
Engineering District, Catarman, Northern Samar, is hereby directed to complete its post-audit
examination in the questioned project without further delay and after which, to
immediately inform this Office of the result of the said post audit examination
within five (5) days upon completion of the same.
SO ORDERED.[20]
Petitioner then went to the CA on a
Petition for Certiorari[21] under
Rule 65 of the Rules of Court but the same was dismissed by the CA in the
August 29, 2002 Decision assailed herein. He filed a Motion for Reconsideration which the CA
denied in the assailed Resolution dated
Hence, the present petition raising the
following issues:
I
Whether or not the Court of
Appeals committed grave abuse of
discretion when it completely deviated from the legal definition and the
required quantum of proof of substantial evidence in upholding the decision of
the Office of the Ombudsman despite the glaring circumstances that the latter's
decision was done capriciously, whimsically or wantonly tantamount to grave
abuse of discretion.
II
Whether or not the Court of
Appeals, in ruling out [that] certiorari under Rule 65 of the Rules of Court is not proper remedy, misconstrued or misapplied the
doctrine laid down in
III
Whether or
not the Court of Appeals correctly applied in the present case the rule that
[a] Petition for Certiorari will fail unless a motion for reconsideration is
filed.
We resolve the second and third issues
ahead of the first.
Citing Fabian v.
Desierto,[22] the CA
held that petitioner should have filed,
not a Petition
for Certiorari under Rule 65, but a Petition
for Review under Rule 43, as this is the proper remedy from the March 1,
2001 Ombudsman Decision. While it
acknowledged that a Petition for Certiorari may also
be filed, the
CA held that petitioner's recourse to it
was not proper because the acts of the Ombudsman which petitioner sought to be
corrected consisted of mere errors in judgment which do not amount to abuse of discretion. It also found his
petition premature for omitting to file a motion for reconsideration with the
Ombudsman.[23]
The CA is not entirely correct.
Following our ruling in Fabian v. Desierto,
the Ombudsman issued Administrative Order No. 17 dated
Section 7. Finality and
execution 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, executory and unappealable. In all other cases,
the decision may be appealed to the Court of Appeals on a verified petition for
review under the requirements and conditions set forth in Rule 43 of the Rules
of Court, within fifteen (15) days from receipt of the written Notice of the
Decision or Order denying the Motion for Reconsideration.
x x x x
A decision of the Office of the
Ombudsman in administrative cases shall be executed as a matter of course. The
Office of the Ombudsman
shall ensure that the decision shall be strictly enforced and
properly implemented. The refusal or failure by any officer without just cause
to comply with an order of the Office of the
Ombudsman to remove, suspend, demote, fine, or censure shall be a ground
for disciplinary action against said officer.(Emphasis ours)
The
foregoing rule is based on Section 27 of Republic Act No. 6770[25]
which provides:
SEC. 27. Effectivity and Finality of Decisions. - (1) All provisionary orders at the Office of the Ombudsman are immediately effective
and executory.
x x x x
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 (Emphasis ours)
Notably, exoneration is not mentioned
in Section 27 as final and unappealable. However,
its inclusion is implicit for, as we held
in Barata v. Abalos,[26] if a sentence of censure, reprimand or
one-month suspension is considered final and unappealable,
so should exoneration.
Being
final and unappealable, a judgment of exoneration is not correctible by motion for reconsideration under
Section 8[27]
of the Procedure in Administrative Cases in the Ombudsman. In Ombudsman v. Alano,[28]
we reversed the Ombudsman for entertaining a motion for reconsideration and modifying
its earlier judgment absolving respondent Alano of
the administrative charge, thus:
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
In sum, petitioner, by issuing
its Orders dated March 17 and
With
more reason, exoneration cannot be appealed by a petition for review under Rule 43
with the CA.[29]
Nonetheless, it is a settled
jurisprudence that a judgment exonerating the respondent in an administrative
case may be questioned for arbitrariness or oppressiveness by way of a petition for certiorari
under Rule 65.[30] Thus, the remedy taken by herein petitioner
in filing a Petition for Certiorari with the CA assailing the March 1,
2001 Ombudsman Decision dismissing the administrative case against respondents
was proper. It was also seasonably filed, notwithstanding the lack of a motion
for reconsideration for no such prior recourse is allowed under the rule aforequoted.
