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CASE DIGEST NO. 1

Case title:                                

RENATO M. LAPINID, petitioner,

vs.
CIVIL SERVICE COMMISSION, PHILIPPINE PORTS AUTHORITY and JUANITO JUNSAY, respondents.

G.R. No. 96298, May 14, 1991

Facts:

      On October 1, 1988, the petitioner, Renato M. Lapinid was appointed by the Philippine Ports Authority (PPA) to the position of Terminal Supervisor at the Manila International Container Terminal. This appointment was protested on December 15, 1988, by private respondent Juanito Junsay, who reiterated his earlier representations with the Appeals Board of the PPA on May 9, 1988, for a review of the decision of the Placement Committee dated May 3, 1988. He contended that he should be designated terminal supervisor, or to any other comparable position, in view of his preferential right thereto. On June 26, 1989, complaining that the PPA had not acted on his protest, Junsay went to the Civil Service Commission and challenged Lapinid's appointment on the same grounds he had earlier raised before the PPA. The Commission then released a resolution stating that after a careful review of the records of the case, it finds that the protestants Junsay and Villegas have an edge over that of protestees Lapinid and Dulfo. It is also stated in the resolution that the former will be appointed as Terminal Supervisor (SG 18) vice the latter respectively who may be considered for appointment to any position commensurate and suitable to their qualifications.

      Upon learning of the resolution, Lapinid, who claimed he had not been informed of the appeal and had not been heard thereon, filed a motion for reconsideration which later was then denied. The PPA also filed its own motion for reconsideration but was then also denied. A second motion for reconsideration was filed, based on the re-appreciation of Lapinid's rating from 75% to 84%, was also then denied.

Issue/s:

Whether or not the Civil Service Commission is authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter.

Ruling:

No, the Civil Service Commission has no power of appointment except over its own personnel. Neither does it have the authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications. The determination of who among aspirants with the minimum statutory qualifications should be preferred belongs to the appointing authority and not the Civil Service Commission. It cannot disallow an appointment because it believes another person is better qualified and much less can it direct the appointment of its own choice.

Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide.

CASE DIGEST NO. 2

Case title:                       

CIVIL SERVICE COMMISSION, petitioner,

vs.
PASTOR B. TINAYA, respondents.

G.R. No. 154898, February 16, 2005

Facts:

·         On November 16, 1993, Pastor B. Tinaya, respondent, was issued a permanent appointment as municipal assessor of the Municipality of Tabontabon, Leyte by Municipal Mayor Priscilla R. Justimbaste.

·         The appointment was then later approved by the CSC Regional Office No VIII but only as temporary, effective for one (1) year from December 1, 1993 to November 30, 1994.

·         The appointment was made temporary due to respondent’s non-submission of his service record with respect to his three (3)-year work related experience prior to his employment as municipal assessor, as required by the CSC Revised Qualification Standards.

·         On the same day his appointment was approved, respondent took his oath and assumed the duties of his office.

·         Fifteen (15) days after the approval of his appointment, respondent married Caridad R. Justimbaste, daughter of Mayor Priscilla Justimbaste.

·         Meanwhile, Mayor Priscilla Justimbaste was on leave of absence from November 23, 1994 up to December 29, 1994. Vice-Mayor Rosario C. Luban was then the Acting Mayor.

·         On December 1, 1994, after the expiration of respondent’s temporary appointment, Acting Mayor Luban appointed him anew as municipal assessor effective that day. The appointment was permanent.

·         Initially, the CSC Regional Office No. VIII disapproved of the Tinaya’s new appointment. But upon appeal by mayor Priscilla Justimbaste, the CSC, in its Resolution approved Tinaya’s appointment as permanent.

·         On June 4, 1999, Tinaya requested Arturo Juanico, Officer-in-Charge of the municipality’s Human Resources Management Office (HRMO), to furnish him a copy of his service record but the request was not immediately acted upon since respondent’s 201 file was still to be retrieved from the Office of Mayor. This prompted respondent to report the matter to the CSC Regional Office No. VIII with a request to conduct an "on-the-spot physical audit" of the municipal employees’ 201 files.

·         The CSC’s Personnel Inspection and Audit Division then conducted an audit and found, among others, that the matter of the delay in the release of respondent’s service records has become moot since his request was already acted upon; and that his appointment as municipal assessor on December 1, 1994 was issued in violation of the law on nepotism and, therefore, should be recalled.

·         On the basis of the report, the CSC Regional Office No. VIII issued an Order recalling respondent’s appointment.

Issue/s:

Whether or not the Court of Appeals erred in holding that Tinaya’s original appointment as municipal assessor on November 16, 1993 is permanent.

Ruling:

Yes, Court of Appeals erred in holding that Tinaya’s original appointment as municipal assessor on November 16, 1993 is permanent. Under the Constitution, the Civil Service Commission is the central personnel agency of the government charged with the duty of determining questions of qualifications of merit and fitness of those appointed to the civil service. Under Section 9 (h) of the Civil Service Law, it is stated that the CSC has the power to:

 “Approve all appointments, whether original or promotional, to positions in the civil service, except those of presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, and disapprove those where the appointees do not possess the appropriate eligibility or required qualifications. xxx”

While the appointing authority has the discretion to choose whom to appoint, the choice is subject to the caveat that the appointee possesses the required qualifications.

