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RACHEL BEATRIZ RUIVIVAR,
Petitioner, - versus
- OFFICE OF THE
OMBUDSMAN and DR. CONNIE
BERNARDO, Respondents. |
G.R. No. 165012
Present:
QUISUMBING, J., Chairperson,
CARPIO-MORALES,
TINGA,
VELASCO, JR., andBrion, jj. Promulgated: September 16, 2008 |
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D
E C I S I O N
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BRION, J.:
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Before us is the petition for review on certiorari under
Rule 45 of the Rules of Court commenced by Rachel Beatriz Ruivivar (petitioner). It seeks to set aside:
(a)
the
Decision of the Court of Appeals (CA)[1] dated May 26, 2004[2] dismissing the petition for certiorari filed by the petitioner
and affirming the Decision dated November 4, 2002[3] (November 4, 2002
Decision) and the Order dated February 12, 2003[4] (February 12, 2003
Order) of the Office of the Ombudsman (Ombudsman);
the Ombudsman's Decision and Order found the petitioner administratively liable
for discourtesy in the course of official duties as Chairperson of the Land
Transportation Office (LTO)
Accreditation Committee on Drug Testing, and imposed on her the penalty of
reprimand; and
(b)
the
CA Resolution dated
THE
ANTECEDENTS
On
The Ombudsman furnished the petitioner a copy of the
Complaint-Affidavit and required her to file her counter-affidavit. In her
Counter-Affidavit, the petitioner denied the private respondent's allegations
and claimed that she merely told the private respondent to bring her request to
the LTO Assistant Secretary who has the authority to act on the matter, not to
the DOTC.[8] The petitioner also
claimed that the private respondent also asked her to lift the moratorium and
pressured her to favorably act on the private respondents application for
accreditation. To prove these claims, petitioner presented the affidavits of
her two witnesses.[9]
The Ombudsman called for a preliminary conference that the
parties attended. The petitioner
manifested her intent to submit the case for resolution. The Ombudsman then
directed the parties to submit their respective memoranda. Only the petitioner
filed a Memorandum where she stressed that the complaint is not properly
substantiated for lack of supporting affidavits and other evidence.[10]
The Office of the Ombudsman
The Ombudsman rendered the
The Ombudsman ruled that the petitioner's verbal assault on
the private respondent was sufficiently established by the affidavits of the
private respondents witnesses who had not been shown by evidence to have any
motive to falsely testify against petitioner. In contrast, the petitioners
witnesses, as her officemates, were likely to testify in her favor. Given that the incident happened at the LTO
and that the petitioner had authority to act on the private respondents
application for accreditation, the Ombudsman also found that the petitioner's
ascendancy over the private respondent made the petitioners verbal assault
more likely. The Ombudsman concluded
that such verbal assault might have been caused by the private respondents
decision to air the LTO moratorium issue (on accreditation for drug testing
centers) before the DOTC; this decision also negated the petitioners defense
that the case was filed to exert pressure on her to act favorably on private respondents
application for accreditation.
The petitioner filed a Motion for Reconsideration arguing
that she was deprived of due process
because she was not furnished copies of the affidavits of the private
respondents witnesses.[11] In the same motion, petitioner questioned the
Ombudsmans disregard of the evidence she had presented, and disagreed with the
Ombudsmans statement that she has ascendancy over the private respondent.
The Ombudsman responded to the petitioners motion for
reconsideration by ordering that the petitioner be furnished with copies of the
affidavits of the private respondents witnesses. [12]
The Ombudsmans order also contained the directive
to file, within ten (10) days from receipt of this Order, such pleading which
she may deem fit under the circumstances.
Records show that the petitioner received copies of the
private respondents witnesses affidavits but she did not choose to controvert
these affidavits or to file a supplement to her motion for reconsideration. She
simply maintained in her Manifestation that her receipt of the affidavits did
not alter the fact the she was deprived of due process nor cure the
irregularity in the November 4, 2002 Decision.
Under these developments, the Ombudsman ruled that the
petitioner was not denied due process.
It also maintained the findings and conclusions in its
The
Court of Appeals
The petitioners chosen remedy, in light of the Ombudsman
ruling, was to file a petition for certiorari
(docketed as CA-GR SP No. 77029) with the CA.
