Republic
of the
Supreme
Court
---
FIRST
DIVISION
|
MARITA C. BERNALDO, Petitioner, - versus -
Respondents. |
G.R. No. 156286
Present: PUNO, C.J.,
Chairperson, CARPIO, AZCUNA, and LEONARDO-DE CASTRO,
JJ. Promulgated:
|
x--------------------------------------------------------------------------------------------------------------------x
DECISION
LEONARDO-DE CASTRO, J.:
Marita
C. Bernaldo filed aAt bar is a
Petition for Review on Certiorari under
Rule 45 of the Rules of Court, wherein
petitioner Marita C. Bernaldo (“Bernaldo”) assailing
assailed the Resolution[1]
dated “Assailed
Rulings”). The Aassailed
Rrulings
affirmed the Order[s][3]
dated June 7, 2001 and December 26, 2000 of the Office of the Ombudsman
in OMB-ADM-0-93-0411, finding petitioner Bernaldo
administratively liable for “conduct grossly prejudicial to the best interest
of the service” and ordering her suspension for a period of nine (9) months
without pay and other benefits. The public respondents,
through the Office of the Solicitor General, filed theirits
Comment[4]
dated
her Reply[5]
dated
The
facts are culled from the records of the case.
The
Department of Public Works and Highways (“DPWH”)
had nine (9) river dredging projects in duly awarded
to various private contractors. Among these projects were the Channel
Improvement of Calaguiman River in Samal, “Calaguiman
River Project”);
the Channel Improvement of Almacen River I in Hermosa, “Almacen
River I Project”); and the Channel
Improvement of Almacen River II also
in Hermosa, “Almacen
River II Project”).
Petitioner
Bernaldo was the DPWH Region III Project Engineer of tThe
Almacen River II Pproject
was awarded toand
L.J. Cruz Construction and was the
contractor. The costcontract
price of the said project was P d the
projectwork on its
completion on In a Statement of Work Accomplished[6]
(SWA) dated August 31, 1988 and a Certificate of Final Inspection and Certificate of Final Acceptance[7] dated September 1, 1988, the Almacen
River II Pproject
was certified 100% completed “in accordance with the approved plans and
specifications” by the contractor and the DPWH Region III Engineers, namely, Marita C. Project
Engineer - Marita C. Bernaldo as the Project
Engineer;, District
Engineer - Adolfo M. Flores as the
District Engineer;, Chief of
Construction Division - Celestino R.
Contreras,
Chief of Maintenance Division - as the Chief of
Construction Division; Angelito M. Twaño, as the Chief of
Maintenance Division; Chief of Planning and Design
Division - Augusto A. Mendoza as the Chief of
Planning and Design Division,; Chief of
Materials and Quality Control Division - Andrelito P. Tagorda, Assistant
Regional Director - as the Chief of
Materials and Quality Control Division; Regulo V.
Fernandez,
as the
Assistant Regional Director; and Regional Director - Jose
C. Pendoza (collectively, the “DPWH
Region III Engineers”) as the Regional Director. The contractor was eventually paid 93.58% of
the contract
pricecost.
However,
a contrary finding as to the accomplishment of works involving all three
projects was reported by a Survey and Investigation Team of the Bureau of
Design of the DPWH (the “Survery Team”) composed of Felix
V. Camaya, Eustacio Y. Cano, and Rogelio A. Hernandez (survey team). In its Field
Survey and Investigation Report[8]
dated survey Tteam
indicated, among others, that the amount of work accomplished by L.J. Cruz
Construction on the Almacen River II Pproject
was only about
21% completed. Moreover, in
a Letter-Report[9] dated
Rafael R.
Cabigao, the equipments utilized on the Almacen River II pProject
waswere
evaluated and it was stated therein disclosed that the
same could not possibly accomplish the reported full completion of
the said project.
Based on the foregoing reports, the
DPWH Region III Engineers connected with the projects were all administratively
charged for Falsification, Dishonesty, and Conduct Prejudicial to the Best
Interest of the Service before the Administrative Adjudication Bureau (AAB) of
the Office of the Ombudsman in docketed as OMB-ADM-0-93-0411. In theThe Memorandum,[10] dated (GIO) J.
Celrin M. Macavinta of the OMB Task Force on Public Works and Highways, the allegations
constituting the administrative charge are quoted as follows:contained the
following findings:
xXxx xxx xxx
The report of the survey team and the analysis of Engr.