To make an appointment to a civil service position fully effective, it must comply with all legal requirements. Thus, the law requires the appointment to be submitted to the CSC, which will ascertain, in the main, whether the proposed appointee is qualified to hold the position and whether the rules pertinent to the process of appointment were observed.

The appointing officer and the CSC acting together, though not concurrently but consecutively, make an appointment complete. In acting on the appointment, the CSC determines whether the appointee possesses the appropriate civil service eligibility or the required qualifications. If the appointee is qualified, the appointment must be approved; if not, it should be disapproved.

In this case, Tinaya’s original permanent appointment as municipal assessor was approved as temporary by petitioner CSC pending his submission of the required service record of his three (3)-year work experience in real property assessment or in any related field prior to his appointment, as required by the CSC Revised Qualification Standards. As found by CSC, it was only on December 1, 1994, after his temporary appointment expired on that day, that he was able to submit the required paper. Thus, upon its submission, Tinaya’s new appointment was made permanent.

CSC merely complied with the Constitutional and statutory mandate to determine whether respondent was qualified. And due to his failure to submit the required service record as proof of his qualification, petitioner did not err in approving his original appointment as temporary.

With respect to CSC’s recall of Tinaya’s new permanent appointment dated December 1, 1994 by reason of nepotism, the SC finds the same in order.

It is shown in the records 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. However, 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.

x x x."

Petitioner has the power to recall an appointment in violation of civil service law, rules and regulations. The Civil Service Commission is empowered to take appropriate action on all appointments and other personnel actions and that such power "includes the authority to recall an appointment initially approved in disregard of applicable provisions of the Civil Service law and regulations.

CASE DIGEST NO. 3

Case title:                                

CIVIL SERVICE COMMISSION, NATIONAL CAPITAL REGION, petitioner,

vs.
RANULFO P. ALBAO, respondents.

G.R. No. 155784, October 13, 2005

Facts:

      On September 1, 1998, the Office of the Vice President of the Republic of the Philippines issued an original and permanent appointment for the position of Executive Assistant IV to respondent Ranulfo P. Albao, who was then a contractual employee at said Office.

      In a letter dated September 28, 1998 addressed to the Director of the Civil Service Commission Field Office, Manila, the Office of the Vice President requested the retrieval of the said appointment paper but instead of heeding the request, petitioner CSC-NCR disapproved the appointment.

      The petitioner then later issued an Order holding that it has found, after a fact-finding investigation, that a prima facie case exists against respondent Albao for Dishonesty and Falsification of Official Documents, committed as follows:

1.    That in support of his permanent appointment as Executive Assistant IV, in the Office of the Vice-President, he stated in his Personal Data Sheet (PDS) that he took and passed the Assistant Electrical Engineer Examination held on October 15 and 16, 1988 with a rating of 71.64%;

2.    To support his claim, he submitted a Report of Rating showing he obtained a rating of 71.64% during the aforesaid Assistant Electrical Engineering Examination, all purportedly issued by the Professional Regulation Commission (PRC);

3.    That the PRC has informed CSC-NCR that the name Ranulfo P. Albao does not appear in the Table of Results and Masterlists of examinees of the Board of Electrical Engineering which contain the names of those who took the examination given in October, 1988; and

4.    That the examinee number appearing in his Report of Rating is assigned to one Bienvenido Aniño, Jr.

After filing his Answer, respondent Albao filed an "Urgent Motion to Resolve", contending that the Commission has no jurisdiction over the administrative case for the following reasons:

1.    The permanent appointment issued to him never became effective, even if it was later disapproved, because he never assumed such position in the first place. Besides, he is already out of government service since he resigned from his position effective at the closing hour of October 30, 1998.

2.    The Commission has no disciplinary jurisdiction over him as a private person as he is no longer with the civil service.

3.    While it is true that the Commission has original disciplinary jurisdiction over all its officials and employees and cases involving civil service examination anomalies or irregularities (Sec. 28, Omnibus Rules of 1991), as well as over sworn complaints directly filed before it against any other official or employee (Sec. 29, Omnibus Rules of 1991), the administrative case commenced against him did not fall under any of those instances.

4.    Since the Commission has no jurisdiction to institute the administrative case, it cannot delegate the same to the CSC-NCR.

      On a later date, the CSC rendered Resolution No. 001826, which has a portion which states that the CSC-NCR has jurisdiction over disciplinary cases against employees of agencies, local or national for offenses committed within its geographical area. The respondent then filed a motion for reconsideration, which was denied by the CSC in Resolution No. 010315.

Respondent filed a petition for review before the Court of Appeals alleging that the Civil Service Commission committed grave abuse of discretion in issuing the said Resolutions.

Issue/s:

Whether or not the Civil Service Commission has original jurisdiction to institute the instant administrative case against respondent Albao through its regional office, the CSC-NCR.

