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EUSTAQUIO B. CESA, Petitioner, - versus - OFFICE OF THE OMBUDSMAN and COMMISSION ON
AUDIT-REGION VII, Respondents. |
G.R. No. 166658
Present: Puno, C.J., Quisumbing, Ynares-Santiago, Carpio,* Austria-Martinez, Carpio Morales, Azcuna, Tinga, Chico-Nazario, Velasco, Jr., NACHURA, REYES, LEONARDO-DE CASTRO, and
BRION, JJ. Promulgated: April 30, 2008 |
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QUISUMBING, J.:
This petition for review on certiorari assails the December
20, 2004 Decision[1]
of the Court of Appeals in CA-G.R. SP No. 77359 affirming with modification
the Decision[2]
dated August 16, 2001 and Order[3]
dated October 21, 2002 of the
Office of the Ombudsman-Visayas in
OMB-VIS-ADM-98-0150. The Office of the
Ombudsman suspended Cebu City Treasurer Eustaquio B. Cesa for six months
without pay for tolerating illegal practices relative to the granting of cash
advances to paymasters.
Here are the facts, culled from the records:
On P216 million fraudulently incurred by presenting
cash items such as payrolls and vouchers already previously credited to her
account to cover the balance or shortage during cash counts. Her unliquidated cash advances were more than
P18 million. The government auditors discovered that Badana had an
average monthly cash advance of P7.6 million in excess of her monthly
payroll of P5.7 million, and was granted more advances without
liquidating previous advances.
On
On
Cesa argued before the Ombudsman that he
could not grant cash advances as the authority belongs to a higher officer and
that he signed the cash advance vouchers not as approving officer but because
his signature was required therein. He
further argued that Badana’s cash advances were legal
and necessary for city workers’ salaries and that the matter could be resolved
by the city accountant. He also
emphasized that since he had under him five department heads, he was not
expected to review the work of some 370 workers under them, by virtue of
division of labor and delegation of functions.[9]
On
Before the Court of Appeals, Cesa argued that there was lack
of due process because the complaint filed against him was not verified. He also argued in his petition for review[11]
that the Ombudsman had no power to directly suspend him and that there was no
legal and factual basis to suspend him.
On
WHEREFORE, the instant Petition is partly GRANTED in that the assailed Decision and Order of the Ombudsman (Visayas), in administrative case OMB-VIS-ADM-98-0150, which are hereby AFFIRMED, but MODIFIED in so far as the penalties imposable therein are hereby DECLARED only recommendatory and should be directed to the proper officer or authority concerned, in the City of Cebu, for their enforcement and implementation. No pronouncement as to costs.
SO
ORDERED.[12]
The Court of Appeals dismissed Cesa’s
gripe that there was lack of due process as the Ombudsman can undertake
criminal or administrative investigations sans any complaint. It ruled that procedural infirmities, if any,
were cured when petitioner was present during the preliminary conference,
submitted his counter-affidavit and supplemental counter-affidavit, actively
participated in the proceedings by cross-examining witnesses, and filed a
motion for reconsideration. It found Cesa negligent for tolerating the illegal practices on cash
advances because he approved the paymasters’ requests for cash advances based
on pieces of paper without any particulars and without diligent supervision
over them. The Court of Appeals ruled
that the Arias ruling[13]
where this Court held that heads of offices have to rely to a reasonable extent
on their subordinates, is inapplicable to this case for it had not been alleged
that Cesa conspired with Badana. What was proven was that his negligence in
carrying out his duties as city treasurer contributed to giving Badana the opportunity to malverse
more than P18 million in public funds.
Hence, this petition.
On
Before us, Cesa submits the following issues for our
resolution:
I.
WHETHER, AS The court of appeals ruled IN ITS
ASSAILED DECISION DATED DECemBER 20, 2004, the power of the ombudsman to motu proprio conduct investigations as
provided in section 13, article xi of the 1987 constitution and IN section 15
[1] of the ombudsman act (RA 6770) effectively dispenses with PETITIONER’S fundamental
right of due process and to be sufficiently informed of the cause and nature of
the accusation against him.
II.
WHETHER, IN THE LIGHT OF HIS POWER TO MOTU
PROPRIO CONDUCT INVESTIGATIONS AS PROVIDED IN SECTION 13, ARTICLE XI OF THE
1987 CONSTITUTION AND IN SECTION 15[1] OF THE OMBUDSMAN ACT (RA 6770), The OMBUDSMAN
CAN VALIDLY REQUIRE A RESPONDENT IN AN ADMINISTRATIVE CASE TO SUBMIT
COUNTER-AFFIDAVITS OR COUNTERVAILING EVIDENCE WITHOUT FURNISHING HIM A COPY OF
THE COMPLAINT AND THE AFFIDAVITS OR EVIDENCE THAT NEEDED TO BE COUNTERED.
III.
