Republic of the Philippines
Supreme Court
Manila
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REPUBLIC OF THE |
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G.R. No. 160596 |
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represented by the Office of the |
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Ombudsman, |
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Present: |
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Petitioner, |
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YNARES-SANTIAGO,
J., |
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Chairperson, |
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AUSTRIA-MARTINEZ, |
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- versus - |
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TINGA,* |
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NACHURA, and |
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PERALTA, JJ. |
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IGNACIO BAJAO, |
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Promulgated: |
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Respondent.** |
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March 20, 2009 |
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D E C I S I O N
AUSTRIA-MARTINEZ,
J.:
Before
the Court is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court, assailing the May 22, 2003 Decision[1]
of the Court of Appeals (CA) which reversed the September 27, 2001 Decision[2]
of the Office of the Deputy Ombudsman for the Visayas (Ombudsman) in
OMB-VIS-ADM-2000-0854, and the October 13, 2003 CA Resolution[3]
which denied the Ombudsman’s Motion for Reconsideration.
The
relevant facts are as follows:
On
the basis of a Complaint[4]
filed by Candijay, Bohol Municipal Vice-Mayor Antonio L. Po and Sangguniang
Bayan Members Deodoro G. Hinacay, Gaspar G. Amora, Philbert H. Bertumen,
Leonardo A. Tutor, Peregrine Castrodes and Sergio G. Amora, Jr. (complainants)
against Municipal Treasurer Ignacio Bajao (respondent) for Failure to Make
Delivery of Public Funds punishable under Article 221 of the Revised Penal Code
and Section 3(F) of Republic Act (R.A.) No. 3019, and for Grave Abuse of
Authority in relation to respondent's withholding of complainants' uniform
allowance for 1999, the Office of the Ombudsman (Visayas) issued a decision,
the dispositive portion of which reads:
IN VIEW
OF ALL THE FOREGOING, after finding respondent to be administratively liable
for Simple MISCONDUCT a penalty of one (1) month suspension from office without
pay is hereby imposed, with a warning that a repetition of the same act will be
dealt with more severely.
SO
ORDERED.[5]
The
Ombudsman also issued an Order dated
Respondent
filed with the CA a Special Civil Action for Certiorari and an Amended
Petition for Special Civil Action for Certiorari under Rule 65 of the
Rules of Court. Respondent disputed the
factual basis of the Ombudsman decision as well as its authority to directly
impose a penalty of suspension, arguing that the Ombudsman may only recommend
to the proper disciplining authority the implementation of such penalty.[7]
The
Ombudsman itself, through the Solicitor General, filed a Comment[8]
and Memorandum,[9]
maintaining that its decision to suspend respondent is valid under the facts
established.
The CA issued a Temporary Restraining
Order against the implementation of the Ombudsman decision.[10] Thereafter, it rendered the
Paragraph
3, Section 13, Article XI of the Constitution dealing specifically on the power
of the Ombudsman, provides:
(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.
In
conjunction thereto, Section 12 of Article XI states:
Sec. 12. The Ombudsman and his
Deputies, as protectors of the people, shall act promptly on complaints filed
in any form or manner against public officials or employees of the Government,
or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations, and shall, in appropriate cases,
notify the complainants of the action taken and the result thereof.
We must give Our assent to the stand of petitioner
that the operative phrase in Paragraph 3, Section 13, Article XI, is “to
recommend”. The word “recommend” has been defined by Black's Law Dictionary as
“an action which is advisory in nature rather than one having any binding
effect.”[11]
x x x x
Even under the Ombudsman Act of 1989, wherein the
Legislature sought to put more teeth, so to speak, to the Office of the
Ombudsman, it may be gleaned from the language of the law that punitive prerogatives
have still be withheld from the Ombudsman in so far as the official complained
against is concerned. Paragraph 3 of Section 15 of the said law reads:
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; (Emphasis supplied)
x x x x
Thus,
even Republic Act No. 6770 recognizes that the power of the Ombudsman to
adjudicate penalty after investigation is merely recommendatory or suggestive,
for otherwise, the law would not have to provide for the Ombudsman to first go
to the disciplining authority and direct the latter to take appropriate action
against the erring government functionary. This is as it should be. For to give
it a contrary construction would be productive of nothing but mischief, such
being at war with the explicit language of the Fundamental Law. As the spring
cannot rise higher than its source, neither can a statute be at variance with
the Constitution.