Ruling:

Yes, petitioner is declared vested with the power to institute the administrative proceedings against respondent for alleged falsification of eligibility.

The present case, partakes of an act by petitioner to protect the integrity of the civil service system, and does not fall under the provision on disciplinary actions under Sec. 47 which states that:

“SEC. 47. Disciplinary Jurisdiction.—(1) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days’ salary, demotion in rank or salary or transfer, removal or dismissal from office. . . .”

It falls under the provisions of Sec. 12, par. 11, on administrative cases instituted by it directly. Sec. 12, par. 11 states that:

:Section 12. Powers and Functions -- The Commission shall have the following powers and functions:

. . .

(11)Hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments, and review decisions and actions of its offices and of the agencies attached to it. . . .”

This is an integral part of its duty, authority and power to administer the civil service system and protect its integrity, as provided in Article IX-B, Sec. 3 of the Constitution, by removing from its list of eligibles those who falsified their qualifications. This is to be distinguished from ordinary proceedings intended to discipline a bona fide member of the system, for acts or omissions that constitute violations of the law or the rules of the service.

CASE DIGEST NO. 4

Case title:                                

NARCISO Y. SANTIAGO, JR. petitioner,

vs.
CIVIL SERVICE COMMISSION and LEONARDO A. JOSE, respondents.

G.R. No. 81467, October 27, 1989

Facts:

      On November 18, 1986, then Customs Commissioner Wigberto E. Tañada extended a permanent promotional appointment, as Customs Collector III, to petitioner Santiago, Jr., who then held the position of Customs Collector I. That appointment was approved by the Civil Service Commission (CSC), National Capital Region Office.

      On November 26, 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.

      The Board then referred the protest to Commissioner Tañada for appropriate action, wherein he upheld Santiago's promotional appointment on the grounds, among others, that:

(1) the next-in-rank rule is no longer mandatory;

(2) the protestee is competent and qualified for the position and such fact was not questioned by the protestant; and

(3) existing law and jurisprudence give wide latitude of discretion to the appointing authority provided there is no clear showing of grave abuse of discretion or fraud.

      Respondent Jose then later appealed to the Board (MSB Case No. 1410), which, then decided to revoke petitioner’s appointment and directed that respondent be appointed in his stead. The Board resolved to deny petitioner's Motion for Reconsideration for lack of merit.

      On 28 December 1987, respondent Commission affirmed the Board Resolutions in its own Resolution No. 87-554. It ruled that although both Santiago and Jose are qualified for the position of Customs Collector III, respondent Jose has far better qualifications. It added that the Commission is empowered to administer and enforce the merit system as mandated by the 1973 and 1987 Constitutions and to approve all appointments, whether original or promotional, to positions in the civil service, subject to specified exceptions, pursuant to paragraphs (a) and (h), Section 9 of the Civil Service Law.

Issue/s:

1) Whether or not there mandatory or peremptory requirement in the (Civil Service Law) that persons next-in-rank are entitled to preference in appointment.

2)  Whether or not the CSC is empowered to revoke the petitioner’s promotional appointment.

Ruling:

1)  No, 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.

      One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. As provided for in Section 4, CSC Resolution No. 83- 343:

Section 4. An employee who holds a next-in- rank position who is deemed the most competent and qualified, possesses an appropriate civil service eligibility, and meets the other conditions for promotion shall be promoted to the higher position when it becomes vacant.

However, the appointing authority may promote an employee who is not next-in-rank but who possesses superior qualifications and competence compared to a next-in-rank employee who merely meets the minimum requirements for the position.

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, L-28344, August 27, 1976, 72 SCRA 443). 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, L- 29661 May 13, 1969, 28 SCRA 34).

2)  No, although it is true that 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 the Supreme Court’s ruling in Luego vs. CSC (L-69137, 5 August 1986,143 SCRA 327), "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, the SC fails 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.

.

CASE DIGEST NO. 5

Case title:                                

JOSEPH H. REYES, petitioner,

vs.
COMMISSION ON AUDIT, respondents.

G.R. No. 125129, March 29, 1999

Facts:

      By Resolution No. 89-003, the TLRC Executive Committee created a Provident Fund the primary purpose of which was to augment the retirement benefits of the officers and employees of TLRC. The Provident Fund also provided additional benefits to its members, in accordance with the policies and guidelines approved by the Board of Trustees. The Fund's sources of capital were from contributions of each member consisting of 2% of his gross monthly salary and TLRC's or the government's counterpart share equivalent to 10% of the member's gross monthly salary, earnings of the fund and others.

      On June 3, 1993, Corporate Auditor Adelaida S. Flores suspended the transfer of funds from TLRC to the Provident Fund, as per Notice of Suspension. Auditor Flores held that under Par. 5.4 of Corporate Compensation Circular No. 10, Rules and Regulations, issued under R. A. 6758, fringe benefits were allowed provided that statutory authority covered such grant of benefits. In this case, there is no law authorizing the grant of fringe benefits to TLRC officers and employees. Furthermore, all Provident Funds are covered by R. A. 4537, to which TLRC may not qualify.

