THIRD DIVISION
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DR. ULYSSES A. BRITO, (In
His Capacity as oic-regional director of the ncip region iv), Petitioner, - versus - office of the
deputy ombudsman for Respondents. x - - - - - - - - - - - - - - - - - - - - - - x DR. ULYSSES A. BRITO, (In
His Capacity as oic-regional director of the ncip region iv), Petitioner, - versus - COURT OF
APPEALS, office of the deputy ombudsman for
Respondents. |
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G.R. Nos. 167335 & 167337 G.R. No.
173152 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ,
CHICO-NAZARIO, and NACHURA,*
JJ. Promulgated: |
x- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
CHICO-NAZARIO, J.:
For the Court’s consideration are two
consolidated petitions: (1) G.R. Nos. 167335 & 167337, a Petition for Certiorari under Rule 65 of the Rules of
Court, seeking to nullify and set aside the Joint Order[1]
dated 7 December 2004 of the Deputy Ombudsman for Luzon which resolved the
criminal aspect of the charges against private respondents Sandy P. Padilla and
Monico A. Dingal, Jr. in
their favor; and (2) G.R. No. 173152, a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, seeking the reversal of the Court of Appeals’ Resolution[2]
dated 18 October 2005 denying petitioner’s Motion for Reconsideration of the Court
of Appeals’ Resolution dated 27 April 2005 which dismissed the special civil action
for certiorari filed by petitioner
against the Deputy Ombudsman for Luzon on the ground that it was not the proper
remedy to assail the joint order of the Ombudsman. Said special civil action questioned the
Joint Order of the Deputy Ombudsman for
These are the facts of the instant
consolidated petitions.
Private respondents Sandy Padilla,
Engineer II, and Monico Dingal,
Jr., Community Affairs Officer II, are employees of the National Commission on
Indigenous Peoples-Region IV (NCIP-Region IV).
NCIP is the primary agency of the government tasked to implement
Republic Act No. 8371,[4]
otherwise known as “The Indigenous Peoples Rights Act of 1997.” It is the agency authorized by the said law to
issue a Certification Precondition in favor of any entity which desires to
undertake operations within the ancestral domains of the indigenous peoples or
whose proposed projects will affect the ancestral domains.[5]
Private respondents were assigned as members
of a Field-Based Investigation (FBI) team.
This team conducts investigations on the impact of a project on any
community of indigenous peoples, to determine whether the required
Certification Precondition may be properly issued to applicant companies.
In relation to the conduct of
investigations by the FBI team, NCIP Administrative Order No. 3, Series of 1998,
provides that the cost of actual expenses arising from investigations shall be
shouldered by the applicant company, to wit:
Section 4: x x x
a. Requests for NCIP Certification Precondition shall be
filed with the concerned NCIP Regional Office.
The cost of actual expenses in the conduct of the required field-based
investigation, to be undertaken by the concerned NCIP Regional Office, shall be
borne by the applicant. x x x.
In the year 2001, on three separate
occasions, private respondents conducted field-based investigations on proposed
projects of the following companies on the following dates:
|
Name of Company |
Location |
Date of FBI |
|
1.
Kumakata Mining Dev. Corp. (Kumakata) |
Tagcawayan,
Maguibway, Quezon |
|
|
2.
La Concepcion Dev. Corp. (La Concepcion) |
Bagong Nayon, Antipolo, Rizal |
|
|
3.
Rio Tuba Nickel Corp ( |
|
|
Following the termination of the investigations,
private respondent Sandy Padilla, in a short handwritten note to petitioner Dr.
Ulysses Brito, OIC-Regional Director of the NCIP
Region IV, claimed reimbursement for his and private respondent Dingal’s per diems and taxi fares for the said investigations. The handwritten note reads:
Sir,
We are claiming for the per diem and taxi fare
only. These companies did not provide us
our per diem since they are anticipating that guidelines might require them.
Thanks.
Sandy
Padilla[7]
Petitioner approved the request for
reimbursement by respondents for per diem and taxi fares. Thus, on P3,240.00 was granted to each of the private respondents,
broken down as follows:
Name of Company Amount Paid
Kumakata
1,340.00/each
La
TOTAL P3,240.00/each[8]
Later on, however, the three
above-mentioned companies issued their respective certifications claiming that
they had already made payments in favor of the private respondents, thus:
|
Name of Company |
Date of Certification |
Date of FBI |
Amount Paid Each |
|
Kumakata |
|
|
|
|
La |
|
|
|
|
|
|
|
|
|
|
|
Total: |
|
Rio Tuba and La Concepcion,
in their respective affidavits executed by their respective officers, however, explicated
that the allowances given to private respondents did not include per diems and
taxi fares.