In its Decision dated
as held in Fabian v. Desierto, a party aggrieved by
the decision of the Office of the
Ombudsman may appeal to this Court by way of a petition for review under Rule
43. As succinctly held by the Supreme Court:
As a consequence of our
ratiocination that Section 27 of Republic Act No. 6770 should be struck down as
unconstitutional, and in line with regulatory philosophy adopted in appeals
from quasi-judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals from decision of the Office of the
Ombudsman in administrative disciplinary cases should be taken to the CA under
the provisions of Rule 43.
Even assuming, argumentatis, that public respondent
committed grave abuse of discretion, such fact is not sufficient to warrant the
issuance of the extraordinary writ of certiorari, as was held in Union of Nestle Workers Cagayan de Oro
Factory vs. Nestle Philippines, Inc.:
x x x .For certiorari
to prosper, it is not enough that the trial court committed grave abuse of
discretion amounting to lack or excess of jurisdiction, as alleged by
petitioners. The requirement that there is no appeal nor any plain, speedy and
adequate remedy in the ordinary course of law must likewise be satisfied. x x
x
Petitioner was given the
opportunity by public respondent to rebut the affidavits submitted by private
respondent, in its Order dated
x x x
Moreover, instead of
filing a petition for review under Rule 43, she filed the present petition for
certiorari under Rule 65. In view of our above disquisition, We find no further
reason to discuss the merits of the case. Petitioner having resorted to the
wrong remedy, the dismissal of the present petition is in order.[15]
After the CAs negative ruling on the motion for
reconsideration, the petitioner filed the present petition for review on certiorari with this Court, raising the
following issues:
THE ISSUES
I.
WHETHER OR NOT A
PETITION FOR CERTIORARI UNDER RULE 65 IS THE PROPER AND ONLY AVAILABLE
REMEDY WHEN THE PENALTY IMPOSED IN AN ADMINISTRATIVE COMPLAINT WITH THE OFFICE
OF THE OMBUDSMAN IS CONSIDERED FINAL AND UNAPPEALABLE.
II.
WHETHER OR NOT PETITIONER
WAS DENIED OF (sic) THE
CONSTITUTIONAL GUARANTEE TO DUE PROCESS WHEN SHE WAS DEPRIVED OF HER RIGHT TO
CONFRONT THE EVIDENCE SUBMITTED AGAINST HER BEFORE THE DECISION OF THE OFFICE
OF THE OMBUDSMAN WAS RENDERED.
On the first issue, the petitioner argued that the ruling in
Fabian v. Desierto[16]
can only be applied when the decision of the Ombudsman is appealable. The
ruling in Fabian is not applicable to
the Ombudsman rulings under the express provisions of Section 27 of Republic
Act (R.A.) No. 6770[17]
and Section 7, Rule III of Administrative Order (A.O.) No. 7[18]
since the penalty of reprimand imposed is final and unappealable. The
appropriate remedy, under the circumstances, is not the appellate remedy
provided by Rule 43 of the Rules of Court but a petition for certiorari under Rule 65 of these Rules.
On the second issue, the petitioner maintained that she was
denied due process because no competent evidence was presented to prove the
charge against her. While she was belatedly furnished copies of the affidavits
of the private respondents witnesses, this was done after the Ombudsman had rendered
a decision. She posited that her belated
receipt of the affidavits and the subsequent proceedings before the Ombudsman
did not cure the irregularity of the
The Ombudsmans Comment,[19]
filed through the Office of the Solicitor General, maintained that the proper
remedy to assail the November 4, 2002 Decision and February 12, 2003 Order was
to file a petition for review under Rule 43 as laid down in Fabian,[20]
and not the petition for certiorari
that the petitioner filed. The Ombudsman
argues further that since no petition for review was filed within the
prescribed period (as provided under Section 4, Rule 43),[21]
the November 4, 2002 Decision and February 12, 2003 Order had become final and
executory. The Ombudsman maintained, too, that its decision holding the
petitioner administratively liable is supported by substantial evidence; the
petitioners denial of the verbal assault cannot prevail over the submitted
positive testimony. The Ombudsman also asserted that the petitioner was not
denied due process as she was given the opportunity to be heard on the
affidavits that were belatedly furnished her when she was directed to file any pleading as she may consider fit.