David clearly established a clear case of overpayment. The
same also show conspiracy between and among the contractors and the concerned
government engineers who allowed the overpayment by issuing certifications
indicating that the contractors had completed the project 100%, when in truth
and in fact, the contractors had barely accomplished anything.
Without the said false certifications, no payments could
have been made to the conniving contractors.
These falsified documents are:
Xxxx xxx xxx
1. The
Statement of Work Accomplished showing that the project was 100% accomplished
as of
a. MARITA C. BERNALDO – Project Engineer;
b. CELESTINO R.
CONTRERAS – Chief, Construction Division;
c. LEONARDO J. CRUZ
– Contractor;
d. ADOLFO M.
FLORES – District Engineer;
e. REGULO V.
FERNANDEZ – Assistant Regional Director;
f. JOSE C.
PENDOZA – Regional Director.
2. The
Certificate of Final Inspection.
This document certifies that the project was inspected on
a.
MARITA C.
BERNALDO – Project Engineer;
b.
ANGELITO TWANO – Chief, Maintenance Division;
c.
AUGUSTO MENDOZA – Chief, Planning & Design
Division;
d.
ANDRELITO TAGORDA – Chief, Materials &
Quality Control Division;
e.
CELESTINO CONTRERAS – Chief, Construction
Division; and
f.
ADOLFO FLORES – District Engineer.
xXxx xxx xxx
Based on the survey, the difference between the actual work
accomplished and the total collections of the contractors in the three projects
are itemized and computed as follows:
xXxx xxx xxx
|
Amount
actually Accomplished |
Amount
Collected by
the Contractor |
Difference
(damage to the government) |
|
21%
or P
733,320 |
93.58%
or P
3,267,755.61 |
72.58%
or P
2,534,435.61 |
Xxxx xxx xxx
(emphasis
supplied)
Adolfo M. Flores, Andrelito P. Tagorda,
Angelito M. Twaño, Arsenio R. Flores, Augusto A. Mendoza, and Celestino
R. Contreras filed their respective counter-affidavits while petitioner
Bernaldo filed a motion to dismiss. Thereafter,
the parties presented their evidence.
The
complainant proffered DPWH submitted the
report of the Ssurvey tTeam
and the letter-report of Engr. David (Exhibits A and submarkings). Engr. Rogelio A. Hernandez[11]
and Engr. Eustacio Y. Cano[12]
of the survey team testified for the complainant. On the other hand, the respondent DPWH
Region III Eengineers presented the Counter-Affidavits[13]
of Angelito M. Twaño, Andrelito P. Tagorda, Augusto A. Mendoza, and Adolfo M.
Flores (Exhibits 1 to 5 and submarkings); a Letter-Receipt[14]
dated November 9, 1989 of Aurora G. Banaag (Exhibit 6); a Status Report[15] dated August 15, 1988 for the Almacen River II Project (Exhibit 7); an Affidavit[16]
dated December 20, 1987 of Leonardo R. Cruz, Sr. (Exhibit 8); a Status Report[17] dated August 15, 1988 for the Calaguiman
River Project (Exhibit 9); and the 1988
Tropical Cyclone Summary[18]
(Exhibit 10). Angelito M. Twaño, Andrelito
P. Tagorda, Augusto A. Mendoza, and Adolfo M. Flores testified for the respondentss.engineers.
The
case was submitted for decision after the reception of evidence of the
parties. The AAB proposed recommended the
dismissal of the complaint against the respondent
enRegion III Engineers, including
petitioner Bernaldo, for insufficiency of evidence. However, in an Order dated 26, 2000of
Ombudsman Aniano A. Desierto,
disapproved the recommendation of the AAB was disapproved aand,
instead, found the DPWH Region III
Eengineers
were held administratively liable for ““conduct
grossly prejudicial to the best interest of the service.”.
