EN BANC
[ G.R. NO. 135805, APRIL 29, 1999 ]
CIVIL SERVICE COMMISSION,
PETITIONER, VS. PEDRO O. DACOYCOY, RESPONDENT.
Facts:
The petitioner, before this court, interposed an appeal for certiorari
to seek a reversal of the decision by the Court of Appeals ruling that the
respondent was not guilty of nepotism, thereby, declaring null and void the
petitioner’s resolution dismissing the respondent from the service as
Vocational School Administrator of Balicuatro College of Arts and Trade in
Allen, North Samar.
A complaint was filed with the Civil Service Commission, Quezon City
on November 29, 1995 against the respondent by a certain George P. Suan for the following causes of action: (a) habitual
drunkenness, (b) misconduct and (c) nepotism.
The Civil Service Regional Office No. 8, Tacloban City found a prima
facie case against respondent after it conducted its fact-finding investigation
and issued the corresponding formal charge against the respondent on March 5,
1996. On January 28, 1997, after the Civil Service Commission conducted a
formal investigation, it promulgated its resolution finding no substantial
evidence to support the charges of habitual drunkenness and misconduct. The
respondent was, however, found guilty of nepotism on two accounts as a result
of the appointment of his two sons, Rito and Ped Dacoycoy as driver and utility
worker, respectively, and their assignment under the direct supervision and
control of the respondent, being the Vocational School Administrator of
Balicuatro College of Arts and Trades. As a result, the penalty of dismissal
from the service was imposed on the respondent.
Issue:
Whether or not respondent Pedro O. Dacoycoy was guilty of nepotism and
correctly meted out the penalty of dismissal from the service.
Decision:
Respondent Dacoycoy is the Vocational School Administrator, Balicuatro
College of Arts and Trades, Allen, Northern Samar. It is true that he did not
appoint or recommend his two sons to the positions of driver and utility worker
in the Balicuatro College of Arts and Trades. In fact, it was Mr. Jaime Daclag,
Head of the Vocational Department of the BCAT, who recommended the appointment
of Rito. Mr. Daclag's authority to recommend the appointment of first level
positions such as watchmen, security guards, drivers, utility workers, and
casuals and emergency laborers for short durations of three to six months was recommended
by respondent Dacoycoy and approved by DECS Regional Director Eladio C. Dioko,
with the provision that such positions shall be under Mr. Daclag's immediate
supervision. On July 1, 1992, Atty. Victorino B. Tirol II, Director III, DECS
Regional Office VIII, Palo, Leyte, appointed Rito Dacoycoy driver of the
school. On January 3, 1993, Mr. Daclag also appointed Ped Dacoycoy casual
utility worker. However, it was respondent Dacoycoy who certified that
"funds are available for the proposed appointment of Rito Dacoycoy"
and even rated his performance as "very satisfactory". On the other
hand, his son Ped stated in his position description form that his father was
"his next higher supervisor". The circumvention of the ban on nepotism
is quite obvious. Unquestionably, Mr. Daclag was a subordinate of respondent
Pedro O. Dacoycoy, 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.
To our mind, the unseen but obvious hand of respondent Dacoycoy was
behind the appointing or recommending authority in the appointment of his two
sons. Clearly, he is guilty of nepotism.
By this ruling, we now expressly abandon and overrule extant
jurisprudence that "the phrase `party adversely affected by the decision'
refers to the government employee against whom the administrative case is filed
for the purpose of disciplinary action which may take the form of suspension,
demotion in rank or salary, transfer, removal or dismissal from office"
and not included are "cases where the penalty imposed is suspension for
not more then thirty (30) days or fine in an amount not exceeding thirty days
salary" or "when the respondent is exonerated of the charges, there
is no occasion for appeal."
Nepotism is one pernicious evil impeding the civil service and the
efficiency of its personnel. In Debulgado, we stressed that "The basic
purpose or objective of the prohibition against nepotism also strongly
indicates that the prohibition was intended to be a comprehensive one."
"The Court was unwilling to restrict and limit the scope of the
prohibition which is textually very broad and comprehensive." If not
within the exceptions, it is a form of corruption that must be nipped in the
bud or bated whenever or wherever it raises its ugly head. As we said in an
earlier case "what we need now is not only to punish the wrongdoers or
reward the `outstanding' civil servants, but also to plug the hidden gaps and
potholes of corruption as well as to insist on strict compliance with existing
legal procedures in order to abate any occasion for graft or circumvention of
the law."
WHEREFORE, the Court hereby GRANTS the petition and REVERSES the
decision of the Court of Appeals in CA-G.R. SP No. 44711.
ACCORDINGLY, the Court REVIVES and AFFIRMS the resolutions of the
Civil Service Commission dated January 28, 1998 and September 30, 1998,
dismissing respondent Pedro O. Dacoycoy from the service.
No costs.
SO ORDERED.
THIRD DIVISION
[ G.R. NO. 71562, OCTOBER 28, 1991 ]
JOSE C. LAUREL V, IN HIS OFFICIAL CAPACITY AS PROVINCIAL
GOVERNOR OF BATANGAS, PETITIONER, VS. CIVIL SERVICE COMMISSION AND LORENZO
SANGALANG, RESPONDENTS.
Facts:
Jose C. Laurel, is the duly elected Governor of the Province of
Batangas, upon assuming office on 3 March 1980, appointed his brother, Benjamin
Laurel, as Senior Executive Assistant in the Office of the Governor, a
non-career service position which belongs to the personal and confidential staff
of an elective official.
December 31, 1980, the position of Provincial Administrator of
Batangas became vacant due to the resignation of Mr. Felimon C. Salcedo III.