The private respondent shared the positions of the Ombudsman
in her Comment.[22] Both the Office of the Solicitor General and
the private respondent also asserted the doctrine that factual findings of
administrative agencies should be given great respect when supported by
substantial evidence.
We initially denied the petition in our Resolution dated
THE
COURTS RULING
We deny the Petition.
While we find
that the Court of Appeals erred in its ruling on the appropriate mode of review
the petitioner should take, we also find that the appellate court effectively
ruled on the due process issue raised the failure to provide the petitioner
the affidavits of witnesses - although its ruling was not directly expressed in
due process terms. The CAs finding that
the petitioner failed to exhaust administrative remedies (when she failed to
act on the affidavits that were belatedly furnished her) effectively embodied a
ruling on the due process issue at the same time that it determined the
propriety of the petition for certiorari that
the CA assumed arguendo to be the
correct remedy.
Under this situation, the error in the appellate courts
ruling relates to a technical matter the mode of review that the petitioner
correctly took but which the CA thought was erroneous. Despite this erroneous conclusion, the CA
nevertheless fully reviewed the petition and, assuming it arguendo to be the correct mode of review, also ruled on its
merits. Thus, while it erred on the mode
of review aspect, it correctly ruled on the exhaustion of administrative remedy
issue and on the due process issue that the exhaustion issue implicitly
carried. In these lights, the present
petition essentially has no merit so that its denial is in order.
The Mode of Review Issue
The case of Fabian v.
Desierto[24] arose from the doubt created in the application of Section
27 of R.A. No. 6770 (The Ombudsmans Act) and Section 7, Rule III of A.O. No. 7
(Rules of Procedure of the Office of the Ombudsman) on the availability of
appeal before the Supreme Court to assail a decision or order of the Ombudsman
in administrative cases. In Fabian, we invalidated Section 27 of
R.A. No. 6770 (and Section 7, Rule III of A.O. No. 7 and the other rules
implementing the Act) insofar as it provided for appeal by certiorari
under Rule 45 from the decisions or orders of the Ombudsman in administrative
cases. We held that Section 27 of R.A.
No. 6770 had the effect, not only of increasing the appellate jurisdiction of
this Court without its advice and concurrence in violation of Section 30,
Article VI of the Constitution; it was also inconsistent with Section 1, Rule
45 of the Rules of Court which provides that a petition for review on certiorari shall apply only to a review
of judgments or final orders of the Court of Appeals, the Sandiganbayan, the
Court of Tax Appeals, the Regional Trial Court, or other courts authorized by law.[25] We pointedly said:
As a consequence of our ratiocination that Section
27 of Republic Act No. 6770 should be struck down as unconstitutional, and in
line with the regulatory philosophy adopted in appeals from quasi-judicial
agencies in the 1997 Revised Rules of Civil Procedure, appeals from decisions
of the Office of the Ombudsman in administrative disciplinary cases should be
taken to the CA under the provisions of Rule 43.[26]
We restated this doctrine in
several cases[27]
and further elaborated on the recourses from Ombudsman actions in other cases
we have decided since then. In Lapid v. CA, we explained that an appeal
under Rule 43 to the CA only applies to administrative cases where the right to
appeal is granted under Section 27 of R.A. No. 6770.[28] In Lopez
v. CA[29]
and Herrera v. Bohol,[30]
we recognized that no appeal is allowed in administrative cases where the penalty of public censure, reprimand,
suspension of not more than one month, or a fine equivalent to one month
salary, is imposed. We pointed out that
decisions of administrative agencies that are declared by law to be final and
unappealable are still subject to judicial review if they fail the test of
arbitrariness or upon proof of gross abuse of discretion;[31] the
complainants legal recourse is to file a petition for certiorari under
Rule 65 of the Rules of Court, applied
as rules suppletory to the Rules of Procedure of the Office of the Ombudsman.[32] The use of this recourse should take into
account the last paragraph of Section 4, Rule 65 of the Rules of
Court
i.e., the petition shall be filed in and be cognizable only by the
CA if it involves the acts or omissions of a quasi-judicial agency, unless
otherwise provided by law or by the Rules.[33]
In
the present case, the Ombudsmans decision and order imposing the penalty of
reprimand on the petitioner are final and unappealable. Thus, the petitioner availed of the correct
remedy when she filed a petition for certiorari
before the CA to question the Ombudsmans decision to reprimand her.