On 12 May 2003, convinced that
private respondents’ acts of claiming per diems and taxi fares from their
agency constitute penal and administrative violations, the petitioner filed a
complaint-affidavit charging private respondents of the Complex Crime of Estafa thru Falsification under Article 171(4) of the
Revised Penal Code and violation of Section 3(e) of Republic Act No. 3019 which
were docketed as OMB-L-C-03-0581-E and OMB-L-C-03-1374-K. From the same set of facts, private
respondents were also charged with an administrative case for Gross Dishonesty,
Grave Misconduct and Conduct Prejudicial to the Public Interest, docketed as
OMB-L-A-03-1059-K.
In their Joint-Counter Affidavit[10]
filed on P3,900.00
from the three companies. But they
asserted that the said amount they received from the companies did not include
per diems and taxi fares.
In a Joint Resolution dated
WHEREFORE, in view of the foregoing, it is
respectfully recommended that [the] present criminal and administrative cases
lodged against respondents SANDY PADILLA and MONICO DINGAL, JR. be DISMISSED for being premature. The dismissal of the present cases, however,
is without prejudice to whatever results of any audit investigation that might
later on be conducted by the Commission on Audit (COA) on the matter.[11]
Petitioner filed a motion for
reconsideration. He insisted that as the
one in-charge of the NCIP Region IV, he can, independent of the COA, institute
the said charges. The criminal and the
civil charges against respondents were malum prohibitum, thus these charges should not be made to
depend on the findings of the COA, which will have to separately decide on
filing a case against private respondents should the latter be found to have
violated COA rules and regulations.
In a Joint Order dated
WHEREFORE, PREMISES CONSIDERED, it is most
respectfully recommended that the Joint Motion for Reconsideration dated
On
Believing that the Court of Appeals
is vested with the appellate jurisdiction over decisions of
the Ombudsman pertaining to administrative disciplinary cases,[14]
petitioner elevated the administrative aspect of the Joint Order dated
The Court of Appeals, in a Resolution
dated
Undeterred, petitioner is now before
the Court via a Petition for Review
on Certiorari under Rule 45 of the
Rules of Court assailing the Court of Appeals’ Resolution dated
On
G.R. No. 173152
Petitioner
avers that the decision of the Ombudsman finding private respondents
administratively guilty and imposing upon them the penalty of reprimand is final
and unappealable. Inasmuch as the penalty of reprimand is final
and unappealable under Section 7, Rule III of the
Rules of Procedure of the Office of the Ombudsman and Section 27 of Republic
Act No. 6770, otherwise known as “The Ombudsman Act of 1989,” then the only
legal recourse available to him is a special civil action for certiorari under Rule 65. Petitioner, likewise, insists that the Deputy
Ombudsman for
In
the Comment filed by the Deputy Ombudsman for Luzon, through the Office of the
Solicitor General, it was contended that the Court of Appeals correctly
dismissed the special civil action filed by petitioner since decisions, orders
and resolutions of the Ombudsman in administrative disciplinary cases are to be
appealed to the Court of Appeals under Rule 43 of the Rules of Court. It was, likewise, asserted that Section 27 of
Republic Act No. 6770 and Section 7, Rule III of the Rules of Procedures of the
Office of the Ombudsman, cannot be invoked by petitioner as said provisions
were declared unconstitutional in Fabian
v. Desierto.[16]
Petitioner
is correct in arguing that the decision of the Ombudsman imposing on private
respondents the penalty of reprimand is final and unappealable. Ironically, though, this is the same argument
that struck the death knell to his posturings.
Section
27 of Republic Act No. 6770 partly states:
Sec. 27. Effectivity and Finality of Decisions.
– All provisionary orders of 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 (1)
month’s salary shall be final and unappealable.
In all administrative disciplinary cases, orders,
directives, or decisions of the Office of the Ombudsman may be appealed to the
Supreme Court by filing a petition for certiorari
within ten (10) days from receipt of the written notice of the order, directive
or decision or denial of the motion for reconsideration in accordance with Rule
45 of the Rules of Court.
To
implement Section 27 of Republic Act No. 6770 and pursuant to its power to
promulgate its rules of procedure, the Office of the Ombudsman came up with Section
7, Rule III of the Administrative Order No. 7, which provides:
SEC. 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.
The language of Section 27 of
Republic Act No. 6770 is explicit and categorical when it states that “any
order, directive or decision [of the Office of the Ombudsman] imposing the
penalty of public censure or reprimand, suspension of not more than one (1) month’s
salary shall be final and unappealable.”