Allegedly for lack of qualified applicants and so as not to prejudice the
operation of the Provincial Government, petitioner designated his brother,
Benjamin Laurel, as Acting Provincial Administrator effective 2 January 1981
and to continue until the appointment of a regular Provincial Administrator,
unless the designation is earlier revoked.
On 28 April 1981, he issued Benjamin Laurel a promotional appointment
as Civil Security Officer, a position which the Civil Service Commission
classifies as "primarily confidential" pursuant to P.D. No. 868.
On 10 January 1983, private respondent Sangalang wrote a letter to the
Civil Service Commission to bring to its attention the "appointment"
of Benjamin Laurel as Provincial Administrator of Batangas by the Governor, his
brother. He alleges therein that: (1) the position in question is a career
position, (2) the appointment violates civil service rules, and (3) since the
Governor authorized said appointee to receive representation allowance, he
violated the Anti-Graft and Corrupt Practices Act. He then asks that the matter
be investigated.
Issues:
1.Whether the position of Provincial Administrator primarily
confidential?
2.Does the rule on nepotism apply to designation?
3.May a private citizen who does not claim any better right to a
position file a verified complaint with the Civil Service Commission to
denounce a violation by an appointing authority of the Civil Service Law and
rules?
Decision:
1.The first issue becomes important because if the questioned position
is primarily confidential, Section 49 of P.D. No. 807 on nepotism would not
apply in the instant case. Interestingly, however, petitioner did not raise it
in the letter to the Chairman of the Civil Service Commission dated 18 January
1983. As correctly maintained by the public respondent and the Solicitor
General, the position of Provincial Administrator is embraced within the Career
Service under Section 5 of P.D. No. 807 as evidenced by the qualifications
prescribed for it in the Manual of Position Descriptions.
Not being primarily confidential, appointment thereto must, inter
alia, be subject to the rule on nepotism.
2.Petitioner’s contention that since what he extended to his brother
is not an appointment, but a DESIGNATION, he is not covered by the prohibition.
Public respondent disagrees, for:"By legal contemplation, the prohibitive
mantle on nepotism would include designation, because what cannot be done
directly cannot be done indirectly."
We cannot accept petitioner's view. His specious and tenuous
distinction between appointment and designation is nothing more than either a
ploy ingeniously conceived to circumvent the rigid rule on nepotism or a
last-ditch maneuver to cushion the impact of its violation. The rule admits of
no distinction between appointment and designation. Designation is also defined
as "an appointment or assignment to a particular office"; and
"to designate" means "to indicate, select, appoint or set apart
for a purpose or duty."
It seems clear to Us that Section 49 of P.D. No. 807 does not suggest
that designation should be differentiated from appointment. Reading this
section with Section 25 of said decree, career service positions may be filled
up only by appointment, either permanent or temporary; hence a designation of a
person to fill it up because it is vacant, is necessarily included in the term
appointment, for it precisely accomplishes the same purpose. Indeed, as
correctly stated by public respondent, "what cannot be done directly
cannot be done indirectly."
3.Moreover, Section 37 of the decree expressly allows a private
citizen to directly file with the Civil Service Commission a complaint against
a government official or employee, in which case it may hear and decide the
case or may deputize any department or agency or official or group of officials
to conduct an investigation. The results of the investigation shall be
submitted to the Commission with recommendation as to the penalty to be imposed
or other action to be taken. This provision gives teeth to the constitutional
exhortation that a public office is a public trust and public officers and
employees must at all times be, inter alia, accountable to the people. An
ordinary citizen who brings to the attention of the appropriate office any act
or conduct of a government official or employee which betrays the public
interest deserves nothing less than the praises, support and encouragement of
society. The vigilance of the citizenry is vital in a democracy.
WHEREFORE, this petition is DENIED for lack of merit, and the
challenged Resolutions of the Civil Service Commission are AFFIRMED.
Costs against petitioner.
SO ORDERED.
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:
Sometime in the year 1991, 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. Attached to these appointment papers were photocopies of certificates
of eligibility of the teachers.
Director Gantungan U. Kamed noticed that the certificates of
eligibility were of doubtful authenticity. Upon verification of the records of
CSRO No. XII, it was found that said applications for civil service eligibility
under R.A. 6850 were disapproved. However, the certificates of eligibility they
submitted were genuine as their control number belonged to the batch issued to
CSRO No. XII by the CSC Central Office. But the records showed that these
certificates were never issued to anyone.
Upon finding a prima facie case, petitioner was formally charged with
dishonesty, grave misconduct and conduct prejudicial to the best interest of
the service.
Issues:
(1) whether the CSC had original jurisdiction over the administrative
cases against the public school teachers; and
(2) whether petitioner was accorded due process.
Decision:
For public respondent CSC, the Office of the Solicitor General
maintains that original jurisdiction over the present case is with the CSC
pursuant to the Constitution and P.D. 807 (Civil Service Law) which provide that
the civil service embraces every branch, agency, subdivision, and
instrumentality of the government, including government-owned or controlled
corporations whether performing governmental or proprietary function.
Clearly, petitioner falls under the category of “all other persons
performing supervisory and/or administrative functions in all schools, colleges
and universities operated by the government or its political subdivisions.”
Under Section 2 of R.A. 4670, the exclusions in the coverage of the
term “teachers” are limited to: (1) public school teachers in the professorial
staff of state colleges and universities; and (2) school nurses, school
physicians, school dentists, and other school employees under the category of
“medical and dental personnel”. Under the principle of ejusdem generis, general
words following an enumeration of persons or things, by words of a particular
and specific meaning, are not to be construed in their widest extent, but are
to be held as applying only to persons or things of the same kind or class as
those specifically mentioned. Too, the enumeration of persons excluded from the
coverage of the term “teachers” is restricted, limited and exclusive to the two
groups as abovementioned. Where the terms are expressly limited to certain
matters, it may not by interpretation or construction be extended to other
matters.Exclusio unios est inclusio alterius. Had Congress intended to exclude
an NFE Division Supervisor from the coverage of R.A. 4670, it could have easily
done so by clear and concise language.