The
Ombudsman rejected the defenses of the respondents engineers
that:
(a) the
strong magnitude of waves possibly caused the continuous sedimentation
of the Calaguiman River, Almacen River I and Almacen River II dredging sites during the months
after followingbetween
the projects’ completion and prior to the Survey
Team’s inspection; and (b) its completion
and that the letter-report of Engr. David merely speculated that there
were two (2) cranes used on these projects. In the said Order, The It Ombudsman was also pointed
out that there were no serious efforts done to determine the extent of work of
the contractors as revealed by the testimonies of Twaño, Tagorda, and Mendoza
thatsince
the dredging sites were only visually inspected by respondent engineers;
that there were no surveying instruments used to measure the exact quantity of
spoils excavated from the rivers; and that the actual volume of dredged
materials were based on “wild guess”. tThe
Ombudsman collectively blamed the respondents
engineers for not ascertaining “by simple arithmetical computation
the maximum volume of work that can be accomplished within a given period of
time and given the number of dredging equipments used” by which they could haveto
discovered
that the contractors bloated the volume of excavated materials.
Thus, the respondent DPWH Region III Engineers, including
petitioner Bernaldo, were ordered suspended
for a period of nine (9) months without pay and other benefits.
In
an Order dated engineers
stressing their responsibility and the participation of petitioner Bernaldo in
the
purported bloating of the completion of the projects. To quote from
the said Order in this manner:
Xxxx xxx xxx
Substantial evidence exists in the premises to hold
respondents ARSENIO FLORES, CELESTINO CONTRERAS, ENGELITO TWANO, ANDRELITO
TAGORDA, and MARITA BERNALDO administratively liable for conduct prejudicial to
the best interest of the service.
Substantial evidence is only
“that amount of relevant evidence which a reasonable mind might accept as
adequate to support a conclusion” (Section 5, Rule 133, 1997 Revised Rules of
Courtxxx xxx
xxx).
Per
evaluation and computation of the capability of the equipments used made by
DPWH Senior Civil Engr. Stephen David, it was impossible for the contractors to
have accomplished the volume of works reported to have been accomplished. Far from being speculative, Engr. David’s reports
is borne out not only by
the Programs of Works (which reflect that two (2) hydraulic cranes were used
for the dredging of Almacen River while one (1) dredger and one (1) hydraulic
crane were used for the dredging of Calaguiman River) but also by the testimony
of respondent Adolfo Flores during the formal hearing held on 16 March 1995
that a total of four (4) cranes were used for the Almacen River Projects I
& II while one (1) dredger and one (1) hydraulic crane were used for the
Calaguiman River Project (TSN of the 16 March 1995, pp. 61 and 67).
The findings of Engr. David may still be given weight
notwithstanding the fact that he was not presented as a witness. In administrative proceedings, technical
rules of procedure and evidence are not strictly applied (Concerned Officials
of the MWSS v. Vasquez, 240 SCRA 502).
Respondents Arsenio Flores, Twano
and Tagorda (Materials Testing Engineer II, Maintenance Division Chief, and
Materials & Quality Control Division Chief, respectively) cannot validly claim
that they signed the SWAs and Certificates of Final Inspection routinely. Said respondents were members of the
Inspectorate Team for the three (3) dredging projects. During the 16 March 1995 hearing, respondent
Twano testified that “xxx it has been a ruling or as (sic) a policy of our
office, that no payment will be made to any contract without an Inspectorate
Team xxx to inspect the projects xxx” (TSN of the 16 March 1995 hearing, p.
6). Likewise, in the same hearing
respondent Tagorda testified that “xxx each member xxx of that Inspection Team
were notified / requested to undertake such inspection because this is a
requirement for any billing” (TSN of the 16 March 1995 hearing, p. 18). The inspection was clearly not ministerial
and the signatures of respondents Arsenio Flores, Twano, and Tagorda in the
Statement of Work Accomplished and Certificate of Final Inspection cannot be
considered as superfluous. The
inspection and issuance of corresponding certification were replete with
serious consequences for the government.
The respective testimonies of respondents Twano, Tagorda, and Mendoza
during the 16 March 1995 hearing show that respondents collectively did not
exert serious efforts in this regard.
Respondent Twano testified that they saw the spoils on the jobsite but
they did not measure what had been done because when they went there, they did
not bring ant surveying instruments (TSN of
the 16 March 1995 hearing, p. 7). For
his part, respondent Tagorda testified that they could only make a “wild guess”
as to the exact quantity of dredged materials, that they only made a “visual
inspection” of the projects, and that they did not undertake a detailed measurement
using sophisticated equipment (TSN of the March 16 1995 hearing, pp.