Contrary to the Deputy Ombudsman’s
stance, not all items in Section 27 of Republic Act No. 6770 are rendered void
by the Fabian v. Desierto
ruling. The only provision affected by
the Fabian ruling is the last
paragraph in Section 27 which provides that “in all administrative disciplinary
cases, orders, directives, or decisions of the Office of the Ombudsman may be
appealed to the Supreme Court.” This
portion of Section 27 was rendered invalid because it violated Section 30,
Article VI of the Constitution proscribing the enactment of a statute which
increases the appellate jurisdiction of the Court without its advice and
concurrence. Hence, appeals from
decisions of the Office of the Ombudsman in administrative disciplinary cases,
which are not final and unappealable, should be
brought to the Court of Appeals under the provision of Rule 43.
In other words, the only effect of
the Fabian ruling is the designation
of the Court of Appeals as the proper forum and of Rule 43 as the proper mode
of appeal. All other matters in Section
27 of Republic Act No. 6770 remain binding, such as the provision which deals
with the finality of the Ombudsman’s decision when the penalty imposed are
censure, reprimand, suspension of not more than one
month, or a fine equivalent to one-month salary. As held in Lapid v. Court of Appeals[17]:
Our ruling in the case of Fabian vs. Desierto invalidated Section
27 of Republic Act No. 6770 and Section 7, Rule III of Administrative Order No.
07 and any other provision of law implementing the aforesaid Act only insofar
as they provide for appeals in administrative disciplinary cases from the Office
of the Ombudsman to the Supreme Court. The only provision affected by the
Fabian ruling is the designation of the Court of Appeals as the proper forum
and of Rule 43 of the Rules of Court as the proper mode of appeal. All other matters included in said section
27, including the finality or non-finality of decisions, are not affected and
still stand.
Also, in Republic v. Francisco,[18] it was
stressed:
We
agree with petitioner’s contention that the decision of the Ombudsman finding
respondents guilty of simple misconduct and ordering their suspension for one
(1) month without pay is final and unappealable as
provided in Section 27 of R.A. No. 6770 and Administrative Order No. 07,
Section 7, Rule III of the Office of the Ombudsman implementing Section 27 of
R.A. No. 6770. x x x.
x x x x
x x x In the instant case, since
the penalty imposed upon respondents was “one month suspension without pay”
only, as a matter of law, the decision of the Ombudsman is final and unappealable. x x x.
x x x x
Since
the decision of the Ombudsman suspending respondents for one (1) month is final
and unappealable, it follows that the CA had no
appellate jurisdiction to review, rectify or reverse the same. x x
x.
In the instant case, since private
respondents, through the Joint Order issued by the Deputy Ombudsman for
This is not to
say that decisions of the Ombudsman cannot be questioned. Decisions of administrative or
quasi-administrative agencies which are declared by law final
and unappealable are subject to
judicial review if they fail the test of arbitrariness, or upon proof of gross
abuse of discretion, fraud or error of law. When such administrative or
quasi-judicial bodies grossly misappreciate evidence
of such nature as to compel a contrary conclusion, the Court will not hesitate
to reverse the factual findings. Thus, the decision of the Ombudsman may be
reviewed, modified or reversed via petition for certiorari under Rule 65 of the Rules of Court, on a finding that
it had no jurisdiction over the complaint, or of grave abuse of discretion
amounting to excess or lack of jurisdiction.[19]
From the foregoing disquisition, it
is quite evident that petitioner employed the wrong remedy. Instead of filing his special civil action for
certiorari with the Court of Appeals,
petitioner should have filed the same directly with this Court. On this score alone, this petition warrants an
outright dismissal.
Even if this Court treats the
petition filed with the Court of Appeals as one for certiorari under Rule 65, petitioner, nonetheless, failed to adduce
evidence that the Deputy Ombudsman for
In certiorari
proceedings under Rule 65 of the Rules of Court, the inquiry is limited
essentially to whether or not the public respondent acted without or in excess
of its jurisdiction or with grave abuse of discretion.
A tribunal, board or officer acts
without jurisdiction if it/he does not have the legal power to determine the
case. There is excess of jurisdiction
where, being clothed with the power to determine the case, the tribunal, board
or officer oversteps its/his authority as determined by law. And there is grave abuse of discretion where
the tribunal, board or officer acts in a capricious, whimsical, arbitrary or
despotic manner in the exercise of his judgment as to be said to be equivalent
to lack of jurisdiction.