Here what is crucial, in our view, is that the Civil Service
Commission had afforded petitioner sufficient opportunity to be heard and
defend himself against charges of participation in faking civil service
eligibilities of certain teachers for a fee. Not only did he answer the charges
before the CSC Regional Office but he participated in the hearings of the
charges against him to the extent that we are left with no doubt that his
participation in its proceedings was willful and voluntary.
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. In
our view, petitioner cannot argue that he has been deprived of due process
merely because no cross-examination took place. The rule is well established
that due process is satisfied when the parties are afforded fair and reasonable
opportunity to explain their side of the controversy or given opportunity to
move for a reconsideration of the action or ruling complained of. In the
present case, the record clearly shows that petitioner not only filed his
Counter-Affidavit during the preliminary investigation, and later his Motion to
Dismiss. He also filed a Motion for Reconsideration of the October 19, 1993
Order of the Commission. The essence of due process in administrative
proceedings is an opportunity to explain one’s side or an opportunity to seek
reconsideration of the action or ruling complained of.
WHEREFORE, there being no reversible error committed by the Court of
Appeals and the respondent officials of the CSC, the instant petition is hereby
DENIED. The Decision dated October 30, 1998 of the Court of Appeals in CA-G.R.
S.P. No. 46549 is AFFIRMED.
Costs against petitioner.
SO ORDERED.
EN BANC
[ G.R. NO.
81467, OCTOBER 27, 1989 ]
NARCISO Y. SANTIAGO, JR.,
PETITIONER, VS. CIVIL SERVICE COMMISSION AND LEONARDO A. JOSE, RESPONDENTS.
Facts:
Resolution No. 87-554 of the Civil Service Commission, dated 28
December 1987, revoking the promotional appointment of petitioner Narciso Y.
SANTIAGO, Jr., from Collector of Customs I to Collector of Customs III and
directing instead the appointment of private respondent, Leonardo A. JOSE, to
the same position, is sought to be reviewed and reversed herein.
November 18, 1986, then Customs Commissioner Wigberto E. Tanada
extended a permanent promotional appointment, as Customs Collector III, to
petitioner SANTIAGO, Jr. That appointment was approved by the Civil Service
Commission (CSC), National Capital Region Office. Prior thereto, SANTIAGO held
the position of Customs Collector I.
On 26 November 1986, respondent JOSE, a Customs Collector II, filed a
protest with the Merit Systems Promotion Board (the Board, for short) against
SANTIAGO's promotional appointment mainly on the ground that he was
next-in-rank to the position of Collector of Customs III.
Issue:
Whther or not the appointment of petitioner Narciso Y. SANTIAGO, Jr.,
from Collector of Customs I to Collector of Customs III is valid.
Decision:
We need only recall our previous ruling in Taduran vs. Civil Service
Commission stating that there is "no mandatory nor peremptory requirement
in the (Civil Service Law) that persons next-in-rank are entitled to preference
in appointment. What it does provide is that they would be among the first to
be considered for the vacancy, if qualified, and if the vacancy is not filled
by promotion, the same shall be filled by transfer or other modes of
appointment."
The power to appoint is a matter of discretion. The appointing power
has a wide latitude of choice as to who is best qualified for the position
(Ocampo vs. Subido). To apply the next-in-rank rule peremptorily would impose a
rigid formula on the appointing power contrary to the policy of the law that
among those qualified and eligible, the appointing authority is granted
discretion and prerogative of choice of the one he deems fit for appointment
(Pineda vs. Claudio).
True, the Commission is empowered to approve all appointments, whether
original or promotional, to positions in the civil service and disapprove those
where the appointees do not possess the appropriate eligibility or required
qualification (paragraph (h), Section 9, P.D. No. 807). However, consistent
with our ruling in Luego vs. CSC, "all the commission is actually allowed
to do is check whether or not the appointee possesses the appropriate civil
service eligibility or the required qualifications. If he does, his appointment
is approved; if not, it is disapproved. No other criterion is permitted by law
to be employed by the Commission when it acts on, or as the decree says,
"approves" or "disapproves" an appointment made by the
proper authorities. To be sure, it has no authority to revoke the said
appointment simply because it believed that the private respondent was better
qualified for that would have constituted an encroachment on the discretion
vested solely (in the appointing authority)."
All told, we fail to see any reason to disturb SANTIAGO's promotional
appointment. The minimum qualifications and the standard of merit and fitness
have been adequately satisfied as found by the appointing authority. The latter
has not been convincingly shown to have committed any grave abuse of
discretion.
Having arrived at the foregoing conclusion, we find no necessity to
delve into the other issues raised.
WHEREFORE, Resolution No. 87-554 of the Civil Service Commission is
SET ASIDE and petitioner's promotional appointment as Customs Collector Ill is
hereby UPHELD. The Temporary Restraining Order heretofore issued, enjoining
respondents from enforcing CSC Resolution No. 87-554, is hereby made permanent.
SO ORDERED.
SECOND DIVISION
[ G.R. NO. 164679, JULY 27, 2011 ]
OFFICE OF THE OMBUDSMAN,
PETITIONER, VS. ULDARICO P. ANDUTAN, JR., RESPONDENT.
Facts:
Through a
petition for review on certiorari,the petitioner Office of the Ombudsman seeks
the reversal of the decision of the Court of Appeals (CA), dated July 28, 2004,
in "Uldarico P. Andutan, Jr. v. Office of the Ombudsman and Fact Finding
and Intelligence Bureau (FFIB), etc.," docketed as CA-G.R. SP No. 68893.