      The TLRC Provident Fund Board of Trustees then later issued a resolution, discontinuing the collection of contributions for the Fund from both the TLRC and the members. It also ordered the members' personal contributions collected from March 1, 1993 until September 15, 1993, refunded to them immediately. The Board then later issued another dissolving the Provident Fund and ordering the distribution of the personal and corporate shares to the members thereof, on or before the last day of October 1993.

      On December 2, 1993, Corporate Auditor Flores issued a notice, disallowing in audit the amount of P11,065,715.84, representing the government's share paid to the TLRC Provident Fund refunded to members, covering the period 1990 to 1991, including all amounts that may have been transferred to the Fund after 1991.

      The petitioner Joseph H. Reyes, who is a member of the TLRC Board of Trustees, appealed the disallowance to the Commission on Audit (COA). However on a later date, the COA denied the appeal. It ruled that the government's share in the Provident Fund must be reverted to the TLRC and not be given to the employees. It held that since the primary purpose of the Provident Fund was not realized or attained due to its discontinuance and dissolution, then the employees were not entitled to the government's share in the Fund.

      The petitioner later wrote to the COA seeking a reversal of its decision but was later denied.

Issue/s:

Whether or not the Commission on Audit committe a grave abuse of discretion in disallowing the distribution of the government share in the aborted TLRC Provident Fund to its members.

Ruling:

No, that the Commission on Audit did not commit a grave abuse of discretion in disallowing the distribution of the government share in the aborted TLRC Provident Fund to its members. As correctly pointed out by the COA in its decision, the government contributions were made on the condition that the same would be used to augment the retirement and other benefits of the TLRC employees. Since the purpose was not attained due to the question on the validity of the Fund, then the employees are not entitled to claim the government share disbursed as its counterpart contribution to the Fund. Otherwise, it would be tantamount to the use of public funds outside the specific purpose for which the funds were appropriated.

CASE DIGEST NO. 6

Case title:                                

HOME DEVELOPMENT MUTUAL FUND, petitioner,

vs.
COMMISSION ON AUDIT, respondents.

G.R. No. 142297, June 15, 2004

Facts:

·         Republic Act No. 6971, "An Act to Encourage Productivity and Maintain Industrial Peace by Providing Incentives to Both Labor and Capital," was approved on November 22, 1990, and took effect on December 9, 1990. Section 3 of said Act states:

Sec. 3. Coverage.-- This Act shall apply to all business enterprises with or without existing and duly recognized or certified labor organizations, including government-owned and controlled corporations performing proprietary functions. It shall cover all employees and workers including casual, regular, supervisory and managerial employees

·         On June 4, 1991, the Secretary of Labor and Employment and the Secretary of Finance promulgated the Rules Implementing Republic Act No. 6971. Rule II of said implementing rules provides:

Section 1. Coverage. These Rules shall apply to:

(a) All business enterprises with or without existing duly recognized or certified labor organizations, including government-owned and controlled corporations performing proprietary functions;

(b) All employees and workers including casual, regular, rank-and-file, supervisory and managerial employees.

·         On November 21, 1991, petitioner HDMF granted Productivity Incentive Bonus equivalent to one month salary plus allowance to all its personnel pursuant to Republic Act No. 6971, and its Implementing Rules despite the advice on August 26, 1991 of Undersecretary Salvador Enriquez of the Department of Budget and Management (DBM) to all government-owned and controlled corporations (GOCCs) and government financial institutions (GFIs) with original charters performing proprietary functions to defer payment of the productivity incentive bonus to their employees, pending the issuance of a definite ruling by the Office of the President on the matter.

·         On December 27, 1991, the Department of Labor and Employment and the Department of Finance issued the Supplemental Rules Implementing Republic Act No. 6971, which provides that paragraph (a) Section 1, Rule II of the Rules Implementing RA 6971, shall be amended to read as follows:

“(a) All business enterprises with or without existing duly certified labor organizations including government-owned and controlled corporations performing proprietary functions which are established solely for business or profit or gain and accordingly excluding those created, maintained or acquired in pursuance of a policy of the state, enunciated in the constitution or by law, and those whose officers and employees are covered by the Civil Service. (Emphasis supplied.)”

·         On November 29, 1996, the grant of productivity incentive bonus to the HDMF personnel was disallowed in audit under notice of disallowance. The disallowance was based on COA Decision No. 96-288, dated June 4, 1996, stating that R.A. No. 6971 does not apply to government-owned or controlled corporations or to government financial institutions with original charters performing proprietary functions, such as the HDMF.

·         In a letter-request, HDMF, through its President and Chief Executive Officer, Zorayda Amelia C. Alonzo, requested for the lifting of the disallowance. Alonzo argued that R.A. No. 6971 applies to the employees of HDMF since the coverage of the said law includes government-owned and controlled corporations performing proprietary functions, and the supplemental rules excluding it from coverage was issued after the HDMF had already granted the productivity incentive bonus to its employees.