WHETHER, AS THE COURT OF APPEALS RULED IN ITS
ASSAILED DECISION DATED DECEMBER 20, 2004, THE RIGHT TO DUE PROCESS IN AN
ADMINISTRATIVE CASE IS LIMITED to the opportunity to air one’s side AND to seek
reconsideration or includes the right to be sufficiently informed of the nature
and cause of accusation against him and the right to be peNalized only on the
basis of the original act complained of.
iv.
whether, as the court of appeals ruled in its
assailed decision dated
v.
whether, as the court of appeals ruled in its
assailed decision dated december 20, 2004, the doctrine that a head of office
has the right to rely on his subordinates and to presume regularity in the
subordinate’s performance of official functions applies only in criminal cases
involving conspiracy and not in cases of alleged negligence.[15]
In gist, the issues to be resolved are (1) Was Cesa’s right to due process violated when he was suspended
for six months as city treasurer? and (2) Did the Court of Appeals err in ruling that the Arias
ruling is inapplicable to this case?
Cesa stresses that the original
administrative complaint, backed by his own affidavit,[16] was filed only against Badana. He was impleaded based only on an order which
did not specify any charges, required to submit his counter-affidavit when
there was no affidavit, formal charge or complaint against him, and the
evidence against him was not divulged to him.
These circumstances allegedly violate the Ombudsman Rules of Procedure
in administrative cases. He argues that
since his employment is his livelihood, which partakes of a constitutionally
protected property right, he can only be penalized based on specific acts
charged, and the Ombudsman is duty-bound to inform him of the cause or nature
of the specific accusation against him.
Cesa also argues that since the accusations and evidence kept on evolving
and mutating, he was not properly accorded his right to be informed. He points out that even after a formal offer
of exhibits by the original complainant and after the Ombudsman resolved the
criminal aspect of the case, the Ombudsman continued to receive new accusations
and even required him to submit countervailing evidence, violating his
constitutional right to be informed of the nature and cause of the accusation
against him and to be informed of the specific acts or omissions upon which he
was sought to be penalized.
Invoking Arias, Cesa insists
he could rely on his subordinate, the head of the cash division, who performed
her functions well, and that no inference of negligence can be drawn from the
act of relying on subordinates as government operates by division of labor and
delegation of functions.
The Ombudsman and the Commission on Audit counter that Cesa was accorded due process as he was amply heard in the
proceedings; administrative due process simply means reasonable opportunity to
present a case, not a trial-type proceeding; the evidence overwhelmingly
established Cesa’s guilt for neglect; and findings of fact of the Ombudsman
deserve great weight and must be accorded full respect and credit.[17]
After carefully considering the parties’ submissions, we find
no cogent reason to reverse the appellate court’s ruling.
On the first issue, Ang
Tibay v. The Court of Industrial Relations[18]
outlines the basic due process requirements in administrative
cases. Foremost are the rights to a
hearing and submit evidence in support of one’s case.[19] Its essence:
opportunity to explain one’s side or seek a reconsideration of the
ruling.[20]
The standard of due process of administrative tribunals allows certain
latitude as long as the element of fairness is practiced. There is no denial of due process if records
show that hearings were held with prior notice to adverse parties. Even without notice, there is no denial of
procedural due process if the parties were given the opportunity to be heard.[21] Due process in administrative proceedings simply
means an opportunity to seek a reconsideration of the order complained of and it
cannot be fully equated with that in strict jurisprudential sense. A respondent is not entitled to be informed
of the preliminary findings and recommendations of the investigating agency; he
is entitled only to a fair opportunity to be heard and to a decision based on
substantial evidence. No more, no less.[22] In fine, Cesa had
no right to be notified of the auditing team’s preliminary report while graft
investigators were reviewing it. His contention
that he was required to file a counter-affidavit sans a formal charge
against him belies any claim of denial of due process.
The appellate court correctly ruled that procedural lapses,
if any, were cured when Cesa participated in the preliminary conference,
submitted his counter-affidavit and supplemental counter-affidavit, actively
participated in the proceedings by cross-examining witnesses, and filed a
motion for reconsideration before the Office of the Ombudsman. Cesa was given
every opportunity to explain his side and to present evidence in his defense
during the administrative investigation.
True, the case mutated when the graft investigators discovered evidence
against and impleaded the city officials, but Cesa
filed a supplemental affidavit to controvert the charges and later participated
in the hearings. In fact, he even filed
a motion for reconsideration of the Ombudsman’s decision.
On the second issue, in Alfonso v. Office of the President,[23]
where this Court held that Arias was not applicable, we ruled that a
public official’s foreknowledge of facts and circumstances that suggested an
irregularity constitutes an added reason to exercise a greater degree of
circumspection before signing and issuing public documents.[24]
By failing to prevent the
irregularity that Cesa had reason to suspect all along or to take immediate
steps to rectify, Cesa had tolerated the same and
allowed it to wreak havoc on the coffers of the city.
Finally, we rectify the incorrect appreciation by the
appellate court of the power of the Ombudsman to impose administrative
sanctions on government officials and employees. The Court of Appeals’ modification of the
Ombudsman ruling invoked a constitutional provision[25]
which uses the word “recommend.”