The assailed decision annulled and set aside the decision of the Ombudsman
dated July 30, 2001, finding Uldarico P. Andutan, Jr. guilty of Gross Neglect
of Duty.
Andutan was formerly the Deputy Director of the One-Stop Shop Tax
Credit and Duty Drawback Center of the Department of Finance (DOF). On June 30,
1998, then Executive Secretary Ronaldo Zamora issued a Memorandum directing all
non-career officials or those occupying political positions to vacate their
positions effective July 1, 1998. On July 1, 1998, pursuant to the Memorandum,
Andutan resigned from the DOF.
On September 1, 1999, Andutan, together with Antonio P. Belicena, former
Undersecretary, DOF; Rowena P. Malonzo, Tax Specialist I, DOF; Benjamin O. Yao,
Chairman and Executive Officer, Steel Asia Manufacturing Corporation (Steel
Asia); Augustus S. Lapid, Vice-President, Steel Asia; Antonio M. Lorenzana,
President and Chief Operating Officer, Steel Asia; and Eulogio L. Reyes,
General Manager, Devmark Textiles Ind. Inc., was criminally charged by the Fact
Finding and Intelligence Bureau (FFIB) of the Ombudsman with Estafa through
Falsification of Public Documents, and violations of Section 3(a), (e) and (j)
of Republic Act No. (R.A.) 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act. [6] As government employees, Andutan, Belicena and Malonzo were
likewise administratively charged of Grave Misconduct, Dishonesty, Falsification
of Official Documents and Conduct Prejudicial to the Best Interest of the
Service.
The criminal and administrative charges arose from anomalies in the
illegal transfer of Tax Credit Certificates (TCCs) to Steel Asia.
Upon the respondents' failure to appear at the March 20, 2000 hearing,
the Ombudsman deemed the case submitted for resolution.
Issue:
1. Does Section 20(5) of R.A. 6770 prohibit the Ombudsman from
conducting an administrative investigation a year after the act was committed?
2. Does Andutan's resignation render moot the administrative case
filed against him?
3. Assuming that the administrative case is not moot, are the
Ombudsman's findings supported by substantial evidence?
Decision:
The issue of whether Section 20(5) of R.A. 6770 is mandatory or
discretionary has been settled by jurisprudence. In Office of the Ombudsman v.
De Sahagun, the Court, speaking through Justice Austria-Martinez, held:
Well-entrenched is the rule that administrative offenses do not prescribe.
InMelchor v. Gironella [G.R. No. 151138, February 16, 2005, 451 SCRA
476], the Court held that the period stated in Section 20(5) of R.A. No. 6770
does not refer to the prescription of the offense but to the discretion given
to the Ombudsman on whether it would investigate a particular administrative
offense. The use of the word "may" in the provision is construed as
permissive and operating to confer discretion. Where the words of a statute are
clear, plain and free from ambiguity, they must be given their literal meaning
and applied without attempted interpretation
However, the crux of the present controversy is not on the issue of
prescription, but on the issue of the Ombudsman's authority to institute an
administrative complaint against a government employee who had already
resigned. On this issue, we rule in Andutan's favor. Andutan's resignation
divests the Ombudsman of its right to institute an administrative complaint
against him.
Although the Ombudsman is not precluded by Section 20(5) of R.A. 6770
from conducting the investigation, the Ombudsman can no longer institute an
administrative case against Andutan because the latter was not a public servant
at the time the case was filed.
What is clear from the records is that Andutan was forced to resign
more than a year before the Ombudsman filed the administrative case against
him. Additionally, even if we were to accept the Ombudsman's position that
Andutan foresaw the filing of the case against him, his forced resignation
negates the claim that he tried to prevent the filing of the administrative
case.
1)The instant case is not moot and academic, despite the petitioner's
separation from government service.Even if the most severe of administrative
sanctions - that of separation from service - may no longer be imposed on the
petitioner, there are other penalties which may be imposed on her if she is
later found guilty of administrative offenses charged against her, namely, the
disqualification to hold any government office and the forfeiture of benefits.
2) The court agree with the Ombudsman that "fitness to serve in
public office is a question of transcendental [importance] " and that
"preserving the inviolability of public office" compels the state to
prevent the "re-entry to public service of persons who have demonstrated
their absolute lack of fitness to hold public office."
3) The State is not without remedy against Andutan or any public
official who committed violations while in office, but had already resigned or
retired there from. Under the "threefold liability rule," the
wrongful acts or omissions of a public officer may give rise to civil, criminal
and administrative liability. Even if the Ombudsman may no longer file an
administrative case against a public official who has already resigned or
retired, the Ombudsman may still file criminal and civil cases to vindicate
Andutan's alleged transgressions. If found guilty, Andutan will not only be
meted out the penalty of imprisonment, but also the penalties of perpetual
disqualification from office, and confiscation or forfeiture of any prohibited
interest.
WHEREFORE, we DENY the Office of the Ombudsman's petition for review
on certiorari, and AFFIRM the decision of the Court of Appeals in CA-G.R. SP
No. 68893, promulgated on July 28, 2004, which annulled and set aside the July
30, 2001 decision of the Office of the Ombudsman, finding Uldarico P. Andutan,
Jr. guilty of Gross Neglect of Duty.
No pronouncement as to costs.
SO ORDERED.
THIRD DIVISION
G.R. No. 164316
September 27, 2006
OFFICE OF THE OMBUDSMAN, petitioner,
vs.
GERTRUDES MADRIAGA and ANA MARIE
BERNARDO, respondents.
