FIRST DIVISION
[G.R. No. 172553, December 14, 2011]
OFFICE OF THE DEPUTY OMBUDSMAN FOR LUZON, HONORABLE VICTOR C. FERNANDEZ, IN HIS CAPACITY AS DEPUTY OMBUDSMAN FOR LUZON, AND THE GENERAL INVESTIGATION BUREAU-A, REPRESENTED BY MARIA OLIVIA ELENA A. ROXAS, PETITIONERS, VS. JESUS D. FRANCISCO, SR., RESPONDENT.
FACTS
In November 1998, Ligorio Naval filed a complaint before the Office of the Ombudsman accusing the Mayor of Bacoor Cavite, Jessie Castillo in violating the Anti-Graft and Corrupt Practices Act in relation to the award of construction of the municipal building of Bacoor, Cavite to St. Martha's Trading and Gen. Contractors whose license was allegedly expired at the time the contract was signed and the construction company was allegedly disqualified for participating a 9M project since they are only classified belonging to Category "C", hence may only undertake projects worth 3M or lower.
When Castillo was able to submit certifications to the effect that the contractor was not a holder of an expired license, and was classified as a Category “A” contractor, the Ombudsman dismissed Naval's complaint.
A reevaluation of the case was ordered by Ombudsman Aniano Desierto and a Memorandum with recommendation from the Graft Investogation and Prosecution that the previous case be revived and redocketed and be subjected to further preliminary investigation with the inclusion of the members of Prequalifications, Bids and Awards Committee (PBAC) of the Municipality of Bacoor, Cavite as respondents including Jesus Framcisco who was then the Municipal Planning and Development Officer. The respondents were subsequently preventively suspended for the duration of the case in accordance with RA 6770. Francisco filed before the Court of Appeals a Petition for Certiotari with Application for Temporary Restraining Order and or Writ of Preliminary Injunction arguing that the Office of Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction when it ordered his preventive suspension. The Court of Appeals rendered its assailed Decision in favor of Francisco. The Office of the Deputy Ombudsman for Luzon filed for a Motion for reconsideration but the same was denied.
ISSUE
Whether the Office of Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction upon ordering preventive suspension to the respondents
RULING
The court clarified that preventive suspension is merely a "preventive measure, a preliminary step in an administrative investigation; the purpose thereof is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him."
Section 24 of RA 6770 expressly provides the power of the Ombudsman or his Deputy to place a public officer or employee under preventive suspension.
However the Court finds that the petition at bar, which seeks the reinstatement of the Order of preventive suspension dated May 30, 2005 of the Office of the Deputy Ombudsman for Luzon, has been rendered moot. In view of the above-stated supervening event that occurred after the filing of the instant petition, the same has ceased to present a justiciable controversy.
The Court hereby denies the instant petition for mootness.
FIRST DIVISION
[G.R. No. 173268, August 23, 2012]
ERNESTO A. FAJARDO, PETITIONER, VS. OFFICE OF THE OMBUDSMAN, NATIONAL BUREAU OF INVESTIGATION AND BUREAU OF CUSTOMS, RESPONDENTS.
FACTS
Petitioner Ernesto Fajardo, an employee of Bureau of Customs (BOC) designated as a Special Collecting Officer at the Ninoy Aquino International Airport (NAIA) Customs House, Collection Division, failed to remit the total amount of P53,214,258.00 unremitted collection from sales of accountable forms with money value and stamp. This findings were result of the audit made by the Commission on Audit State Auditor. Customs Commissioner Antonio M. Bernardo requested respondent National Bureau of Investigation-National Capital Region (NBI-NCR) to conduct an investigation on the reported misappropriation of public funds committed by petitioner. A case of plunder was filed against the petitioner. When the petitioner failed to return the said money and duly account for the same, an administrative investigation commenced. The Office of the Ombudsman rendered a Decision finding petitioner guilty of dishonesty and grave misconduct, ordering the dismissal of the petitioner. Petitioner filed a motion for reconsideration but was subsequently denied. When petitioner elevated the case to the CA, the CA affirmed the decision of the Ombudsman.
ISSUE
1) Whether the CA committed grave abuse of discretion in failing to consider and appreciate that there was no direct evidence to prove that petitioner malversed and/or amassed government funds.
2) Whether the Ombudsman can directly dismiss petitioner from government service.
RULING
There is substantial evidence to support the finding that petitioner is guilty of dishonesty and grave misconduct. The result of the audit was not the sole basis for his dismissal. Affidavits and testimonies of witnesses taken during the ball hearing in the criminal case were also submitted as evidence. The discrepancy between the "audit sales' and the actual amount remitted by petitioner is sufficient evidence of dishonesty and grave misconduct warranting his dismissal from public service.
As a last ditch effort to save himself, petitioner now puts in issue the power of the Ombudsman to order his dismissal from service. Petitioner contends that the Ombudsman in dismissing him from service disregarded Section 13, subparagraph 3, Article XI of the Constitution as well as Section 15(3) of RA No. 6770.which only vests in the Ombudsman the power to recommend the removal of a public official or employee.