The 1987 Constitution states that the Ombudsman has the power
to recommend the suspension of erring government officials and ensure
compliance therewith,[26]
which means that the recommendation is not merely advisory but mandatory.[27] Under Republic Act No. 6770[28]
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.[29] The framers of our Constitution intended to
create a stronger and more effective Ombudsman, independent and beyond the
reach of political influences and vested with powers that are not merely
persuasive in character.[30] The lawmakers envisioned the Ombudsman to be
an “activist watchman,” not merely a passive one.[31]
In Office of the Ombudsman v. Court of Appeals,[32]
where the treasury operations assistant of the Bacolod
City treasurer’s office was suspended for six months without pay for cash
shortages due to the machinations and dishonest acts of a paymaster, we ruled
that while Section 15(3)[33]
of Rep. Act No. 6770 states that the Ombudsman has the power to recommend the
suspension of government officials and employees, the same Section 15(3) also
states that the Ombudsman in the alternative may “enforce its disciplinary
authority as provided in Section 21”[34]
of Rep. Act No. 6770. The word “or”
in Section 15(3) before the phrase “enforce its disciplinary authority as
provided in Section 21” grants the Ombudsman this alternative power.[35] Ergo, the Court of Appeals erred in ruling
that the Ombudsman has no power to directly impose administrative sanctions on
public officials.
WHEREFORE, the petition is DENIED. The assailed Decision dated
SO ORDERED.
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LEONARDO A. QUISUMBING Associate Justice |
WE
CONCUR:
Chief Justice
CONSUELO
YNARES-SANTIAGO
Associate Justice |
ANTONIO
T. CARPIO Associate Justice |
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MA.
ALICIA AUSTRIA-MARTINEZ Associate Justice |
RENATO
C. CORONA Associate Justice |
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CONCHITA
CARPIO MORALES Associate Justice |
ADOLFO
S. AZCUNA Associate Justice |
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DANTE O. TINGA Associate Justice |
MINITA V. CHICO-NAZARIO Associate Justice |
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PRESBITERO J.
VELASCO, JR. Associate Justice |
ANTONIO EDUARDO
B. NACHURA Associate Justice |
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RUBEN T. REYES Associate Justice |
TERESITA J. LEONARDO-DE CASTRO Associate Justice |
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ARTURO
D. BRION Associate Justice |
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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.
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REYNATO S. PUNO Chief Justice |
* On leave.
[1] CA rollo, pp. 493-503.
Penned by Associate Justice Vicente L.
[2]
[3]
[4]
CA rollo, pp. 74-75.
[5]
[6] Presidential Decree No. 1445 (1978), Ordaining and Instituting A Government
Auditing Code of the Philippines; Republic Act No. 7160 (1992), An Act Providing For A Local Government Code
of the 1991.
[7] Commission on Audit
Circular No. 90-331 (1990), Circular No. 92-382 (1992), Circular No. 97-002
(1997).
[8] CA rollo,
p. 35. Other practices that
facilitated the incurrence of the shortage were: the accounting division’s late
submission of financial reports and supporting schedules and vouchers; delay in
the verification and reconciliation of paymasters’ accountability; failure to
indicate on the face of the disbursement voucher the legal purpose for the cash
advances, the office or department and number of payees and payroll period
covered by it; the amount of cash advance for salary payments were not equal to
the net amount of the payroll for a pay period; all the disbursement vouchers
covering the cash advances were not
supported by payrolls or list of payees.
[9]
[10]
[11]
[12]
[13] Arias v. Sandiganbayan, G.R. Nos.
81563 and 82512,
[14] CA rollo, pp. 520-526.
[15] Rollo, pp. 238-239.
[16] CA rollo, p. 73.
[17] Rollo, pp. 306-334.
[18] 69 Phil. 635 (1940).
[19]
[20]
National Police Commission v. Bernabe,
G.R. No. 129914,
[21]
Adamson &
Adamson, Inc. v. Amores, No. L-58292,
[22] Viva Footwear Manufacturing Corporation v. Securities and Exchange Commission, G.R. No. 163235, April 27, 2007, 522 SCRA 609, 615-616.
[23] G.R. No. 150091,
[24]
[25] Constitution, Art. XI, Sec 13, par. (3).
Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:
x x x x
(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.
x x x x
[26]
[27] Office of the Ombudsman v.
[28] An
Act Providing for the Functional And Structural Organization of the Office of
the Ombudsman, and for Other Purposes, approved on
[29] Estarija v. Ranada, G.R. No. 159314, June 26, 2006, 492 SCRA 652, 674; Commission on Audit v. Hinampas, G.R. Nos. 158672, 160410, 160605, 160627 and 161099, August 7, 2007, 529 SCRA 245, 258.
[30] Ledesma
v. Court of Appeals, G.R. No. 161629,
[31] Office of the Ombudsman v. Court of Appeals, G.R. No. 160675, June 16, 2006, 491 SCRA 92, 119.
[32] G.R. No. 168079,
[33] SEC. 15. Powers, Functions and Duties.─ The Office of the Ombudsman shall have the following powers, functions and duties:
x x x x
(3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer;
x x x x
[34] SEC. 21. Officials Subject To Disciplinary Authority; Exceptions.─ The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.
[35] Supra note 32, at 807-808.