Facts:
The case at bar is a review for certiorari, for the six-month
suspension meted out by the Office of the Ombudsman to respondent Gertrudes
Madriaga (Gertrudes), school principal of San Juan Elementary School, San Juan,
Metro Manila, and her co-respondent Ana Marie Bernardo (Ana Marie), a classroom
teacher who was designated as Canteen Manager of the same school.
By letter-complaint of September 8, 2000 filed before the Office of
the Ombudsman, the San Juan School Club (the Club), through its president
Teresa Nuque (Teresa), charged respondents with violation of Section 1 of Rule
IV2 and Section 1 of Rule VI3 of the Rules Implementing Republic Act (R.A.) No.
6713 otherwise known as the Code of Conduct and Ethical Standards for Public
Officials and Employees.
Issue:
A. Whether or not the Office of the Ombudsman has the authority to
impose administrative sanctions over public officials; and
B. What is the nature of the functions of the Ombudsman as envisioned
by the Fundamental Law.
Decision:
We note that the proviso above qualifies the "order"
"to remove, suspend, demote, fine, censure, or prosecute" an officer
or employee – akin to the questioned issuances in the case at bar. That the
refusal, without just cause, of any officer to comply with such an order of the
Ombudsman to penalize an erring officer or employee is a ground for
disciplinary action, is a strong indication that the Ombudsman's
"recommendation" is not merely advisory in nature but is actually
mandatory within the bounds of law. This should not be interpreted as
usurpation by the Ombudsman of the authority of the head of office or any
officer concerned. It has long been settled that the power of the Ombudsman to
investigate and prosecute any illegal act or omission of any public official is
not an exclusive authority but a shared or concurrent authority in respect of
the offense charged. By stating therefore that the Ombudsman
"recommends" the action to be taken against an erring officer or
employee, the provisions in the Constitution and in RA 6770 intended that the
implementation of the order be coursed through the proper officer, which in
this case would be the head of the BID.
The word "recommend" in Sec. 15(3) must thus be read in
conjunction with the phrases "ensure compliance therewith" or
"enforce its disciplinary authority as provided in Section 21" of
R.A. No. 6770.
In fine, petitioner's authority to impose administrative penalty and
enforce compliance therewith is not merely recommendatory. It is mandatory
within the bounds of the law. The implementation of the order imposing the
penalty is, however, to be coursed through the proper officer.
WHEREFORE, the challenged Court of Appeals Decision of May 28, 2004 is
REVERSED and SET ASIDE.
Let the records of the case be remanded to the office of origin,
Office of the Ombudsman, for appropriate action consistent with the ruling in
this case.
SO ORDERED.
EN BANC
[ G.R. NO. 111812, MAY 31, 1995 ]
DIONISIO M. RABOR, PETITIONER,
VS. CIVIL SERVICE COMMISSION, RESPONDENT.
Facts:
Action for
certiorari to review the assailed Civil Service Resolution No. 92-594 dated 28
April 1992 dismissing the appeal of petitioner Rabor and affirming the action
of CSRO-XI Director Cawad dated 26 July 1991.
Petitioner Dionisio M. Rabor is a Utility Worker in the Office of the
Mayor, Davao City. He entered the government service as a Utility Worker on 10
April 1978 at the age of 55 years. Sometime in May 1991, Alma D. Pagatpatan, an
official in the Office of the Mayor of Davao City, advised Dionisio M. Rabor to
apply for retirement, considering that he had already reached the age of
sixty-eight (68) years and seven (7) months, with thirteen (13) years and one
(1) month of government service. Rabor responded to this advice by exhibiting a
"Certificate of Membership"issued by the Government Service Insurance
System ("GSIS") and dated 12 May 1988. At the bottom of this
"Certificate of Membership" is a typewritten statement of the
following tenor: "Service extended to comply 15 years service reqts."
Thereupon, the Davao City Government, through Ms. Pagatpatan, wrote to
the Regional Director of the Civil Service Commission, Region XI, Davao City
("CSRO-XI"), informing the latter of the foregoing and requesting
advice "as to what action [should] be taken on this matter."which
later then advised that the services of mr. rabor is non-extendible.
On 28 October 1992, Mr. Rabor sought reconsideration of Resolution No.
92-594 of the Civil Service Commission this time invoking the Decision of this
Court in Cena v. Civil Service Commission.
Petitioner prayed for an extension of service as utility worker in
order to complete the fifteen (15) years service requirement under P.D. No.
1146.
Issue:
Whether or not the petitioner’s claim falls within the ruling in the
Cena v. CSC
Decision:
In its Resolution No. 92-594, dated 28 April 1992, the Civil Service
Commission dismissed the appeal of Mr. Rabor and affirmed the action of
Director Cawad embodied in the latter's letter of 26 July 1991. This Resolution
stated in part:
In a letter dated 26 July 1991, Director Filemon B. Cawad of CSRO-XI
advised Davao City Mayor Rodrigo R. Duterte as follows:"Please be informed
that the extension of services of Mr. Rabor is contrary to M.C. No. 65 of the
Office of the President, the relevant portion of which is hereunder quoted:
'Officials and employees who have reached the compulsory retirement
age of 65 years shall not be retained in the service, except for extremely
meritorious reasons in which case the retention shall not exceed six (6)
months.'
IN VIEW WHEREFORE, please be advised that the services of Mr.
Dominador M. Rabor as Utility Worker in that office, is already non-
extendible."
Our conclusion is that the doctrine of Cena should be and is hereby
modified to this extent: that Civil Service Memorandum Circular No. 27, Series
of 1990, more specifically paragraph (1) thereof, is hereby declared valid and
effective. Section 11 (b) of P.D. No. 1146 must, accordingly, be read together with
Memorandum Circular No. 27. We reiterate, however, the holding in Cena that the
head of the government agency concerned is vested with discretionary authority
to allow or disallow extension of the service of an official or employee who
has reached sixty-five (65) years of age without completing fifteen (15) years
of government service; this discretion is, nevertheless, to be exercised
conformably with the provisions of Civil Service Memorandum Circular No. 27,
Series of 1990.
