THIRD DIVISION
|
MARCELO G.
GANADEN, OSCAR B. MINA, JOSE M. BAUTISTA AND ERNESTO H. NARCISO, JR. Petitioners, - versus - |
G.R. Nos. 169359-61 Present: CARPIO
MORALES, J., Chairperson, BRION, BERSAMIN,
VILLARAMA,
JR., and SERENO, JJ. |
|
HONORABLE OFFICE OF THE
OMBUDSMAN AND ROBERT K. HUMIWAT, Respondents. |
Promulgated: June
1, 2011 |
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DECISION
VILLARAMA,
JR., J.:
Before us is the petition for certiorari of petitioners Marcelo G.
Ganaden, Oscar B. Mina, Jose M. Bautista and Ernesto H. Narciso, Jr. praying for
the annulment of the May 22, 2003 Joint Resolution[1]
of the Office of the Ombudsman in OMB-L-C-02-0923-I to OMB-L-C-02-0926-I, as
well as the August 21, 2003 and April 26, 2005 Orders[2]
in OMB-L-C-02-0926-I and the July 7, 2005 Joint Order[3]
in OMB-L-C-02-0923-I to OMB-L-C-02-0926-I, finding probable cause to indict them
for violation of Republic Act (R.A.) No. 3019 or the Anti-Graft and Corrupt
Practices Act.
The facts that
initiated the present controversy were summarized in the assailed Joint
Resolution as follows:
A
group of employees[4]
of the National [P]ower Corp. [NPC], District IV (Cagayan Valley Area) filed a
complaint against Marcelo Ganaden,
NPC-Area Manager, Oscar B. Mina,
Employee, NPC-Substation, Josephine V.
Atal, Cashier, NPC-Substation, Jose
M. Bautista, Ernesto H. Narciso,
Jr. and Virgilio M. Rimando
for allegedly committing the following:
1. Printing and sale of raffle tickets using NPC
Resources under the direction of Mr. Ganaden
by making it appear to be the project of Cagayan Valley Area Employees
Association but without consultation with the NPC-District IV employees and the
required permit from appropriate agencies.
The employees, security guards and janitors were given tickets ranging
from P200 to P1,000.00 with the instruction that [the tickets
were] considered sold. However, the
tickets were not drawn nor the monies collectedreturned.
2.
By making it appear that the assembly,
erection, mounting of beams, gantry towers and steel towers at the 230 KV and
69 KV switchyard at Tuguegarao substation was thru Pakyaw Labor [contract for
piece of work] done by the linemen of Tuguegarao substation as shown in their
daily [t]ime record. In fact, based [o]n
the Security In and Out Logbook and Security Attendance Sheet, there was no
entry of [the alleged contractors] Mr.
De Gracia nor Jojo Mateo for
the period March 29, 1999 to April 22, 1999, the period the pakyaw work [was
supposedly done].
3.
mr. Ganaden influenced a certain Perfecto D. Lazaro, husband of the
proprietress of Remy D. Lazaro
Builders and Construction Supplier to agree that the volume of soil to be
removed and hauled from the 230 KV switchyard of Tuguegarao substation be
increased from the actual volume of about 5 cubic meters to 253 cubic meters
with the excess payment be given to him (Ganaden).
4.
On Dec[ember] 14 and 23, 2000, Mr. Ganadens personal car with plate [n]o.
TDF 366 refueled at Solano Caltex but [it was made to appear that the gas was] loaded
to an NPC vehicle.
5.
Mr. Ganaden,
also reassigned employees from one province to another by virtue of his Office
Order No. AO-99-418. However, said order
was based on a fictitious and unapproved Table of Organization which was not
approved by the higher management.
6.
Purchase and withdrawal of tires in CY
2000 purposely to replace the tires of NPC service vehicle with Plate [No.] SEW
454, his service vehicle, but said tires were installed to his personal Nissan
Pick-up car with Plate [No.] ADL 157.
7.
Withdrawal and delivery of ceramic tiles
in CY 2000 from SANTIAGO Substation to his house at Fairview, Quezon City which
was undergoing renovation.[5]
Petitioners defended themselves through their
counter-affidavits, basically offering explanations and clarifications to the
alleged acts and denying having committed any illegality.