x x x x
Indeed,
the Supreme Court in Tapiador v. Office of the Ombudsman, per Justice
Sabino de Leon, stated, albeit in an obiter dictum, that “(b)esides, assuming
that petitioner were administratively liable, the Ombudsman has no authority to
directly dismiss the petitioner from the government service, more particularly
from his position in the BID. Under Section 13, subparagraph (3), of Article XI
of the 1987 Constitution, the Ombudsman can only 'recommend' the removal or the
public official or employee found to be at fault, to the public official
concerned.
In fine,
We find, and so hold, that the Office of the Ombudsman has only the power to
investigate possible misconduct of a government official or employee in the
performance of his functions, and thereafter recommend to the disciplining
authority the appropriate penalty to be meted out, and that it is the disciplining
authority that has the power or prerogative to impose such penalty.[12]
The CA further absolved respondent
of the offense of simple misconduct in view of findings that respondent was
justified in withholding complainants' uniform allowance for lack of
authorization from the municipal mayor for the release of said funds as
required under the Local Government Code and its implementing rules, as well as
Local Budget Circular No. 68 of the Department of Budget and Management.[13] The dispositive portion of the CA Decision
reads:
WHEREFORE,
the Petition is hereby GRANTED. The impugned Order [sic] of the Office of the
Ombudsman, having been issued without grave abuse of discretion amounting to
excess of jurisdiction, hereby ANNULLED AND SET ASIDE.
SO ORDERED.[14]
The
Ombudsman's motion for reconsideration was denied by the CA.[15]
On
its own, the Ombudsman filed a Petition for Review on Certiorari[16]
with the Court but the same was denied for having been filed out of time.[17]
Through
the Solicitor General, the Ombudsman filed the present petition which the Court
initially denied, also for having been filed out of time; but upon motion for
reconsideration by the Ombudsman, the petition was eventually given due course
per its Resolution dated April 12, 2004.[18]
The claim of respondent -- that the present petition is barred by the
Ombudsman prior petition (G.R. No. 160501), which was dismissed -- is not
plausible. Suffice it to state that the
Court gave due course to the present petition, for it raises highly meritorious
arguments, dealing with the undue
diminution of the constitutionally mandated investigatory power of the
Ombudsman, against which the Ombudsman must be accorded every opportunity to
defend itself;[19]
and that the assailed decision of the CA is blatantly erroneous.[20]
Exactly
the same issues raised in the petition, to wit:
I
Is the Office of the Ombudsman
empowered to conduct administrative adjudication proceedings against public
officers over whom it has jurisdiction?
II
Are orders/decisions of the
Office of the Ombudsman imposing the penalty of suspension of one month
appealable?[21]
have long been
resolved by the Court in Office of the Ombudsman v. Court of Appeals and
Armilla,[22]
Office of the Ombudsman v.
Court of Appeals and
In
Office of the Ombudsman v. Court of Appeals and Armilla, therein
respondents Armilla, all employees of the Department of Environment and Natural
Resources, were found by the Ombudsman administratively liable for simple
misconduct and meted the penalty of suspension for one month. On petition for certiorari filed by Armilla,
et al., the CA held that the Ombudsman committed grave abuse of
discretion in imposing the penalty of one-month suspension. Citing Tapiador v. Office of the Ombudsman,[25]
the CA declared that the Ombudsman’s power in administrative cases is limited
to the recommendation of the penalty
of removal, suspension, demotion, fine, censure, or prosecution of a public
officer or employee found to be at fault; accordingly, it has no power to
impose the penalty of suspension on Armilla, et al.