·         The COA affirmed the audit disallowance in a later decision stating that it finds the HDMF’s argument, that the supplemental rules should not be given retroactive effect, untenable. It must be noted that the grant of the Productivity Incentive Bonus was made on November 21, 1991 or after receipt of the advice of the Department of Budget and Management Undersecretary dated August 26, 1991 to defer payment of Productivity Incentive Bonus to all GOCCs/GFIs with original charters performing proprietary functions, pending definite ruling of the Office of the President. Despite the said notice, management proceeded with the payment.

·         HDMF filed a motion for reconsideration that was denied by the Commission on Audit in Resolution No. 2000-086 dated March 7, 2000.

Issue/s:

Whether or not the Commission on Audit acted in excess of its jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction in affirming the audit disallowance.

Ruling:

No, Commission on Audit did not commit grave abuse of discretion amounting to lack of jurisdiction in affirming the audit disallowance.

Petitioner is a government-owned and controlled corporation performing proprietary functions with original charter or created by special law, specifically Presidential Decree (PD) No. 1752, amending PD No. 1530. As such, petitioner HDMF is covered by the Civil Service pursuant to Article IX, Section 2(1) of the 1987 Constitution, and, therefore, excluded from the coverage of Republic Act No. 6971.

Since Republic Act No. 6971 intended to cover only government-owned and controlled corporations incorporated under the general corporation law, the power of administrative officials to promulgate rules in the implementation of the statute is necessarily limited to what is intended and provided for in the legislative enactment. Hence, the Supplemental Rules clarified that government-owned and controlled corporations performing proprietary functions which are "created, maintained or acquired in pursuance of a policy of the state, enunciated in the constitution or by law, and those whose officers and employees are covered by the Civil Service" are excluded from the coverage of Republic Act No. 6971.

Therefore, even if petitioner HDMF granted the Productivity Incentive Bonus before the Supplemental Rules were issued clarifying that petitioner was excluded from the coverage of Republic Act No. 6971, the employees of HDMF did not acquire a vested right over said bonus because they were not entitled to it under Republic Act No. 6971.

Moreover, the DBM advised petitioner herein, HDMF, on August 26, 1991, to defer payment of the productivity incentive bonus to their employees, pending the issuance of a definite ruling by the Office of the President on the matter. Despite said advice, the Board of Trustees of HDMF opted to grant the said bonus on a voluntary basis as stated in its Resolution No. 91-549, Series of 1991. It expressed its "concern over the welfare of the officers and employees of the Fund rather than adhering to the stringent technicality of the law." The Board, therefore, was aware that possibly HDMF may not be covered by Republic Act No. 6971. It should have exercised prudence by awaiting the definite ruling on the coverage to prevent legal problems.

CASE DIGEST NO. 7

Case title:                                

ENCARNACION E. SANTIAGO, petitioner,

vs.
COMMISSION ON AUDIT and THE DIRECTOR OF THE COMMISSION ON AUDIT, REGIONAL OFFICE NO. V. respondents.

G. R. No. 146824, June 15, 2006

Facts:

      On June 16, 1998, COA State Auditors Erlinda B. del Rosario and Rodolfo T. Follero, assigned at the Provincial Auditor’s Office, Pili, Camarines Sur, examined the cash and accounts of petitioner municipal treasurer covering the period from June 1997 to June 1998. As a result of the examination, the auditors made these findings:

1. Municipal Treasurer Encarnacion E. Santiago was found short of her accountability totalingP3,580,378.80;

2. Rampant manipulation of books of account perpetrated by Municipal Treasurer Encarnacion E. Santiago and Municipal Accountant Designate Generoso V. Ortua were detected by the examining auditors during their audit.

3. Trust liabilities under General Fund totaling P3,439,868.07 were not remitted to the agencies concerned in violation of GSIS Act of 1997.

4. All vouchers covering cash advances were not certified by the Municipal Budget Officer as to the existence of appropriation, which is a violation of Sec. 344 of the Local Government Code of 1991.

5. Cash advances made by Claro G. Pitallano, Cashier II, totaling P5,031,746.57 were granted by means of cash transfer from Municipal Treasurer Encarnacion E. Santiago which is in gross violation of Section 4.1.6 of COA Circular No. 97-002 dated February 10, 1997.

6. Cash advances were drawn by Municipal Treasurer Encarnacion E. Santiago with no legal specific purpose. Additional cash advances were likewise drawn even if the previous cash advances given were not settled, nor proper accounting was made, which is in violation of Sec. 339 of the Local Government Code in relation to Sec. 4.1.1 and 4.1.2 of COA Circular No. 97-002 dated February 10, 1999.

7. Payments for recurring expenses exceeding P15,000 were paid by Municipal Treasurer Encarnacion E. Santiago out of her cash advances in violation of Section 4.3.2 of COA Circular No. 97-002 dated February 10, 1997.

8. Report of Collection and Disbursements together with the corresponding journals and supporting documents were not prepared and submitted to the auditor on the date required under Sections 8 and 9 of the Manual on the Certificate of Settlement and Balances

      Petitioner was informed about her cash shortage in a demand letter. On a later date, petitioner submitted her letter of explanation for the cash shortage with a notation that she will submit the liquidation documents on or before September 23, 1998.