In the instant case, the
Deputy Ombudsman for
Thus, we are inclined to rule and so hold that the
respondents fell short of the conduct expected of them as public officers as
mandated under Section 4(a) of R.A. 6713 which states that: “Public officials and employees shall always
uphold the public interest over and above personal interest. All [government] resources and powers of
their respective offices must be employed and used efficiently, effectively,
honestly and economically, particularly to avoid wastage in public funds and
resources.”
x x x Respondents Sandy P. Padilla
and Monico A. Dingal, Jr.
are hereby meted a penalty of REPRIMAND with a Stern Warning that a repetition
of the same act in the future shall be dealt with more severely. x x
x.[20]
Contrary to the postulation of petitioner,
the Deputy Ombudsman for
G.R. Nos. 167335 and 167337
In the instant special civil action for
certiorari, petitioner insists that
the Deputy Ombudsman for
It is readily clear from petitioner’s
assertions that he is questioning the correctness of the Deputy Ombudsman for
The function of determining what is
sufficient evidence to establish probable cause is the job of the Office of the
Ombudsman.[21] Except in cases when there is grave abuse of
discretion in the exercise of its discretion, which is absent in the instant
case, this Court has adopted a policy of non-interference in the exercise of
the Ombudsman’s constitutionally mandated powers on this matter.[22]
Indeed, this Court is not a trier of facts; the Ombudsman is.[23] This 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.[24] 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 will be
extremely swamped if they could 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.[25] Petitioner presents an issue which touches on
factual findings of the Ombudsman. Such
issue is not reviewable by this Court via certiorari.[26]
IN LIGHT OF ALL THE FOREGOING, the Petitions are DISMISSED. The assailed Joint Order of the Deputy
Ombudsman for
|
|
MINITA V. CHICO-NAZARIOAssociate Justice |
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice |
ANTONIO EDUARDO B. NACHURA
Associate Justice |
ATTESTATION
I attest 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.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson,
Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII
of the Constitution, and the Division Chairperson’s Attestation, 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
* No part.
[1] Rollo (G.R. Nos. 167335 &167337), pp. 20-26.
[2] Rollo (G.R. No. 173152), pp. 29-31.
[3] Sec.4(a) of Republic Act No. 6713 states: “ Public officials and employees shall always uphold the public interest over and above personal interest. All government resources and powers of their respective offices must be employed and used efficiently, effectively, honestly and economically, particularly to avoid wastage in public funds and revenues.”
[4] SEC.
38. National Commission on Indigenous Cultural
Communities/Indigenous People (NCIP). – To carry out the policies
herein set forth, there shall be created the National Commission on ICCs/IPs (NCIP), which shall be the primary government
agency responsible for the formulation and implementation of policies, plans
and programs to promote and protect the rights and well-being of the ICCs/IPs and the recognition of their ancestral domains as
well as their rights thereto.
[5] Section 44 (m) of Republic Act No. 8371.
[6] Rollo (G.R. Nos. 167335 & 167337), pp. 28-29.
[7]
[8]
[9]
[10]
[11]
[12]
[13] In Estrada v. Desierto, G.R. No. 156160, 9
December 2004 (445 SCRA 655, 665), it was held that “the remedy of aggrieved
parties from resolutions of the Office of the Ombudsman finding probable cause
in criminal cases or non-administrative cases, when tainted with grave abuse of
discretion, is to file an original action for certiorari with this Court and not with the Court of Appeals. In
cases when the aggrieved party is questioning the Office of the Ombudsman’s
finding of lack of probable cause, x x x, there is likewise the remedy of certiorari under Rule 65 to be filed with this Court and not with
the Court of Appeals.
[14] In Fabian v. Desierto (356 Phil. 787, 799),
it was ruled that appeals from decisions of the Office of the Ombudsman in
administrative disciplinary cases should be taken to the Court of Appeals under
Rule 43 of the 1997 Rules of Civil Procedure.
[15] Rollo (G.R. No. 173152), p. 172.
[16] Supra note 14.
[17] 390 Phil. 236, 248 (2000).
[18] G.R. No. 163089,
[19]
[20] Rollo (G.R. No. 167335 & 167337), pp. 24-25.
[21] Pontejos v. Office of the Ombudsman, G.R. No. 158613-14,
[22] Villanueva
v. Ople, G.R. No. 165125,
[23] Chan v. Court of Appeals, G.R. No.
159922,
[24] Dir. Domondon v. Sandiganbayan, 384 Phil. 848, 857 (2000).
[25]
[26] Basuel v. Fact-Finding &
Intelligence Bureau (FFIB), G.R. No. 143664,