19-21). Similarly, respondent Mendoza
testified that they just made a “wild guess” as to actual volume of excavated
materials (TSN of the 16 March 1995 hearing, pp. 30-31).
Assuming without conceding, as
respondent Tagorda contends, that the Materials & Quality Control Division
does not have the necessary equipments to fully undertake the inspection,
respondents could have ascertained by simple arithmetical computation the
maximum volume of work that can be accomplished within a given period of time
and given the number of dredging equipments used. Respondents could have thereby ascertained as
bloated the claimed accomplishment.
The disbursements on the dredging
projects cannot be presumed regular even in the absence of showing that they
were either suspended or disallowed by the COA.
It appears from the 5 May 1993 Memorandum of Graft Investigation Officer
(GIO) J. Celrin Macavinta to then Ombudsman Conrado M. Vasquez that “then DPWH
Undersecretary JOSE F. MABANTA even issued a Memorandum dated 31 January 1989
requesting the Assistant Secretary for Legal Services, DPWH, to undertake
necessary legal steps for the recovery of overpayments made to the
contractors”.xxx
xxx xxx
The
participation
of respondent Bernaldo in the bloating of accomplishment reports for Almacen
River Project II and the resultant overpayment to its contractor cannot be
overemphasized. She was a signatory to
the SWA and the Certificate of Final Inspection. As correctly argued by her co-respondents
(although their argument does not excuse their own conduct), respondent
Bernaldo had the primary and direct responsibility for the implementation of
Almacen River Project II as its Resident / Project Engineer.
xXxx xxx xxx
The
DPWH Region III Eengineers
individually elevated for review before the CA the findings of the Office of
the Ombudsman. The appeal of Arsenio R.
Flores was docketed as CA-G.R. SP No. 65606; the joint appeal of Angelito M.
Twaño and Andrelito P. Tagorda was docketed as CA-G.R. SP No. 65544; and the
appeal of petitioner Bernaldo was docketed as CA-G.R. SP No. 65440. In a Decision
dated n the case of nvolving Arsenio
R. Flores, the petition was granted and the assailed orders of the Office of
the Ombudsman were annulled and set aside.
The same conclusion was reached by the CA in the case of Angelito M.
Twaño and Andrelito P. Tagorda in a Decision
dated are were insufficient
to hold the engineers administratively liable.
However, this ruling of the CA was not heldruled
differently in the case of petitioner Bernaldo. In its Decision
dated
Petitioner In the petition, Bernaldo
claims that the letter-report of Engr. David is hearsay and self-serving since the
complainant DPWH failed to present Engr. David to testify
on his purported evaluation on the Almacen River II Pproject. She further argues, nonetheless, that
the findings of Engr. David were not founded on actual facts but solely on his
imagined perceptions of what could have happened in the implementation and
accomplishment of the projects. She points
out the rulings of the CA in the appeals of Arsenio R. Flores, Angelito M.
Twaño and Andrelito P. Tagorda that the conclusions made by Engr. David in his
letter-report were based on assumptions and perceptions. and She likewise
contends that the change in the condition from at the
time the Almacen River II pProject was reported as
completed as compared to the state of the project at the time
it was inspected by the Survey Team months thereafter reported
completed deserves serious consideration in determining whether
the alleged completion of the said project was in fact bloated. Petitioner Bernaldo further finally contendsasserts
that these findings dwell on the same factual issues raised before the CA which
already attained finality and, therefore, should be taken into account in the
adjudication of her administrative charge.
The
public respondents, through the
Solicitor General, argue that the instant petition raises
questions of fact which is beyond the scope of Rule 45 of the Rules of Court;
that the rulings of the CA in the appeal of Arsenio R. Flores and joint appeal
of Angelito M. Twaño and Andrelito P. Tagorda have no bearing upon this case;
that there is substantial evidence proving the administrative guilt of
petitioner Bernaldo for conduct prejudicial to the best interest of the
service; and that the technical rules of procedure are not strictly adhered in
administrative proceedings so the admission of the letter-report of Engr. David
against petitioner Bernaldo does not amount to her denial of administrative due
process.
We
find merit in the petition.