Petitioner's contention has no leg to stand on.
It is already well-settled that "the power of the Ombudsman to determine and impose administrative liability is not merely recommendatory but actually mandatory." As we have explained in Atty. Ledesma v. Court of Appeals, the fact "[t]hat the refusal, without just cause, of any officer to comply with [the] order of the Ombudsman to penalize an erring officer or employee is a ground for discipilinary action [under Section 15(3) of RA No. 6770]; is a strong indication that the Ombudsman's 'recommendation' is not merely advisory in nature but is actually mandatory within the bounds of law."
The petition was hereby DENIED. the Decision of CA hereby AFFIRMED.
EN BANC
[G.R. No. 135805. April 29, 1999]
CIVIL SERVICE COMMISSION, petitioner, vs. PEDRO O. DACOYCOY, respondent.
FACTS
On November 29, 1995, George P. Suan, a Citizens Crime Watch Vice-President, Allen Chapter, Northern Samar, filed with the Civil Service Commission, Quezon City, a complaint against Pedro O. Dacoycoy, for habitual drunkenness, misconduct and nepotism. After a formal investigation, the Civil Service Commission found no substantial evidence to support the charge of habitual drunkenness and misconduct but respondent was found guilty of nepotism on two counts for having his two sons, Rito and Ped Dacoycoy appointed as driver and utility worker, respectively. The penalty of dismissal from service was imposed upon him. Respondent filed a motion for reconsideration but was denied by CSC. Respondent filed with the CA a special civil action for certiorari with preliminary injunction to set aside CSC's resolution. The CA ruled in favor of the respondent which further held that the person who recommends and appoints should be the one sanctioned, as it is he who performs the prohibited act. Hence this appeal.
ISSUE'
Whether or not there is nepotism in the case at bar.
RULING
The Court agree with the CSC that respondent Pedro O. Dacoycoy was guilty of nepotism and correctly meted out the penalty of dismissal from service.
The law defines nepotism as follows:
“Sec. 59. Nepotism. – (1) All appointments to the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government owned or controlled corporations, made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited.
Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following:
a) appointing authority;
b) recommending authority;
c) chief of the bureau or office, and
d) person exercising immediate supervision over the appointee.
Respondent Dacoycoy is the Vocational School Administrator, Balicuatro College of Arts and Trades, Allen, Northern Samar. The recommending officer Mr. Daclag was a subordinate of respondent, who was the school administrator. He authorized Mr. Daclag to recommend the appointment of first level employees under his immediate supervision. Then Mr. Daclag recommended the appointment of respondent’s two sons and placed them under respondent’s immediate supervision serving as driver and utility worker of the school. Both positions are career positions.
The Court hereby granted the petition and reverses the decision of CA. The Cpurt also revived and affirmed the CSC resolution dismissing respondent Pedro O Dacoycoy from service.
EN BANC
[ G.R. NO. 154898, FEBRUARY 16, 2005 ]
CIVIL SERVICE COMMISSION, PETITIONER, VS. PASTOR B. TINAYA, RESPONDENT.
FACTS
On November 16, 1993, respondent Pastor B. Tinaya was issued a permanent appointment as municipal assessor of the Municipality of Tabontabon, Leyte by Municipal Mayor Priscilla R. Justimbaste. The CSC Regional Office No. VIII approved the appointment as temporary effective for 1 year. Permanency is subject to the submission of his service record. On december 16, 1993, the respondent married Caridad Justimbaste, daughter of Mayor Priscilla Justimbaste. Upon expiration of his term, Mayor Justimbaste appointed him anew as municipal assessor. The CSC approved its appointed but later on recalled his appointment in a resolution having been issued in violation of the law of nepotism. Respondent filed a motion of reconsideration but was subsequently denied. Respondent filed an appeal with the CA. The decision of CA was in favor of respondent setting aside the CSC Resolutions and respondent was hereby entitled to his office as municipal assessor and by virtue of his permanent appointment dated November 16, 1993. Ruling is based on the Appellate Court’s finding that respondent’s original appointment as municipal assessor on November 16, 1993 was permanent in nature, although approved by the CSC on December 1, 1993 as temporary. Being permanent in character, he enjoys security of tenure and cannot be removed from office without valid cause. Thus, his reappointment to the same post on December 1, 1994 was unnecessary or “a mere superfluity.” Moreover, respondent cannot be held guilty of nepotism as he was not yet married to the daughter of former Mayor Priscilla Justimbaste at the time the latter appointed him municipal assessor. Hence this petition.
ISSUE
Whether the respondent is guilty of violation of nepotism.