Applying now the results of our reexamination of Cena to the instant
case, we believe and so hold that Civil Service Resolution No. 92-594 dated 28
April 1992 dismissing the appeal of petitioner Rabor and affirming the action
of CSRO-XI Director Cawad dated 26 July 1991, must be upheld and affirmed.
ACCORDINGLY, for all the foregoing, the Petition for Certiorari is
hereby DISMISSED for lack of merit. No pronouncement as to costs.
SO ORDERED.
EN BANC
[ G.R. NO. 126557, MARCH 06, 2001 ]
RAMON ALBERT, PETITIONER, VS. CELSO D. GANGAN, IN HIS
CAPACITY AS CHAIRMAN, COMMISSION ON AUDIT, ROGELIO ESPIRITU, IN HIS CAPACITY AS
COMMISSIONER, COMMISSION ON AUDIT, SOFRONIO URSAL, IN HIS CAPACITY AS
COMMISSIONER, COMMISSION ON AUDIT, EMMA M. ESPINA, IN HER CAPACITY AS DIRECTOR,
COMMISSION ON AUDIT, AND LAKAMBINI RAZON, IN HER CAPACITY AS THEN RESIDENT
AUDITOR FOR NATIONAL HOME MORTGAGE FINANCE CORP., RESPONDENTS.
Facts:
This petition for certiorari
seeks to nullify Commission on Audit (COA) Decision No. 2700 dated February 19,
1993, finding petitioner, then President of the National Home Mortgage Finance
Corporation (NHMFC), liable for the amount of P36,796,711.55 covering the
payment of the loan proceeds for the lot acquired by the Alyansang
Maka-Maralitang Asosasyon at Kapatirang Organisasyon (AMAKO) which was
disallowed in audit.
The Housing and Urban Development Coordination Council (HUDCC) together
with the Presidential Commission for Urban Poor (PCUP), NHMFC, and Home
Insurance Guarantee Corporation (HIGC) formed an inter-agency committee to
conceptualize and prepare the guidelines and procedures for the Community
Mortgage Program (CMP),a sub-program of the Unified Home Lending Program
(UHLP). The CMP is an innovative scheme in mortgage financing where an
undivided tract of land may be acquired by several beneficiaries through the
concept of community ownership. It was adopted to assist residents of blighted
or depressed areas to initially own the lots they occupy, and, eventually, to
build a decent house thereon to the extent of their affordability within the
concept of low-cost-home financing and after due compensation to the landowner.
The beneficiaries of the financing shall then form or establish an association,
or cooperative, duly registered with appropriate governmental agencies and
accredited with the PCUP. Under the financing procedure of the CMP, an
application of an association for a loan is coursed through duly accredited
originators, such as the National Housing Authority (NHA), and Non-Government
Organizations (NGOs).
August 20, 1988, the NHMFC Board issued Resolution No. 419, Series of
1988, approved the CMP.
December 19, 1988, Carlos P. Doble, then Vice President of HIGC,
issued an appraisal policy for the CMP which was concurred in by the HIGC
President, Federico Gonzales, herein petitioner, NHMFC OIC/EVP, and HUDC
Teodoro Katigbak. On the same date, Doble likewise issued to HIGC Technical
Service Department personnel the Appraisal Policy for the CMP.
April 12, 1989, the NHMFC board issued Resolution No. 546, Series of
1989, approving the amended/expanded guidelines for CMP.
On April 4,1989, the Sapang Palay Community Development Foundation
Inc., (Foundation) applied for accreditation with the NHMFC as originator of
land and housing project through a Purchase Commitment Line. The application
consists of sixteen (16) project sites situated in different parts of the
country. Among these is the AMAKO Project which was submitted for accreditation
to the NHMFC by Nelson Concepcion, President of the Foundation. The AMAKO
project refers to seventy-three (73) hectares of land located at Sta. Catalina,
Angeles City, which was offered by Severino H. Gonzales, Jr. Construction, Co,
Inc. (SHGCCI), through its shareholder, Engineer Ceres Pajaron, to the members
of AMAKO. Mr. Concepcion who was also the concurrent head of the PCUP's Housing
and Settlement Division, delivered on September 7, 1989, to the CMP Unit - then
under Mortgage Takeout Department (MROD)-HMFC - the project documents of AMAKO
for pre-evaluation which were returned to the Foundation on September 22, 1989
by the CMP unit.
October 4, 1989, Mr. Concepcion submitted an application for Purchase
Commitment Line in the amount of P36,794,250.00, specifically for the AMAKO
project together with an Information Sheet of the Foundation, the AMAKO project
profile, and the Department of Agrarian Reform certification dated December 4,
1988. On the same day, Mr. Generozo Cruz, Foundation Vice President and PCUP
Director, redelivered the documents to the CMP unit to discuss the Foundation's
proposal on the AMAKO project.
On October 5, 1989, the Officer-in-charge of the Credit and Collection
Group, NHMFC, recommended to petitioner the grant of an additional line in
favor of Sapang Palay Community Development Foundation, Inc., in the total
amount of P36,8000,000.00 - approved by the NHMFC Credit Committee on October
13, 1989 - subject, however, to the approval of the NHMFC Board.
December 14, 1989, the NHMFC, upon the recommendation of the CMP Task
Force, together with the Certification of Mortgage Examinations, issued a
Letter of Guaranty in favor of SHGCCI.Thereafter, the disbursement voucher (No.