In her Comment, respondent COA Director Linda N. Solite, Regional Office No. V, Legazpi City, stated that petitioner did not fulfill her promise to submit the liquidation documents by September 23, 1998. But petitioner wrote a letter to the Provincial Treasurer, Camarines Sur requesting that she be detailed at the said office "in view of the lack of confidence of the present administration with the undersigned."

Due to the cash shortage and the failure of petitioner to submit all the supporting documents enumerated in the aforementioned demand letter, State Auditors del Rosario and Follero informed petitioner through a another letter that she was relieved from her duties and responsibilities as municipal treasurer effective September 24, 1998 in accordance with paragraph 2, Section 348 of Republic Act No. 7160. The Municipal Mayor and Municipal Accountant were also informed of the fact.

A second demand letter was sent to petitioner Santiago reiterating her cash shortage and apprising her of additional credits to her accountability. A final demand was made on petitioner to submit immediately all supporting documents stated in the accompanying schedules and to submit within 72 hours a written explanation why said documents were not submitted within the reglementary period.

In a letter dated July 20, 1999, State Auditor del Rosario directed Municipal Mayor Marcel S. Pan of Goa, Camarines Sur to "withhold payment of the salary and other emoluments due Mrs. Encarnacion E. Santiago or so much thereof as may be necessary, effective immediately and to apply the said withheld amounts in full satisfaction of her x x x shortage of P3,580,378.80" pursuant to Section 37 of Presidential Decree (PD) No. 1445, otherwise known as the "Government Auditing Code of the Philippines," which provides:

Sec. 37. Retention of money for satisfaction of indebtedness to government. – When any person is indebted to any government agency, the Commission [on Audit] may direct the proper officer to withhold the payment of any money due such person or his estate to be applied in satisfaction of the indebtedness.

Due to the directive of State Auditor del Rosario, petitioner was not able to collect her salary for the period from October 1998 to July 1999. After five (5) checks in payment of her salary were issued, the Municipal Mayor of Goa, Camarines Sur, endorsed the checks and the proceeds thereof, in the total amount of P124,606.20, was used to pay petitioner’s cash shortage, which is evidenced by official receipts of the Republic of the Philippines.

In a letter dated January 7, 2000 to the COA Director of Regional Office No. V, Legazpi City, petitioner requested reconsideration of the directive to withhold payment of her salary and other emoluments. She asserted that there is no valid basis for the application of her salary, without her consent, to the unconfirmed accountability, and that there is no final judicial order that she incurred such accountability, citing as legal basis Villanueva v. Tantuico, Jr.

Issue/s:

Whether or not the salary and other emoluments of petitioner may be withheld by respondents and applied to her cash shortage determined merely in an audit examination.

Ruling:

Yes, respondent COA is authorized to withhold petitioner’s salary and other emoluments up to the amount of her alleged shortage, but not to apply the withheld amount to the alleged shortage for which her liability is still being litigated.

It is noted that the directive of State Auditor del Rosario to the Municipal Mayor of Goa, Camarines Sur to withhold the salary of petitioner is in accordance with the COA Guidelines to the Examiner/Auditor in case of a cash shortage contained in Chapter 3 of the COA Handbook on Cash Examination, thus:

SPECIFIC GUIDELINES FOR CASH SHORTAGE/OVERAGE

Cash Shortages

1. Should the examination disclose cash shortages, the examiner shall not immediately make any announcement, notice or report until all arithmetical and mathematical computations are rechecked and documents reviewed.

2. The examiner shall prepare the report on the shortage after completion of the examination when all amounts and computations have been reviewed and after the reconciliation of related accounts and the verifications of all transactions.

3. He/She shall issue a demand letter to the AO for the immediate restitution of the shortage (for sample refer to Appendix 10).

4. Within seventy-two (72) hours upon receipt of demand letter, the examiner shall obtain from the AO a written explanation of the shortage.

5. Upon failure by the AO to immediately restitute the amount, the examiner shall recommend to the agency head in writing for the immediate relief of the AO from his/her duties. The letter-recommendation should be duly acknowledged by the agency head or his/her authorized representative. The acknowledgement shall form part of the examiner’s working paper.

6. The examiner shall see to it that all cash and records pertaining to the account are adequately safeguarded.

7. He/She shall submit an interim or advance report to the appropriate COA official in case there will be a delay in the completion of the report.

8. He/She shall direct the proper officer to withhold the payment of any money due the AO, except retirement pay or gratuity due her/him, as soon as the cash shortage is ascertained and is not contested.¹³ Please refer to Appendix 11 for sample copy of the withholding order. The amount withheld shall be applied to the shortage pursuant to Section 73 (should be Section 37), PD 1445. The examiner shall report the ordering of the withholding to the COA Chairman immediately.

9. In the case of a local treasurer, the [examiner] shall seize the office and its contents and shall notify the COA and the local chief executive. He/She shall immediately take full possession of the office and its contents, close and render his/her accounts at the date of taking possession and temporarily continue the public business of the office. The auditor who takes possession of the office of the local treasurer shall ipso facto supersede the local treasurer until the officer involved is restored, or other provision has been lawfully made for filling the office. (Sec. 46, PD 1445)

10. The examiner shall submit his/her report to the RCD/CD. The latter shall review it and forward [it] to the RLAO/LAO. (The Report shall be submitted to RLAO/LAO for shortages and overages)

11. If the shortage is material, the examiner shall request thru the Chairman, the Department of Foreign Affairs, the National Bureau of Investigation, the Commission on Immigration and Deportation and the National Intelligence and Security Agency that no clearance for purposes of travel abroad should be issued to erring AO and that he/she be included in the hold order list unless cleared by COA.