Whether
the Petition for Certiorari filed with the CA had merit, however, is another matter.
Petitioner does
not question the dismissal of the administrative complaint against Serafin V. Perez.[31] It is only the
provisional dismissal of OMB-ADM-0-99-0431 as against
respondents Odejerte, Adongay,
and Aleria which remains in question.
In its
Anent the issue on overpricing, there being no single
evidence submitted by the complainant and respondents having fully explained that
the amount of P239,126.95 is not excessive, the mere allegation of the
complainant sans proof to support it,
must fail.
We
also find merit in respondents' claim that nothing is questionable if the
assailed project was implemented and completed ahead of time. We cannot but
agree that government projects completed early or on time should be lauded
rather than condemned.
x
x x x
With
regard to the second issue, i.e., whether or not the assailed project was
constructed, we rule in the affirmative. Taking the evidence of the complainant
as against that of the respondents, we cannot but conclude that the sports
facilities were really constructed.
The
complainant based his allegations solely on the picture of the site where the
disputed project is supposed to have been constructed, which evidence cannot be
given greater weight than those adduced by the respondents.
On
the other hand, the respondents proved the existence of the assailed project by
presenting the following pieces of evidence:
1.
Statement of
Time Elapsed and Work Accomplished dated March 14, 1998 signed by respondents Virgilio Aleria, David Adongay, Serafin Perez, Jr. and
Antonio Odejerte showing the completion of the sports
facilities at Sitio Barikig,
Lavezares, Norther Samar;
2.
Certification
of Completion dated
3.
Certificate of
Acceptance dated
4.
Inspection
Report dated March 18, 1998 signed by Virgilio Aleria, Victorio de Silva, Sandy Pua, Maximo Resuello,
Jr., David Adongay, Jr., Serafin
Perez, Jr. and Antonio Odejerte proving that the
subject facility was completed and inspected; and
5.
Pictures
showing the completed Phases I, II and III of the constructed Barangay Sports Complex at Sitio Barikig, Lavezares,
These
pieces of documentary evidence undoubtedly negated the complainants allegation
that the sports facilities never existed. The herein respondents have in their
favor the presumption of regularity in the performance of duty. As testified to
by witnesses Bartolome Tan, Jr. former Resident
Auditor, Arnulfo V. Galenzoga,
Resident Auditor and Mrs. Elvira Dones, Records
Officer, all of DPWH - Northern Samar Engineering
District, the documetns are genuine. Besides, it
would have been impossible for the abovenamed
government officials/employees to sign, approve, certify and accept a completed
project that is non-existent, knowing fully welll the
dire consequences of false representations.[32]
The
CA correctly sustained the foregoing views of the Ombudsman. Petitioner's
evidence on these particular issues was controverted
overwhelmingly by the aforecited evidence of
respondents. Petitioner appears to have conceded as much for he no longer
traversed these issues in his Petition.
The issue that petitioner continues to
harp on in the present petition is whether the project site is a private
property or a public property.[33]
Respondents presented Annexes 1 and
1-a to prove that the project site was donated by Daza
to Barangay Urdaneta and that the
latter accepted the donation. They also presented a
In his Reply-Affidavit,[35] however, petitioner presented an October 15,
1997 Deed of Donation (Annex A) and an October 21, 1997 Certificate of
Acceptance (Annex A-1) registered also as Document No. 638, Page No.
27, Book No. II, Series of 1997, of the notarial
record of Atty.