89F2-5732) was prepared by the CMP Task Force in favor of SHGCCI. Mr. Rogelio
Olaguer, head of the CMP Task Force, likewise inspected the project site and
assured petitioner that the project is above board and in accordance with the
NHMFC-CMP guidelines. With this assurance, petitioner approved the payment to
the SHGCCI. Thus, on January 4, 1990, the amount of P36,796,711.55 under
Philippine National Bank - Land Bank of the Philippines Check No. 362994, was
released to Engineer Severino A. Gonzales, Jr. of the SHGCCI.
Sometime in June 1990, petitioner instructed the Community Mortgage
Management Office (CMMO) to conduct a routine inspection of the AMAKO Project.
Upon verification, it was discovered that the AMAKO project was three (3)
months in arrears in their amortization. As a consequence, petitioner, sometime
in July 1990, tasked the Committee on Evaluation of Originating Institutions to
investigate the originators with respect to their compliance with corporate
circulars, other rules and regulations issued by NHMFC regarding its lending
programs. One of the originators investigated was the Foundation which was
instrumental in the granting of the loan to the AMAKO Project.
September 3, 1990, the COA Resident Auditor of NHMFC disallowed the
loan granted to the AMAKO Project for the following reasons: (a) non-submission
of documentary requirements/non-complying or defective documents as required
under NHMFC Corporate Circular No. CMP-001; and (b) irregular/excessive
expenditures per COA Circular No. 85-55A dated September 8, 1985. The Auditor
determined the following officers of NHMFC, as personally liable, viz.:
petitioner as President; Fermin T. Arzaga, OIC, Finance, Corpan & Computer
Services Group; Roger Olaguer, Head, CMP Task Force; Vivien Noble, Deputy Head,
CMP Task Force; Ernesto Salvador, Executive Asst. CMP Task Force; Cynthia O.
Alas, Div. Chief II, Budget and Irma Fuentes, COD, CMMO.
On October 19, 1990, petitioner requested for the lifting of the
disallowance on the loan grant to AMAKO which was denied on October 25, 1990.
Petitioner moved for a reconsideration which was elevated to the COA Corporate
Audit Office pursuant to Section 65 of PD 1445.
February 19, 1993, the COA rendered Decision No. 2700, finding
petitioner as among the persons liable for the amount representing the payment
of the loan proceeds obtained by AMAKO. COA disallowed the plan payment because
it found the payment irregular and an excessive expenditure, and held
petitioner primarily liable pursuant to Section 103 of P.D. 1445.
Petitioner's motion for reconsideration of the above-mentioned
decision was denied on August 29, 1996 per COA Decision No. 96-484.
Issue:
1.Whether or not aggrieved petitioner can be held personally liable
for the amount of P36,796,11.55 representing the loan proceeds to AMAKO.
2.Whether or not respondent COA committed a grave abuse of its
discretion when it held petitioner personally liable for the payment of the
loan proceeds.
Decision:
(We find the petition meritorious.)
Court finds the assailed decision failed to mention petitioner's
direct participation in the fraudulent scheme. It merely held that petitioner
be immediately and primarily held responsible for the disallowance, for the
simple reason that, as the approving officer, any transaction presented to him
for approval is subject to his discretion. His reliance on the supposed review
and evaluation done by his subordinates is also discretionary on his part.
The actions taken by petitioner involved the very functions he had to
discharge in the performance of official duties. He cannot, therefore, be held
civilly liable for such acts unless there is a clear showing of bad faith,
malice or gross negligence. In as much as no evidence was presented to show
that petitioner acted in bad faith and with gross negligence in the performance
of his official duty, he is presumed to have acted in the regular performance
of his official duty. Similarly, it is a basic tenet of due process that the
decision of a government agency must state the facts and the law on which the
decision is based. The COA decision merely stated conclusions of law. Facts and
circumstances, as well as the why's, the what's and the how's of the
disallowance, were patently missing, inaccurate or incomplete. The COA cannot
just perform its constitutional function of disallowing expenditures of
government funds at sheer discretion. There has to be factual basis why the
expenditure is alleged to be fraudulent or why was there a misrepresentation.
Liability depends upon the wrong committed and not solely by reason of being
the head of a government agency. The COA even mentioned the anti-graft law
which imputes liability for a grossly disadvantageous contract entered into by
a government functionary. But as to why and how the disbursement of funds in
this case was considered disadvantageous must be duly supported by findings of
facts.
Consequently, respondent COA committed a grave abuse of its discretion
when it held petitioner personally liable for the subject disallowance.
WHEREFORE, the assailed Decision and Resolution of the respondent
Commission on Audit are hereby REVERSED and SET ASIDE, insofar as they refer to
petitioner.
SO ORDERED.
EN BANC
G.R. NO. 157875, DECEMBER 19, 2006
DR. TERESITA L. SALVA,PRESIDENT OF THE PALAWAN STATE UNIVERSITY
(FORMERLY PALAWAN STATE COLLEGE), PETITIONER, VS. GUILLERMO N. CARAGUE, AS
CHAIRMAN, COMMISSION ON AUDIT, RAUL FLORES, AS COMMISSIONER, COMMISSION ON
AUDIT AND EMMANUEL M. DALMAN, IN HIS CAPACITY AS COMMISSIONER, RESPONDENTS
Facts:
The case at bar is a petition for Certiorari under Rule 65 of the
Rules of Court, claiming that the COA committed grave abuse of discretion
amounting to excess or lack of jurisdiction
Petitioner Dr. Teresita L. Salva, President of the Palawan State
University (formerly Palawan State College [PSC]), is being held personally
liable by the COA for the disallowance made on the construction of Phase II,
Multi-Purpose Building of the PSC in the amount of P274,726.38.
In 1992, the PSC and the Integrand Development Construction, Inc.