Under Paragraph 8 of the aforequoted Guidelines, the examiner/auditor is authorized to direct the proper officer to withhold the payment of any money due the accountable officer, except retirement pay or gratuity due her/him, as soon as the cash shortage is ascertained and is not contested.

Respondent COA Regional Director Linda N. Solite stated in her Comment that petitioner Santiago never disputed the second and final demand letter dated November 23, 1998 informing her of her cash shortage. Hence, the directive of State Auditor del Rosario to withhold petitioner’s salary was in order.

The State Auditors’ finding of cash shortage against petitioner municipal treasurer, which has not been satisfactorily disputed is prima facie evidence against her. The prima facie evidence suffices for the withholding of petitioner’s salary, in order to safeguard the interest of the Government.

However, it must be stated that although State Auditor del Rosario properly directed the Municipal Mayor of Goa, Camarines Sur to withhold petitioner’s salary and other emoluments, she incorrectly directed that the same be applied or set off against petitioner’s cash shortage. As ruled in Villanueva, before set-off can take place under Section 624 of the Revised Administrative Code of 1919, as amended, now Section 21 of the Administrative Code of 1987, a person’s indebtedness to the government must be one that is admitted by him or pronounced by final judgment of a competent court. In this case, the indebtedness was not admitted by petitioner and a competent court has not yet pronounced final judgment thereon.

As a result, the amount of petitioner’s salary remitted to the local government treasurer as payment of petitioner’s cash shortage should be considered merely withheld until final resolution on her indebtedness. In the event that petitioner is found not liable for the cash shortage, the withheld salary and other emoluments will be released to her; otherwise, it will be applied in payment of her indebtedness.

CASE DIGEST NO. 8

Case title:           

                    

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.

G.R. No. 157875, December 19, 2006

Facts:

      Petitioner Dr. Teresita L. Salva, President of the Palawan State University (formerly Palawan State College [PSC]), is being held personally liable by the Commission on Audit (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 earthfill and compaction.

Petitioner contested the assessment made by the COA-TAS, arguing that the mobilization and demobilization was computed at P20,567.44 based at 2% Direct Costs per DPWH Order No. 3 but excluding the cost of providing temporary facilities such as bodega, perimeter fence, and access road, which were all included in the computation of the mobilization item by the agency; and the cost of earthfill and compaction was computed only at 8 working days, which is too short for a volume of 2,0334 cubic meters.

In a decision released by the COA, 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.

The COA further affirmed said disallowance in another decision (Decision No. 2000-273), with the modification that Romantico and Baloran were excused from any liability, while Engineers Norberto S. Dela Cruz and Lucy Janet Pasion, and the IDCI Manager, were included as persons liable for the amount. Petitioner sought reconsideration thereof but it was denied by the COA.

Issue/s:

Whether or not whether or not the Resolution of the Commission on Audit dated March 18, 2003 issued in COA Decision No. 2003-063 erred in holding that petitioner should be held personally liable for the disallowed amount of P274,726.38.

Ruling:

Yes, 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.

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

It should be noted that the disallowance fell under Mobilization and Demobilization, and Earthfill and Compaction expenses, as appearing in the Approved Agency Estimates (AAE). Under the AAE, the contract price for the Mobilization and Demobilization was at P85,000.00 as against the COA estimate of P20,576.44, while the Earthfill and Compaction was at P530,910.00 as against the COA estimate of P197,157.15. The COA computed the Mobilization/Demobilization at 2% of the estimated direct cost per DPWH Department Order No. 30 (January 30, 1991). On the other hand, COA estimated the Earthfill and Compaction cost at P77.60 per cubic meter, while the PSU estimated the same at P77.60. Thus, the resulting discrepancy in the costing made by the COA and the PSU.

The AAE was prepared by PSU Engineers Norberto S. dela Cruz and Lucy Janet R. Pasion. Petitioner's only participation therein was to approve the same. As in the case of Suarez v. Commission on Audit, petitioner had nothing to do with the preparation and the computation of the AAE. Therefore, she should not have been held liable for the amounts disallowed during the post-audit.

The fact that petitioner is the President of the PSU does not automatically make her the party ultimately liable in case of disallowance of expenses for questionable transactions of her agency. Petitioner cannot be held personally liable for the disallowance simply because she was the final approving authority of the transaction in question and that the officers/employees who processed the same were directly under her supervision.

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 ay 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,¹⁶ or that the disbursements have been made for personal or selfish ends.¹⁷ Thus, petitioner should not be held personally liable for the disallowances.

CASE DIGEST NO. 9

Case title:                                

OFFICE OF THE OMBUDSMAN, petitioner,
vs.
GERTRUDES MADRIAGA and ANA MARIE BERNARDO, respondents.