RULING
Records show that before respondent married Caridad Justimbaste, daughter of then Mayor Priscilla Justimbaste, on December 16, 1993, the latter appointed him municipal assessor. The appointment was permanent. As stated earlier, petitioner approved it as temporary. On December 1, 1994, Acting Mayor Luban extended to respondent (already the son-in-law of Mayor Justimbaste) a permanent appointment after his original temporary appointment expired. This new appointment was initially disapproved by petitioner. But respondent’s mother-in-law, Mayor Justimbaste, appealed to the CSC Regional Office No. VIII. Being then the incumbent mayor, she was the chief of respondent and deemed to have recommended him to Vice-Mayor Luban to be appointed as municipal assessor. Verily, such appointment is in violation of Section 59, Chapter 8 of the Civil Service Law, which provides:
“SEC. 59. Nepotism. – (1) All appointments in the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government-owned or controlled corporations, made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited.
As used in this Section, the word ‘relative’ and members of the family referred to are those related within the third degree either of consanguinity or of affinity.
The petition was granted and the decision of the Court of Appeals was revered. CSC resolution was affirmed.
EN BANC
[ G.R. No. 139794, February 27, 2002 ]
MARTIN S. EMIN, PETITIONER, VS. CHAIRMAN CORAZON ALMA G. DE LEON, COMMISSIONERS THELMA P. GAMINDE AND RAMON P. ERENETA, JR., OF THE CIVIL SERVICE COMMISSION, RESPONDENTS.
FACTS
Appointment papers for a change of status from provisional to permanent under Republic Act No. 6850 of teachers were submitted to the Civil Service Field Office-Cotabato at Amas, Kidapawan, Cotabato with attached photocopies of certificates of eligibility of the teachers. Although the certificates seemed authentic, the signatures were forgeries. Upon verification, it was found out that said applications were disapproved and the certificates although authentic but were never issued to anyone. Two separate investigations were conducted (1) on how the R.A. 6850 certificates were issued/released from the Office, and (2) on how the teachers got said certificates. The teachers concerned were asked to report to the Office and bring the original copies of their certificates of eligibility. The teachers gave their own sworn statements pointing the petitioner as the person who gave them the R.A. 6850 certificates of eligibility they had attached to their appointments for a fee. Upon finding a prima facie case, petitioner was formally charged with dishonesty, grave misconduct and conduct prejudicial to the best interest of the service.
The petitioner denied the accusations and filed for motion to dismiss but was subsequently denied. Six teachers cited in the charge sheet were presented as witnesses for prosecution including two other holders of fake certificates of eligibility. On June 29, 1994, Director Buenaflor submitted a report[5] to the Chairman of the Civil Service Commission where CSC found sufficient evidence to warrant the conviction of petitioner. The CSC resolution decreed petitioner guilty of Grave Miscounduct with penalty of dismissal from service and its accessory penalties. Petitioner filed again for Motion of Reconsideration but the same was denied. Petitioner elevated the case to the Court of Appeals, but it was subsequently dismissed. Hence this petition.
ISSUE
- Whether or not the CSC has original jurisdiction over the present case; and (2) whether or not petitioner was accorded due process.
RULING
Petitioner is the Non-Formal Education Supervisor of the DECS, in Kidapawan, Cotabato, in-charge of the out-of-school programs, and this position is covered by the definition of teacher as provided by R.A. 4670. The petitioner’s contention that since he is under R.A. 4670, the Investigating Committee should have investigated his case in conformity with the DECS Rules of Procedure, is correct. However, at this late hour, the proceedings conducted by the public respondent CSC can no longer be nullified on procedural grounds. Under the principle of estoppel by laches, petitioner is now barred from impugning the CSC’s jurisdiction over his case. The Civil Service Commission has afforded the petitioner ample time to defend and opportunity to be heard in view of the case filed against him and during this time no objections were raised. Petitioner voluntarily and willfully participated in the proceedings. As held previously, participation by parties in the administrative proceedings without raising any objection thereto bars them from raising any jurisdictional infirmity after an adverse decision is rendered against them.[22] In the case at bar, petitioner raised the issue of lack of jurisdiction for the first time in his amended petition for review[23] before the CA.
Petitioner’s contention that he was denied due process for he was not allowed for cross examination was equally unmeritorious. It is well to remember that in administrative proceedings, technical rules of procedure and evidence are not strictly applied and administrative due process cannot be fully equated with due process in its strict judicial sense. Neither is there merit in petitioner’s assertion that he was denied the right to due process when the CSC Regional Office, according to him, acted as investigator, prosecutor, judge and executioner. This kind of procedure is not unusual in an administrative proceeding. It is has to be noted however, that ultimately the Civil Service Chairman was the one who promulgated the decision.
Lastly, the petitioner contention of admitting the affidavit of Teodorico Cruz as newly discovered evidence cannot be accepted by court. Newly discovered evidence can only be accepted if the petitioner exercised reasonable diligence in seeking to locate such evidence before or during trial but had nonetheless failed to secure it. It appears that the affidavit was merely an afterthought, a last ditch effort to clear petitioner’s name.
Hence instant petition is hereby denied and decision of CA is affirmed.
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