The Due Process Issue
The
CA Decision dismissed the petition for certiorari
on the ground that the petitioner failed to exhaust all the administrative
remedies available to her before the Ombudsman. This ruling is legally correct
as exhaustion of administrative remedies is a requisite for the filing of a
petition for certiorari.[34] Other than this legal significance, however, the ruling necessarily carries the direct
and immediate implication that the petitioner has been granted the opportunity
to be heard and has refused to avail of this opportunity; hence, she cannot
claim denial of due process. In the
words of the CA ruling itself: Petitioner
was given the opportunity by public respondent to rebut the affidavits
submitted by private respondent. . . and had a speedy and adequate
administrative remedy but she failed to avail thereof for reasons only known to
her.
For
a fuller appreciation of our above conclusion, we clarify that although they
are separate and distinct concepts, exhaustion of administrative remedies and
due process embody linked and related principles. The exhaustion principle applies when the ruling court or tribunal is not given
the opportunity to re-examine its findings and conclusions because of an available opportunity that a party
seeking recourse against the court or the tribunals ruling omitted to take.[35] Under the concept of due process, on the
other hand, a violation occurs when a court or tribunal rules against a party without giving him or her the opportunity
to be heard.[36] Thus, the exhaustion principle is based on
the perspective of the ruling court or tribunal, while due process is
considered from the point of view of the litigating party against whom a ruling
was made. The commonality they share is
in the same opportunity that underlies both. In the context of the present case, the
available opportunity to consider and appreciate the petitioners counter-statement
of facts was denied the Ombudsman; hence, the petitioner is barred from seeking
recourse at the CA because the ground she would invoke was not considered at
all at the Ombudsman level. At the same
time, the petitioner who had the same opportunity to rebut the
belatedly-furnished affidavits of the private respondents witnesses was not
denied and cannot now claim denial of due process because she did not take
advantage of the opportunity opened to her at the Ombudsman level.
The
records show that the petitioner duly filed a motion for reconsideration on due
process grounds (i.e., for the private respondents failure to furnish her
copies of the affidavits of witnesses) and on questions relating to the
appreciation of the evidence on record.[37] The
Ombudsman acted on this motion by issuing its Order of
Given
this opportunity to act on the belatedly-furnished affidavits, the petitioner
simply chose to file a Manifestation where she took the position that The
order of the Ombudsman dated 17 January 2003 supplying her with the affidavits
of the complainant does not cure the 04 November 2002 order, and on this basis
prayed that the Ombudsmans decision be reconsidered and the complaint
dismissed for lack of merit.[39]
For her
part, the private respondent filed a Comment/Opposition to Motion for
Reconsideration dated
In the
Undoubtedly,
the respondent herein has been furnished by this Office with copies of the
affidavits, which she claims she has not received. Furthermore, the respondent has been given
the opportunity to present her side relative thereto, however, she chose not to
submit countervailing evidence or argument.
The respondent, therefore (sic), cannot claim denial of due process for purposes of
assailing the Decision issued in the present case. On this score, the Supreme Court held in the
case of People v. Acot, 232 SCRA 406, that a party cannot feign denial of due process
where he had the opportunity to present his side. This becomes all the more important since, as
correctly pointed out by the complainant,
the decision issued in the present case is deemed final and unappealable
pursuant to Section 27 of Republic Act 6770, and Section 7, Rule III of
Administrative Order No. 07. Despite
the clear provisions of the law and the rules, the respondent herein was given
the opportunity not normally accorded, to present her side, but she opted not
to do so which is evidently fatal to her cause. [emphasis supplied].