G.R. No. 164316, September 27, 2006

Facts:

      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 IV and Section 1 of Rule VI 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.

      After respondents had given their side of the complaint, Graft Investigation Officer Helen M. Acuña, by Decision of May 28, 2001, found respondents guilty of violation of Section 5(a) of R.A. No. 6713 reading:

SEC. 5. Duties of Public Officials and Employees. – In the performance of their duties, all public officials and employees are under obligation to:

(a) Act promptly on letters and requests. – All public officials and employees shall, within fifteen (15) working days from receipt thereof, respond to letters, telegrams or other means of communications sent by the public. The reply must contain the action taken on the request (Emphasis supplied),

and imposed upon them the penalty of reprimand.

      By Memorandum Order dated June 28, 2001, however, Graft Investigation Officer Julita Calderon "set aside" Helen Acuña's decision, the former finding that respondents were guilty also of conduct grossly prejudicial to the best interest of the service, and accordingly penalizing them with six months suspension.

      Respondents' motion for reconsideration and/or reinvestigation having been denied by Order of July 26, 2001, they elevated the case to the Court of Appeals via petition for certiorari.

Issue/s:

1) Whether or not the Office of the Ombudsman has the authority to impose administrative sanctions over public officials.

2)  What is the nature of the functions of the Ombudsman as envisioned by the Fundamental Law.

Ruling:

1)  Yes, the Office of the Ombudsman has the authority to impose administrative sanctions over public officials.

      In the recent case of Ledesma v. Court of Appeals, the Supreme Court, resolving in the negative the issue of whether the recommendation of the Ombudsman for the suspension of the therein petitioner, who was found administratively liable in connection with the extension of Temporary Resident Visas of two foreign nationals, was merely advisory on the Bureau of Immigration and Deportation where petitioner was the Chairman of the First Division of its Board of Special Inquiry, held:

x x x x

The provisions of RA 6770 support public respondents' theory. Section 15 is substantially the same as Section 13, Article XI of the Constitution which provides for the powers, functions and duties of the Ombudsman. We draw attention to subparagraph 3, to wit:

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 an 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)

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.

x x x x (Citations omitted; Emphasis partly in the original and partly supplied, italics in the original)

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

2)  The Constitution and R.A. No. 6770 (The Ombudsman Act of 1989) have conferred on the Office of the Ombudsman full disciplinary authority over public officials and employees including the power to enforce its duly-issued judgments. Jurisprudence has upheld such authority. Also under Section 21 of R.A. No. 6770, with the exception of impeachable officials, Members of Congress and the Judiciary, it has been given full administrative disciplinary jurisdiction over all public officials and employees who commit any kind of malfeasance, misfeasance or non-feasance.

      Article XI, Section 13 of the 1987 Constitution¹³ grants petitioner administrative disciplinary power to:

(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient, [and]

x x x x

(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, andrecommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.

x x x x (Emphasis supplied)

Section 15(3) of R.A. No. 6770 echoes the constitutional grant to petitioner of the power to "recommend" the imposition of penalty on erring public officials and employees and ensure compliance therewith.

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 21¹⁴ of this Act: Provided, that the refusal by an 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;

x x x x (Emphasis supplied)

CASE DIGEST NO. 10

Case title:                                

OFFICE OF THE OMBUDSMAN, petitioner,
vs.
CELSO SANTIAGO, respondents.

G.R. No. 161098, September 13, 2007

Facts:

      On 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, Rebecca B. Pangilinan, Mario B. Martin, Rolando H. Lopez and Alfredo M. Escaño, Sr., 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.

      It is alleged in the complaint 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.

      The respondent then filed a motion to dismiss the administrative complaint denying all the charges and contending that the complaint was filed to harass him. The Office of the Ombudsman later declared in a Decision dated May 22, 2001, that respondent is guilty of dishonesty, grave misconduct and conduct prejudicial to the best interest of the service and dismissed him from the service.

Respondent filed a motion for reconsideration and an urgent motion to hold in abeyance the implementation of the Decision, but both motions were denied by the Office of the Ombudsman in an Order dated July 24, 2001.

Issue/s:

Whether or not the Ombudsman has the power to dismiss erring government officials or employees.

Ruling:

Yes, the Ombudsman has the power to dismiss erring government officials or employees. In Ledesma v. Court of Appeals, the Supreme Court held:

Several reasons militate against a literal interpretation of the subject constitutional provision. Firstly, a cursory reading of Tapiador reveals that the main point of the case was the failure of the complainant therein to present substantial evidence to prove the charges of the administrative case. The statement that made reference to the power of the Ombudsman is, at best, merely an obiter dictum and, as it is unsupported by sufficient explanation, is susceptible to varying interpretations, as what precisely is before us in this case. Hence, it cannot be cited as a doctrinal declaration of this Court nor is it safe from judicial examination.

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. 6770 which reads:

“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; x x x”

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.

At any rate, the power of the Ombudsman to directly remove an erring public official has been jurisprudentially settled. In Estarija v. Ranada, 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. (Emphasis supplied).”