Serafin Clutario, but are
materially different from Annexes 1 and 1-a
of respondents, in the following aspects:
a) Annex A states that the donation is in
favor of Barangay Enriqueta while
Annex 1 states that the donation is in favor of Barangay Urdaneta;
b) the second witness
to Annex A is different from the second witness to Annex 1;
c) Annex A-1 cites Resolution No. 7 of the Sangguniang Barangay of Enriqueta as
basis of the acceptance while in Annex 1-a, acceptance is based on Resolution
No. 4 of the Sangguniang Barangay of Urdaneta;
d) in Annex A-1, acceptance of the donation
was made by Cagsawa as Barangay Chairman of Barangay Enriqueta while in
Annex 1-a, acceptance was made by Parina as Barangay Chairman of Barangay Urdaneta; and
e) Annexes A and A-1 are certified true
copies of the documents on file with the Regional Trial Court of Allen,
Northern Samar while Annexes 1 and 1-a are
authenticated copies of documents on file with the DPWH District Office.
Clearly, the two sets of documents
are conflicting. Such disparity, however, cannot be resolved by us here and now
for the issue - whether the donee is Barangay Enriqueta
or Barangay Urdaneta - is purely factual, one best left to the
post-audit jurisdiction of the Commission on Audit. Besides, there is no
necessity for us to look into said issue because, regardless of which set of documents should prevail, one
conclusion is inevitable that at the time the subject project was implemented, the
project site had already become public property by virtue of the donation
effected. Petitioner's
objection to the project as having been built on private property is therefore
specious.
In fine, the CA is correct
in denying the petition to annul the subject Decision of the Ombudsman.
WHEREFORE,
the petition is DENIED for lack of
merit.
No
costs.
MA. ALICIA AUSTRIA-MARTINEZ
Associate
Justice
WE CONCUR:
CONSUELO
YNARES-SANTIAGO
Associate Justice
Chairperson
MINITA V.
Associate Justice Associate Justice
ATTESTATION
I attest 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 Courts Division.
CONSUELO
YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
C
E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of
the Constitution, and the Division Chairpersons attestation, it is hereby
certified 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
Courts Division.
REYNATO S. PUNO
Chief Justice
* The Court of Appeals, as respondent, is deleted from the title of the petition, per Section 4, Rule 45 of the Rules of Court.
[1] Penned by Associate Justice Remedios A. Salazar-Fernando with the concurrence of
Associate Justices Romeo J. Callejo, Sr. (now a retired member of the Supreme
Court) and Danilo B. Pine; rollo, p. 35.
[2]
[3]
[4]
[5]
[6]
[7] CA rollo, p. 63.
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16] Volume Computation, id. at 89.
[17]
[18]
[19] As
to the criminal aspect docketed as OMB-VIS-CRIM-99-0666, the same was also
dismissed in a Resolution dated October 27, 2001 approved by Deputy Ombudsman for the Visayas Primo C. Miro; id. at 270.
[20]
[21]
[22] 356 Phil. 787, 804 (1998).
[23] CA Decision, rollo, p. 42-45.
[24] Rules of Procedure in the Office of the Ombudsman
[25] The Ombudsman Act of 1989.
[26] 411 Phil. 204, 212
(2001).
[27] Section 8. Motion for
Reconsideration or Reinvestigation; Grounds. - Whenever allowable, a motion for
reconsideration or reinvestigation may only be entertained if filed within ten
(10) days from receipt of the decision or order by the party on the basis of
any of the following grounds:
a) New evidence had been discovered which
materially affects the order, directive or decision;
b) Grave errors of facts or laws or serious
irregularities have been committed prejudicial to the interest of the movant. Only one motion for reconsideration or reinvestigation
shall be allowed, and the Hearing Officer shall resolve the same within five (5) days from the date of submission for
resolution.
[28] G.R. No. 149102,
[29] Republic of the Philippines v.
Francisco, G.R. No. 163089,
[30] Barata v. Abalos, Jr., supra note 26; Enemecio
v. Office of the Ombudsman, 464 Phil. 102, 113 (2004).
[31] Petitioner did not implead Serafin V. Perez as respondent.
[32] CA rollo, pp. 44-46.
[33] Rollo, pp. 15-28.
[34] While this document was mentioned in the
[35] CA rollo, p. 81.