Anent the
preliminary matter regarding the mode of appeal to this Court, the
principle that it is well-settled
that Rule 45 of the Rules
of Court which provides that only questions of law shall be raised
in an appeal by certiorarii under
Rule 45 of the Rules of Court before this Court
recognizesadmits of certain exceptions,[19],
namely: (1) when the findings are
grounded entirely on speculations, surmises, or conjectures; (2) when the
inference made is manifestly mistaken, absurd, or impossible; (3) when there is
a grave abuse of discretion; (4) when the judgment is based on misappreciation
of facts; (5) when the findings of fact are conflicting; (6) when in making its
findings, the same are contrary to the admissions of both appellant and
appellee; (7) when the findings are contrary to those of the trial court; (8) when
the findings are conclusions without citation of specific evidence on which
they are based; (9) when the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the respondent; and (10)
when the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record.
To
be sure, when the lower court or theadministrative tribunal lower
court/tribunal fails to take into account
certain relevant facts which, if properly considered, would justify a different
conclusion is likewise an
accepted exception to the prescription under Rule 45.[20]
In
the petition at bar, The first exception
is evident in this case. The
the Ombudsman’s factual finding that
the percentage of completion of the
Almacen River II Pproject
has been bloated in the Statement of Work Accomplished and the Certificate of Final Inspection and
Certificate of Final Acceptance signed by
petitioner is not supported by substantial evidence but, rather, grounded
entirely on unreliable,
speculative evidence which
may be susceptible to a different interpretation.
The
Ombudsman’s finding of administrative
liability of respondent DPWH Region III Engineers waswere
based mainly on two documents: (a) the Field Survey
and Investigation Report
dated speculations,
surmises, or conjectures.
However,
it should be noted that Tthe
survey Tteam
that the conditions of the projects did not meet
the “requirements and specifications called for the efficient and profitable
use of the streams” does notdoes
not show state that
that the cause of such findingunsatisfactory
condition of the dredging projects is was
due to the failure of the contractors
to finish the jobcomplete them. It is more apparent from the overall observation
of the Ssurvey Tteam
that the continuous sedimentation of the dredging sites due to “strong
magnitude of stream waves and tidal effects of the delta areas” may
have caused the dubious
completioncaused the destruction of works involved
in the projects of the projects.,
thus: To quote from said report:
The
following are the dredging and improvement projects in the area:
1.
Channel Improvement of Tortugas, River, Balanga,
2.
Channel Improvement of
3.
Channel Improvement of
4.
Channel Improvement of
5.
Channel
Improvement of Almacen River II, Hermosa,
6.
Channel Improvement of
7.
Channel Improvement of San Vicente River, Orion,
8.
Channel Improvement of
9.
Channel Improvement of
FINDINGS:
1.0.The
adjacent areas within the deltas where the rivers are located are mostly
fishponds and residential houses.
2.2. Some reclaimed areas near the vicinities of the
rivers were filled with dredge materials and spoils taken from the excavated
channel beds.
3.3. Most of the materials excavated from the rivers
were composed of washed sand, sandy clay, sediment discharge, silt and garbage
materials.
4.4. No permanent shore
protections were constructed except in
5.5. Temporary shore
protections made up of bamboo poles and sawali with very limited lengths were
installed along some portions of the banks of Tortugas, Almacen I & II, Wawa and Abucay rivers utilizing the project
savings for the bunk houses and risk insurances. These
protective works were damaged to a great extent due to strong magnitude of
stream waves and tidal effects of the delta areas.
6.1.Some
contractors did not comply with the specified equipment to be used. In Almacen River Phase II, clampshell was
used instead of dredge. The same was
done on certain portion of Abucay River.
7.1.The
narrow stream in the area, made the dredges’ movements limited. Instead, the other types of equipment were
utilized (clampshell on bridge) to serve the purpose in the dredging and
improvement works.
xxx xxx
xxx
8.8. That almost all of the stream / river beds of the subject
channels were silted, eroded, and filled with garbage materials.
9.9. Based on the result of our survey /
investigation, it was observed that the present conditions of all the channels
concerned do not meet the requirements and specifications called for the
efficient and profitable use of the streams.
COMMENTS AND RECOMMENDATIONS:
1.
The
Programs of Work were prepared with insufficient data on hand.
2.
The
construction of temporary stream and shore protections did not effectively
serve the purpose. These works were affected by strong
currents and sea waves, causing destruction.
3.
That
river protections and river training works be undertaken in all the subject
rivers before any dredging / deepening works be implemented. This must be included in the program of work
and cost estimates.