On
WHEREFORE, premises considered, it is hereby
recommended that respondents GANADEN,
NARCISO and BAUTISTA be charged with Violation of Sec. 3 (e) of R.A. 3019.
Likewise,
GANADEN and MINA should also be
charged with Violation of Sec. 3 (b) of R.A. 3019 before the proper court.
However,
as to other respondents, finding no sufficient evidence to include them in the
information, case is hereby DISMISSED.
SO RESOLVED.[7]
Petitioners sought reconsideration of the resolution
but their motion was denied in an Order[8]
dated
Meanwhile, considering the denial by the Ombudsman of
petitioners motion for reconsideration on
On
Petitioners argue that the complaints filed against
them are purely intended for harassment and done in retaliation to the
reorganization petitioner Ganaden did in 1999 when he was still the NPC Area
Manager in District IV-Cagayan Valley Area. They believe that the complaint is
a part of a bigger persecution plan against them, pointing out that it is just one
of more than thirty-four (34) pending complaints filed against them in
different courts, prosecution offices, and administrative agencies.[13]
Petitioners state that the complaint only relies on
self-serving testimonies of persons who are motivated by vengeance and ill will. Petitioners aver that the Office of the
Ombudsman blatantly disregarded the
Petitioners further question the Ombudsmans finding
of conspiracy among them.[15] They argue that the findings of the Ombudsman
are mere conclusions of law unsupported by any evidence that petitioner Ganaden
acted in unison with other petitioners in perpetuating the alleged crime.
Petitioners insist that the elements of conspiracy are simply inexistent.
Essentially, the question for our resolution is
whether the Office of the Ombudsman acted with grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing its May 22, 2003 Joint
Resolution finding probable cause to indict petitioners for alleged violation
of R.A. No. 3019 or the Anti-Graft and Corrupt Practices Act.
The petition is bereft of merit.
We hold that the Office of the Ombudsman did not act
with grave abuse of discretion amounting to lack or excess of jurisdiction in
finding probable cause to hold petitioners for trial for alleged violation of R.A.
No. 3019.
Jurisprudence has established rules on the determination
of probable cause. In Galario v. Office
of the Ombudsman (
[A] finding of probable cause needs only to rest on evidence
showing that more likely than not a crime has been committed and there is
enough reason to believe that it was committed by the accused. It need not be
based on clear and convincing evidence of guilt, neither on evidence
establishing absolute certainty of guilt. A finding of probable cause merely
binds over the suspect to stand trial. It is not a pronouncement of guilt.
The term does not mean actual and positive
cause nor does it import absolute certainty.
It is merely based on opinion and reasonable belief. x x x. Probable cause does not require an inquiry into whether there
is sufficient evidence to procure a conviction. (Italics in the original.)
In the
case at bar, the Office of the Ombudsman found sufficient reason to believe
that a violation of R.A. No. 3019 has been committed and that
the petitioners are probably guilty thereof.
The investigation resulted in several affidavits[17]
that indicate possible involvement of the petitioners in the alleged violation. Statements to the effect that the assembly,
erection, mounting of beams, gantry towers and steel towers at the 230 KV
switchyard of the Tuguegarao substation were done by the NPC employees
themselves and not by any contractor verify and strengthen the accusations in
the complaint.
Further, the alleged contractor himself Randy M. De
Gracia, executed a sworn statement[18]
that he was requested to sign a price proposal for the supply of pakyaw labor for the assembly,
erection, mounting of beams, steel posts at the 230 KV switchyard of the Tuguegarao
substation, and that he did not actually perform the aforementioned work but he
was instructed by Engr. Narciso, Jr. in July 1999 to get his check from the
cashier of NPC and to encash it and give the proceeds to Engr. Narciso, Jr.
On the charge of taking part in the payment for
services rendered by the Rema D. Lazaro Builders and Construction Supplies,
Perfecto Lazaro stated under oath that sometime in the middle of August 1999,
petitioner Ganaden through petitioner Mina, offered to give him a project,
which was the removal and transit hauling of excess soil from the 230 KV
switchyard of the Tuguegarao substation for as long as he will give petitioner
Ganaden the excess payment for the actual work to be done. He also stated that
in October 1999, he was made to sign the related disbursement voucher and to issue
an Official Receipt to make it appear that the entire work claimed to be done
was indeed performed.[19]
All these allegations in the complaint coupled with
the statements of several key witnesses, among others, all point towards some kind
of irregularity in the performance of public works. Based on the assessment of
the Office of the Ombudsman, there is sufficient reason to believe that a
violation of R.A. No. 3019 has been committed. Also, based on the evidence
presented, there is sufficient reason to believe that the accused public
officials are probably guilty of the violation.