The
CA adopted the same view in Office of the Ombudsman v. Court of
Appeals and Santos where it held that the Ombudsman had no authority to
directly penalize therein respondent Lorena Santos, but may only recommend to
her agency, the Land Transportation Franchising and Regulatory Board, the imposition
of an administrative penalty against her.
In
both cases, the Court reversed the CA and declared that the scope of the
authority of the Ombudsman in administrative cases as defined under the
Constitution and R.A. No. 6770 is broad
enough to include the direct imposition of the penalty of removal, suspension,
demotion, fine or censure on an erring public official or employee. In Office
of the Ombudsman
v. Court of Appeals and Armilla, the Court
held:
Still in connection with
their administrative disciplinary authority, the Ombudsman and his deputies are
expressly given the power to preventively suspend public officials and
employees facing administrative charges in accordance with Section 24 of
Republic Act No. 6770:
Sec. 24. Preventive
Suspension. - The Ombudsman and his Deputy may preventively suspend any
officer or employee under his authority pending an investigation, if in his
judgment the evidence of guilt is strong, and (a) the charge against such
officer or employee involves dishonesty, oppression or grave misconduct, or
neglect in the performance of duty; (b) the charges would warrant removal from
the service; or (c) the respondent's continued stay in office may prejudice the
case filed against him.
The preventive suspension
shall continue until the case is terminated by the Office of the Ombudsman but
not more than six months, without pay, except when the delay in the disposition
of the case by the Office of the Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the period of such delay shall not be
counted in computing the period of suspension herein provided.
Section 25 thereof sets forth the penalties as
follows:
Sec. 25. Penalties.
- (1) In administrative proceedings under Presidential Decree No. 807, the
penalties and rules provided therein shall be applied.
(2) In other administrative proceedings, the
penalty ranging from suspension without pay for one year to dismissal with
forfeiture of benefits or a fine ranging from five thousand pesos (P5,000.00)
to twice the amount malversed, illegally taken or lost, or both at the
discretion of the Ombudsman, taking into consideration circumstances that
mitigate or aggravate the liability of the officer or employee found guilty of
the complaint or charges.
As referred to in the above provision, under
Presidential Decree No. 807,[32] the penalties that may be imposed by the
disciplining authority in administrative disciplinary cases are removal from
the service, transfer, demotion in rank, suspension for not more than one year
without pay, fine in an amount not exceeding six months' salary, or reprimand.
Section 27 of Republic Act
No. 6770 provides for the period of effectivity and finality of the decisions
of the Office of the Ombudsman:
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 x
Findings of facts by the
Office of the Ombudsman when supported by substantial evidence are
conclusive. Any order, directive or decision imposing the penalty of
public censure or reprimand, suspension of not more than one month's salary
shall be final and unappealable.
x x x x
All these provisions in Republic Act No. 6770
taken together reveal the manifest intent of the lawmakers to bestow on the
Office of the Ombudsman full administrative disciplinary authority. These
provisions cover the entire gamut of administrative adjudication which entails
the authority to, inter alia, receive complaints, conduct investigations, hold
hearings in accordance with its rules of procedure, summon witnesses and
require the production of documents, place under preventive suspension public
officers and employees pending an investigation, determine the appropriate
penalty imposable on erring public officers or employees as warranted by the
evidence, and, necessarily, impose the said penalty.
Moreover, in Office
of the Ombudsman
v. Court of Appeals and Santos, the Court drew attention to
subparagraph 3 of Sec. 15 of R.A. No. 6770, which provides:
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. (Emphasis supplied)
The Court held that the
aforecited proviso -- that the refusal, without just cause, of any officer to
comply with an order of the Ombudsman to penalize an erring officer or employee
with removal, suspension, demotion, fine, censure, or prosecution is a ground
for disciplinary action against said officer -- is a strong indication that the
Ombudsman’s "recommendation" is not merely advisory in nature but is
actually mandatory within the bounds of law.