(IDCI) entered into a Construction Agreement for the construction of the PSC
Multi-Purpose Building (Phase II) for the price of P1,685,883.45. When the
COA-Technical Audit Specialist (COA-TAS) reviewed the contract, it found an
excess of P456,242.97, which was later reduced to P274,726.38. The excess was
attributed to the costs of items of mobilization/demobilization and earth fill
and compaction.
In COA Decision No. 95-211 dated March 28, 1995, the disallowance made
by the COA-TAS was affirmed, and petitioner, together with PSC Vice-President
Francisco M. Romantico and PSC Accountant Carolina S. Baloran, were held
jointly and severally liable for the amount of P274,726.38.
Issue:
Whether or not petitioner should be held personally liable for the
disallowed amount of P274,726.38.
Decision:
In the present case, the reason put forth by the COA in holding
petitioner liable was due to the diversion of the sources for filling materials
resulting in the use of additional equipment and expense. The COA found that
since it was petitioner who directly caused such diversion, then she should be
personally liable for the resulting additional expense.
Petitioner satisfactorily justified the incurrence of such additional
expense. As explained in her letter of March 9, 1993, the fencing, construction
of temporary access roadway for the entrance of heavy equipment and
construction of stockroom were included under Mobilization; filling materials
were taken from the area approximately 200 meters away from the project site instead
of buying from other sources; and the change in the source of filling materials
called for the utilization of additional various heavy equipment such as a
payloader, water truck, compactor, grader and dump truck. All these were done
after consultation and recommendation of the project engineer provided all the
fruit trees in the area are preserved and proper care is maintained during the
leveling. Soil tests were likewise conducted to ascertain that the area was a
good source of filling materials
In this light, it cannot be said that the additional expense incurred
for the construction were irregular or excessive, unnecessary or
unconscionable. It is evident that the additional expense was for the benefit
of the PSU, as it was spent for the construction of Phase II of the PSU
Multi-Purpose Building, and there is no indication that it was used for any
other nefarious endeavor. The additional expense was also within the Approved
agency Estimates. Further, there is no showing that petitioner was ill-motivated,
or that she had personally profited or sought to profit from the transactions,
or that the disbursements have been made for personal or selfish ends. Thus,
petitioner should not be held personally liable for the disallowances.
Given the foregoing, the Court finds it unnecessary to dwell on the
other issues raised in this case.
WHEREFORE, the petition is GRANTED. The Resolution of the Commission
on Audit dated March 18, 2003 issued in COA Decision No. 2003-063 is REVERSED
and SET ASIDE insofar only as herein petitioner Dr. Teresita L. Salva is
concerned. She is exonerated from liability.
No pronouncement as to costs.
FIRST DIVISION
G.R. No. 161098 September 13, 2007
OFFICE OF THE OMBUDSMAN,
Petitioner,vs.CELSO SANTIAGO, Respondent.
Facts:
For our resolution is the instant Petition for Review on Certiorari1
assailing the Decision2 dated June 18, 2003 and Resolution dated December 8,
2003 of the Court of Appeals in CA-G.R. SP No. 66744.
July 27, 2000, the City of Manila, through the City Budget Office,
released a calamity fund for Barangay 183, Zone 16, same city, in the amount of
P44,053.00. This was received by Barangay Chairman Celso Santiago, respondent
herein. On October 3, 2000, all barangay kagawad of Barangay 183, filed with
the Office of the Ombudsman, petitioner, an administrative complaint for
technical malversation, violation of the Anti-Graft and Corrupt Practices Act,
dishonesty, grave misconduct and conduct unbecoming of a public officer against
respondent, docketed as OMB-ADM-0-00-0828.
The complaint alleges that (a) respondent failed to utilize the
calamity fund for the purpose for which it was allocated; (b) he leased a
portion of the barangay sidewalk to Amity Food Corporation without the
conformity of the barangay kagawad; (c) Amity Food Corporation issued checks
payable to respondent, not in the name of the Barangay; (d) he did not open any
bank account for and in the name of Barangay 183, Zone 16; and (e) he collected
fees for the use of the barangay chapel without remitting any single centavo to
the barangay treasurer.
Issue:
Whether the Ombudsman has the power to dismiss erring government
officials or employees.
Decision:
In interpreting a statute, care should be given that every part
thereof be given effect. Hence, the use of the word "recommend" must
be read in conjunction with the words "ensure compliance therewith"
in order not to run counter to the intention of the framers of the Constitution
to give the Ombudsman full and complete disciplinary authority, with powers
that are not merely persuasive in character. In fact, Section 13(3), Article XI
is complemented by Section 15 of Republic Act No. 67709
Section 13. The Office of the Ombudsman shall have the following
powers, functions, and duties:
(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.
SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman
shall have the following powers, functions and duties:
(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. Considering that the refusal, without just cause, of any
officer to comply with an order of the Ombudsman to penalize an erring officer
or employee is a ground for disciplinary action, it follows that the
Ombudsman’s "recommendation" is not merely advisory but is actually
mandatory within the bounds of law.10
At any rate, the power of the Ombudsman to directly remove an erring
public official has been jurisprudentially settled. In Estarija v. Ranada,11 we
ruled:
The powers of the Ombudsman are not merely recommendatory. His office
was given teeth to render this constitutional body not merely functional but
also effective. Thus, we hold that under Republic Act No. 6770 and the 1987
Constitution, the Ombudsman has the constitutional power to directly remove
from government service an erring public official other than a member of
Congress and the Judiciary.
WHEREFORE, we GRANT the petition. The assailed Decision and Resolution
of the Court of Appeals in CA-G.R. SP No. 66744 are REVERSED. The Decision
dated May 22, 2001 of the Office of the Ombudsman is AFFIRMED.
SO ORDERED.
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