4.
That
feasibility studies be made before any detailed engineering and construction
and / or dredging works are done, including among others the hydrologic and
geologic aspects of the area under consideration.
xxx xxx
xxx
5.4.That experienced
resident and staff engineers be directly involved / assigned to supervise the
dredging on improvement projects.
6.4.That bi-monthly
progress report of on-going projects be submitted to the DPWH Undersecretary’s
Office for proper monitoring until such time that satisfactory completion of
the works called for is attained.
7.4.That a continuous
maintenance program for the subject rivers to be included in the allocation for
the year round maintenance program of the DPWH Regional Office.
8.8. That some measures be initiated in the
removal of accumulated materials which are the results
of the continuous sedimentation, soil erosion and siltation in the area.
9.9. That hydrological analysis be undertaken before
any channel design is made. These will
determine the flood frequencies for the required return periods of flood
designs necessary for channel improvements and dredging works.
10.10. That additional hydrolographic and topographic
surveys of the subject streams and their estuaries extending at least one
kilometric seawards be undertaken preparatory to the design and estimates of
the channels to be improved.
xxx xxx
xxx
Also attached is a chart showing the comparative
volume of works. Included in this report
are the field notes with the data superimposed on the printed copies of plans
and cross-sections of each project.
The
signatories to the above-quoted report included Engr.
Rogelio A. Hernandez (“Engr. Hernandez”)
and Engr. Eustacio Y. Cano, (“Engr. Cano"), who
were both presented as witnesses by complainant Engr.. Engr. Hernandez
and Engr. Cano of the Ssurvey Tteam
both explained testified that
the continuous sedimentation, soil erosion, or siltation of the rivers could have
wiped out
the traces of the dredging projects. The relevant
portions of their testimonies are reproduced below:
Engr. Hernandez
testifiedFrom
the testimony
of Engr. Hernandez:[22]:
Q- And, how come
there was an observation of “strong magnitude of stream waves.” What do you mean by this in layman’s term,
Mr. Witness, “and tidal effects of the delta areas”?
A- When we went on
that particular projects (sic), your Honor, we were offered . . . and observed
that those protective works were already damaged to a great extent and we were
told that it was destroyed by strong river waves.
Q- So, you mean to say, Mr. Witness, considering
that the waves are very strong and the tidal effects are very substantial, can
we stipulate, Mr. Witness, that this has also affected the spoils that were
taken out of the river? Is there a
possibility, Mr. Witness? That’s why
when you went to that area, you saw only these much spoils that you have in
these projects because of the strong magnitude of stream waves and tidal
effects.
A- Yes.
Q- I think, this
is connected with - - In comments, and Recommendations No. 2, “the construction
of temporary streams and shore protections did not effectively serve the
purpose. These works were affected by
strong currents and sea waves, causing destruction.” So, when you say, “causing destruction”,
these currents are not just ordinary everyday currents but extra-ordinary,
causing destruction. Am I right, Mr.
Witness?
A- Yes.
Q- And in No.
8, Mr. Witness – “That some measures be initiated in the removal of accumulated
materials which are the results of continuous sedimentation, soil erosion and
siltation in the area.” So, Mr. Witness, am I right stating that
there are continuous sedimentation, continuous soil erosion, continuous
siltation in the area even after the implementation of the projects?
A- Yes, your Honor.
Q- So, that means to say,
if you go there, after a few months after the project had already been
completed, is it possible that you will see as if nothing has happened because
of the continuous sedimentation, continuous siltation, continuous erosion? So, we can now conclude that nothing
happened, only 1% of the project was accomplished? Is it possible?
A- There is a possibility.
Engr. Cano
corroborated Engr. Hernandez on this point as followsFrom the testimony
of Engr. Cano:[23]:
Q- So, what Mr.
Hernandez has surveyed during that time was only what he had seen after several
months the project was accomplished.
A- Thate
was very true.
Q- And that the
scenario of the project which was there when you conducted the survey is very
much dissimilar, is not the same as what the project was accomplished. Is that right?
A- In all cases,
definitely, it will not appear the same.
Xxxx xxx xxx
Q- So, there are also projects, Mr.
Witness, that there’s a possibility that it has been 100% accomplished but due
to the elements of nature, due to water, erosion, there’s a possibility
sometimes when you go there for . . . almost as if nothing had happened in the
project because there was no soil protection?