Under these circumstances, we
cannot help but recognize that the petitioners cause is a lost one, not only
for her failure to exhaust her available administrative remedy, but also on due
process grounds. The law can no longer help one who had been given ample opportunity to
be heard but who did not take full advantage of the proffered chance.
WHEREFORE, premises considered, we
hereby DENY the petition. This denial has the
effect of confirming
the finality of the Decision of the Ombudsman dated
SO
ORDERED.
ARTURO
D. BRION
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice Chairperson |
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CONCHITA
CARPIO MORALES Associate Justice |
DANTE O. TINGA Associate Justice |
PRESBITERO J. VELASCO,
JR.
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.
LEONARDO
A. QUISUMBING
Associate Justice
Chairperson
CERTIFICATION
REYNATO S.
PUNO
Chief
Justice
[1] Docketed as CA-G.R. SP No. 77029
and assigned to the Fourteenth Division. The assailed CA issuances were penned
by Associate Justice Magdangal de Leon and concurred in by Associate Justice
[2] Rollo, pp. 36-44.
[3]
[4]
[5]
[6] See: paragraph 8 of the private
respondents Affidavit-Complaint; id., p. 48.
[7] They are Jubair Macaumbos, Merlie
Bando and Jesse Cosme whose affidavits were not immediately furnished the
petitioner; id., pp. 72-74.
[8] See: paragraph 2 of the
petitioners Counter Affidavit; id., p. 50.
[9] They are Corazon Javier and
Conchita Ramos; id., pp. 52-53.
[10] See: the petitioners Memorandum; id.,
pp. 54-56.
[11]
[12] See: Order dated
[13]
[14]
[15]
[16] G.R. No. 129742,
[17] SEC. 27. Effectivity and
Finality of Decisions. (1) All provisionary orders of the Office of the
Ombudsman are immediately effective and executory.
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.
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.
x x x
[18] Section 7. Finality and execution. Where 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 CA 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.
[19] Rollo, pp. 145-169.
[20] Supra note 16.
[21] Section 4. Period of appeal. The appeal shall be taken within fifteen (15)
days from notice of the award, judgment, final order or resolution, or from the
date of its last publication, if publication is required by law for its
effectivity, or of the denial of petitioners motion for new trial or
reconsideration duly filed in accordance with the governing law of the court or
agency a quo. x x x
[22] Rollo, pp. 206-210.
[23]
[24] Supra note 16.
[25] Section 1, Rule 45 of the Rules of Court, as
amended by A.M. 07-7-12-SC,
[26] Supra, note 16, p. 491.
[27] Tirol v. Sandiganbayan, G.R.
No. 135913, November 4, 1999, 317 SCRA 779, 785; Lapid v. CA, G.R. No.
142261, June 29, 2000, 334 SCRA 738, 750; Macalalag v. Ombudsman, G.R.
No. 147995, March 24, 2004, 424 SCRA 741, 745; Perez v. Ombudsman, G.R.
No. 131445, May 27, 2004, 429 SCRA 357, 361; Nava v. NBI, G.R. No.
134509, April 12, 2005, 455 SCRA 377, 389; Golangco v. Fung, G.R. No.
147640, October 16, 2006, 504 SCRA 321; Cabrera v. Lapid, G.R. No.
129098, December 6, 2006, 510 SCRA 55.
[28] Supra
note 27, p. 749.
[29] G.R. No. 144573,
[30] G.R. No. 155320,
[31] De
Jesus v. Office of the Ombudsman, G.R. No. 140240, October 18, 2007, 536
SCRA 547, 553, citing Republic v. Canastillo, G.R. No. 172729, June 8, 2007, 524 SCRA 546,
553.
[32] Barata
v. Abalos, Jr., G.R. No.
142888,
[33] Republic v. Canastillo, supra,
note 31, p. 553; Chan v. Marcelo,
G.R. No. 159298, July 6, 2007, 526 SCRA 627, 635.
[34] See: Section 1, Rule 65, Rules of Court.
[35] Bayantel, Inc. v.
Republic of the Philippines, G.R. No. 161140, January 31, 2007, 513 SCRA
562, 569.
[36] Laxina v. Ombudsman,
G.R. No. 153155,
[37] Rollo, pp.
68-69.
[38]
[39]
[40]