It being settled that the Ombudsman has the authority to impose
administrative penalties, it did not act with grave abuse of discretion in the
present case when it meted the penalty of suspension on respondent for simple
misconduct. The CA therefore erred in
granting the petition for certiorari of respondent.
The next issue is whether the imposition of such penalty can no longer
be appealed to the CA.
The Court had occasion to resolve
the same issue in Herrera v.
x x x [T]he Court, again citing Sec. 27 of R.A.
No. 6770, Sec. 7, Rule III of the Rules of Procedure of the Office of the
Ombudsman and Lapid v. Court of Appeals, reiterated that decisions of the
Ombudsman in administrative cases imposing the penalty of public censure,
reprimand, or suspension of not more than one month, or a fine equivalent to
one month salary shall be final and unappealable. The penalty imposed
upon herein petitioner being suspension for one month without pay, we hold the
same final and unappealable, as correctly ruled by the Court of Appeals.
(Emphasis added)
Thus, the CA erred when it
reviewed on appeal the factual basis of the Ombudsman decision despite its
being final and unappealable under Sec. 27 of R.A. No. 6770. As we held in Republic v. Francisco,[28]
considering that a decision of the Ombudsman imposing the penalty of suspension
for not more than one month is final and unappealable, “it follows that the CA
ha[s] no appellate jurisdiction to review, rectify or reverse the same.” This is not to say that decisions of the
Ombudsman cannot be questioned – such decisions are still subject to the test
of arbitrariness or grave abuse of discretion through a petition for certiorari
under Rule 65 of the Rules of Court. However,
as earlier discussed, the Ombudsman did not act with grave abuse of discretion
in imposing on respondent the penalty of suspension without pay for not more
than one month, the same being within its ample authority to impose under the
Constitution and R.A. No. 6770.
WHEREFORE, the petition
is GRANTED. The May 22, 2003 Decision and October 13, 2003 Resolution of the Court of
Appeals are REVERSED and SET
ASIDE.
No costs.
SO ORDERED.
MA.
ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE CONCUR:
CONSUELO
YNARES-SANTIAGO
Associate Justice
Chairperson
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DANTE O. TINGA Associate Justice |
ANTONIO EDUARDO B. NACHURA Associate Justice |
diosdado m. peralta
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
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 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
* In
lieu of Justice Minita V. Chico-Nazario, per Special Order No. 590 dated
** The present petition impleaded the Court of Appeals as respondent. Pursuant to Section 4, Rule 45 of the Rules of Court, the name of the Court of Appeals is deleted from the title.
[1] Penned
by Associate Justice Romeo A. Brawner and concurred in by Associate Justices
Eliezer R. de Los
[2] CA
rollo, p. 29.
[3] Rollo,
p. 64.
[4] CA
rollo, p. 35.
[5]
[6]
[7]
[8] CA
rollo, p. 326.
[9]
[10]
[11] Rollo,
p. 51.
[12]
Rollo, pp. 57-58.
[13] Rollo,
pp. 59-60.
[14]
[15]
[16] Docketed
as G.R. No. 160501.
[17] Entry
of Judgment dated
[18]
[19] Ombudsman
v. Court of Appeals, G.R. No. 159395,
[20]
[21] Petition,
rollo, p. 17.
[22] G.R.
No. 160675,
[23] G.R.
No. 167844,
[24] G.R.
No. 155320,
[25] 429
Phil. 47, 58 (2002).
[26] Supra
note 24. See also Office of the Ombudsman v. Alano, G.R. No. 149102,
February 15, 2007, 516 SCRA 18; Barata v. Abalos, Jr., G.R. No. 142888,
June 6, 2001, 358 SCRA 575.
[27] G.R.
No. 144573,
[28] G.R.
No. 163089,