A- That is very true by nature and then by
gravity until erosion.
xXxx xxx xxx
Q- A project claimed to have been 100%
completed, upon your survey, was determined that it was only 1.13% done. Now, as a hydrologist, is it possible for
this figure to be correct, from 100% to 1.13%?
A- As far as the completion of the project on
the hydrological aspect, we can say that it is 100% but after sometime, due to
the effect of nature, the sediment, this will be possible to be offset.
Q- Is this
possible?
A- Yah, as far
as hydrology is concerned, by reason of sedimentation and sediment transport,
erosion and wave movement.
Q- After examining many projects, have you
come across another project which have (sic) the same result?
A- Yah.
Sometimes, even less than this.
Q- Sometimes, less than this? What do you mean by that?
A- None at all.
Q- You mean, the
project claimed to have been completed, wala na talaga? After how many . . . in this project, this is
A- Very much
possible.
Q- How
come? How could you explain?
A- Because I
undertook actual observation.
Q- Of the river
itself?
A- Yah, of the
movement of the sediments from the mountain upstream going to the downstream of
the river. That was my observation.
Q- How do you
describe the movement of the tide of the river?
A- Inasmuch as
the material contents of that river at that time, mostly gravel and white sand
and some other sediments, the movement was very much faster.
Xxxx xxx xxx
Q- You said that it is possible, even with the
volume of 60,656 cubic meters? 60,656.35,
it is the quantity programmed.
A- Yah, it will be possible because of, as I
have said, my observation that the material was mostly sand.
Q- For how long?
A- Even in a matter of month - -
Q- One month?
A- Yah, specially, if there are heavy
rains, like typhoons.
xXxx xxx xxx
Clearly
from the foregoing, the prosecution’s own
witnesses It is notconfirmed that the
disputed that the sSurvey Tteam
conducted itsthe
inspection only months after the questioned
completion of the projects. and after
Moreover, they testified that it was quite possible
that the projects were completed
but the the rainy season, thus, bolstering the fact that
the cause of the seeming deficiency of work they found during
their inspection was accomplished on the
projects wasdue to the
continuous sedimentation, soil erosion, or siltation of the rivers or
the destruction of works by
heavy rains or typhoons.
The
letter-report of Engr. David similarly lacks probative
value to prove does not prove that none of the
projectsthat the Almacen River II Project were was not fully completed as
of , specifically, with
respect to the Almacen River II project,
thus:
Sir:
In compliance to your directive to study / evaluate the pertinent
document regarding the Channel
Improvement of
1.0.Project: Channel
Improvement of Almacen River II in Hermosa, Bataan
Contractor: L.J. Cruz Construction
Contract Cost: P3,492,000.00
Start date: December 20, 1988
Expiry date: April 29, 1988
Scope of work: Excavation of 53,523.65 cu.m. by crane on barge
and 96,436 cu.m. by 16” dredge.xxx xxx
xxx
2. The first
partial collection was made on
3. After the
third collection dated
4. As of
5. Fourth
partial collection was made on
6. On
7. The project
was reported to be 100% accomplished as of Final Collection dated
xxx xxx
xxx
Respectfully
submitted:
(Sgd.)
STEPHEN
L. DAVID
Senior
Civil Engineer
It
is obvious from the language of the above--quoted
letter-report of Engr. David that that
the variables used to support the analysishis mathematical
computations of the amount of work completed by the
contractor were based on an assumption
that only two cranes were used for the
project. There is no evidence on record that only
two cranes were actually
used in the said project. The Ombudsman’s finding
that the Program
of Works corroborates
Engr. David’s assumption that only two cranes were used cannot
be upheld by this Court, considering that the undated Program of Works appears
to be a mere estimate of the
costs of the project as
approved by the DPWH. The Program of Works
does not preclude the possibility that more than two
cranes may have been in fact used
for the project. Thus,
Engr. David’s conclusion thatthat
the equipments utilized on the projects could
not possibly accomplish the such amount
of work as reported werase hypothetically based
and purely speculative. The
number of cranes on barge used and the capacity of each lacked factual basis. The engineers asserted that L. J. Cruz
Construction had actually four (4) cranes on barge for the Almacen River II project
contrary to the mere speculation of Engr. David that there were only two
(2). Neither the capacities of these
cranes on barge (19.5 cubic meters / hour) were matters of fact. More notably,In
addition, Engr. David clearly did not take into account the cause and effect
of the continuous sedimentation, soil erosion or siltation of the river
during thes months after the reported
completion of the project and prior to
the Ssurvey Tteam’s
conducted its inspection was not given any consideration
by Engr. David in his evaluation of the said projectinspection. Finally, this Court finds that the said
letter-report is of suspect authenticity and
credibility, considering
that it was
not under oath nor did Engr. David,
who was not presented as a witness, ever
attest to its contents.