On the contention of the petitioners that the Office
of the Ombudsman failed to consider some relevant evidence, specifically the December
5, 2001 Comprehensive Internal Audit Report and affidavit of workers, that
would show that the complaint lacks factual and legal ground, we find that
these are matters of defense more properly raised during trial. The same is true for their allegation that
conspiracy does not exist. We have held
that the absence (or presence) of any conspiracy among the accused is evidentiary
in nature and is a matter of defense, the truth of which can be best passed
upon after a full-blown trial on the merits.[20]
It is worth stressing that the Ombudsmans finding
of probable cause does not touch on the issue of guilt or innocence of the
accused. It is not the function of the
Office of the Ombudsman to rule on such issue.
All that the Office of the Ombudsman did was to weigh the evidence presented
together with the counter-allegations of the accused and determine if there was
enough reason to believe that a crime has been committed and that the accused
are probably guilty thereof. In this light, we find no compelling reason to
disturb the findings of the Office of the Ombudsman.
On the assertion of grave abuse of discretion
amounting to lack or excess of jurisdiction, we are guided by previous
pronouncements of this Court regarding this matter. In Vergara v. Ombudsman,[21]
the Court ruled:
We reiterate the rule that courts do
not interfere in the Ombudsmans exercise of discretion in determining probable
cause unless there are compelling reasons. The Ombudsmans finding of probable
cause, or lack of it, is entitled to great respect absent a showing of grave
abuse of discretion. Besides, to justify the issuance of the writ of certiorari
on the ground of abuse of discretion, the abuse must be grave, as when the
power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and it must be so patent as to amount to an evasion of a
positive duty or to a virtual refusal to perform the duty enjoined, or to act
at all, in contemplation of law, as to be equivalent to having acted without
jurisdiction.
Grave abuse of discretion is defined as capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is
not enough. It must be grave abuse of discretion as when the power is exercised
in an arbitrary or despotic manner by reason of passion or personal hostility,
and must be so patent and so gross as to amount to an evasion of a positive
duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.[22]
In the
case at bar, the Office of the Ombudsman properly conducted the investigation
and received evidence on the allegations and counter-allegations. The Office of the Ombudsman diligently sifted
through all the relevant and pertinent allegations, statements of witnesses,
defenses raised by the accused officials, and audit reports. Based on the submitted data and information,
it made a determination of probable cause. There is no showing of any
capricious, whimsical and arbitrary action or inaction on the part of the
Office of the Ombudsman. In the
questioned
WHEREFORE,
the petition for certiorari is DISMISSED.
With costs
against petitioners.
SO ORDERED.
|
|
MARTIN
S. VILLARAMA, JR. Associate
Justice |
|
WE
CONCUR: CONCHITA CARPIO MORALES Associate Justice Chairperson |
|
|
ARTURO D.
BRION Associate
Justice |
LUCAS
P. BERSAMIN Associate
Justice |
|
MA.
Associate Justice |
|
A
T T E S T A T I O N
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.
|
|
CONCHITA CARPIO MORALES Associate
Justice Chairperson, Third Division |
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII
of the 1987 Constitution and the Division Chairpersons Attestation, 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
Courts Division.
|
|
RENATO C. CORONA Chief Justice |
|
[1] Rollo, pp. 218-233.
[2]
[3]
[4] Led
by private respondent Robert K. Humiwat. See rollo, pp. 32, 85.
[5] Rollo,
pp. 221-222.
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
G.R. No. 166797,
[17] Rollo,
pp. 103, 119, 130-131.
[18]
[19]
[20] Go
v. The Fifth Division, Sandiganbayan, G.R. No. 172602, April 13, 2007, 521
SCRA 270, 289, citing Singian, Jr. v. Sandiganbayan, G.R. Nos.
160577-94, December 16, 2005, 478 SCRA 348, 363-364.
[21] G.R.
No. 174567,
[22] Cabrera
v. Lapid, G.R. No. 129098,