Furthermore,
the fact that petitioner Bernaldo, as
Project Engineer, had
over-all supervision and responsibility over the Almacen River II Project
does not justify a different treatment of her case from
those of her co-respondents. Here, the complainant/prosecution in the
administrative case failed to discharge
its burden to prove the
fact of “bloating” or overstatment
of the percentage of completion of the said project
which purportedly led to overpayments to the contractor.
Thus, there is no factual basis to find
petitioner guilty of “conduct
grossly prejudicial to the best interest of the service.”
It
is well-settled that in the hierarchy of
evidentiary values, proof beyond reasonable doubt is at the highest level,
followed by clear and convincing evidence, preponderance of evidence and
substantial evidence, in that order.[24] This Court has
consistently
held that substantial evidence is all that is needed to support an
administrative finding of fact.[25] This is not to say,
however, that administrative tribunals may rely on flimsy, unreliable,
conjectural evidence. Substantial
evidence is such
relevant evidence that a reasonable mind might accept as adequate to support a
conclusion.[26] Where
the decision of the Ombudsman is not supported by substantial
evidence, but based on speculations,
surmises and conjectures, as
in the present case, this Court finds
sufficient reason to overturn the same.
The
conclusion of the Office of the Ombudsman that no serious effort was done by
the engineers to determine the extent of work accomplished on the projects is also
bereft of supporting evidence. The
testimonies of Twaño, Tagorda, and Mendoza pertain to their respective
participations to the projects which differ to the official duties of
petitioner Bernaldo. No other evidence
has been presented against her showing that she miserably failed to discharge
her official duties to warrant her suspension for “conduct grossly prejudicial
to the best interest of the service”.
WHEREFORE, in view of
the foregoing, the instant petition is hereby GRANTED. The Resolution dated November 13, 2002 and Decision dated January 31, 2002 of the CA
in CA-G.R. SP No. 65440 as well as the Order[s]
dated June 7, 2001 and December 26, 2000 of the Office of the Ombudsman in
OMB-ADM-0-93-0411 are hereby REVERSED
and SET ASIDE. No Ccosts.
SO
ORDERED.
TERESITA J.
LEONARDO-DE CASTRO
Associate Justice
WE CONCUR:
REYNATO S.
PUNO
Chief Justice
Chairperson
|
ANTONIO T.
CARPIO Associate Justice |
RENATO C.
CORONA Associate Justice |
ADOLFO S.
AZCUNA
Associate Justice
CERTIFICATION
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’s Division.
REYNATO S.
PUNO
Chief Justice
TLC/jeremyJeremy/mclds
[1] Rollo, pp. 46-49.
[2] Penned by Associate
Justice Portia Aliño-Hormachuelos with Associate Justices Eriberto U. Rosario,
Jr. and Mariano C. ,; Iid.
at 38-47.
[3]
[4]
[5]
[6]
[7]
[8] Records, Folder 2, pp. 22-24
[9] Records, Folder 2, pp.
110-111
[10]
[11]
[12]
[13] Records, Folder 3.,
[14] Records, Folder 5, p.
56.
[15]
[16] Records, Folder 3, p.
51.
[17]
[18] Id., pp. 59-62.
[19] Uy and Yusay
v. Villanueva and NLRC, (G.R. No.
157851, June 29, 2007526 SCRA 73.)
[20] Orquiola
v. Court of Appeals, 386 SCRA 301G.R. No. 141463, August 6, 2002.
[21] Supora
note
8.
[22]
[23] ; and, 20-22.
[24] Energy Regulatory
Board v. Court of Appeals, G.R. No.
113079, April 20, 2001357 SCRA 30.
[25]
[26] Velazquez
v. Hernandez, 437 SCRA 357G.R. 150732,
August 31, 2004.