Cases on Public Officers (Poli Law Review)

METROPOLITAN MANILA G.R. Nos. 171947-48

DEVELOPMENT AUTHORITY,

DEPARTMENT OF ENVIRONMENT

AND NATURAL RESOURCES, Present:

DEPARTMENT OF EDUCATION,

CULTURE AND SPORTS,[1] PUNO, C.J.,

DEPARTMENT OF HEALTH, QUISUMBING,

DEPARTMENT OF AGRICULTURE, YNARES-SANTIAGO,

DEPARTMENT OF PUBLIC CARPIO,

WORKS AND HIGHWAYS, AUSTRIA-MARTINEZ,

DEPARTMENT OF BUDGET AND style="font-size:14.0pt"CORONA,

MANAGEMENT, PHILIPPINE CARPIO MORALES,

COAST GUARD, PHILIPPINE AZCUNA,

NATIONAL POLICE MARITIME TINGA,

GROUP, and DEPARTMENT OF CHICO-NAZARIO,

THE INTERIOR AND LOCAL VELASCO, JR.,

GOVERNMENT, NACHURA,

Petitioners, REYES,

LEONARDO-DE CASTRO, and

- versus - BRION, JJ.

CONCERNED RESIDENTS OF

MANILA BAY, represented and

joined by DIVINA V. ILAS,

SABINIANO ALBARRACIN,

MANUEL SANTOS, JR., DINAH

DELA PEÑA, PAUL DENNIS

QUINTERO, MA. VICTstyle="mso-bidi-font-weight:normal"ORIA

LLENOS, DONNA CALOZA,

FATIMA QUITAIN, VENICE

http://sc.judiciary.gov.ph/jurisprudence/2008/december2008/171947-48.htm#_ftn1

SEGARRA, FRITZIE TANGKIA,

SARAH JOELLE LINTAG,

style="mso-bidi-font-weight:normal"HANNIBAL AUGUSTUS BOBIS,

FELIMON SANTIAGUEL, and Promulgated:

JAIME AGUSTIN R. OPOSA,

Respondents. December 18, 2008

x-----------------------------------------------------------------------------------------x

D E C I S I O N

VELASCO, JR., J.:

The need to address environmental pollution, as a cause of climate change, has of late

gained the attention of the international community. Media have finally trained their

sights on the ill effects of pollution, the destruction of forests and other critical habitats,

oil spills, and the unabated improper disposal of garbage. And rightly so, for the

magnitude of environmental destruction is now on a scale few ever foresaw and the

wound no longer simply heals by itself.[2] But amidst hard evidence and clear signs of

a climate crisis that need bold action, the voice of cynicism, naysayers, and

procrastinators can still be heard.

This case turns on government agencies and their officers who, by the nature of their

respective offices or by direct statutory command, are tasked to protect and preserve, at

the first instance, our internal waters, rivers, shores, and seas polluted by human

activities. To most of these agencies and their official complement, the pollution menace

does not seem to carry the high national priority it deserves, if their track records are to

be the norm. Their cavalier attitude towards solving, if not mitigating, the environmental

pollution problem, is a sad commentary on bureaucratic efficiency and commitment.


At the core of the case is the Manila Bay, a place with a proud historic past, once

brimming with marine life and, for so many decades in the past, a spot for different

contact recreation activities, but now a dirty and slowly dying expanse mainly because

of the abject official indifference of people and institutions that could have otherwise

made a difference.

This case started when, on January 29, 1999, respondents Concerned Residents of

Manila Bay filed a complaint before the Regional Trial Court (RTC) in Imus, Cavite

against several government agencies, among them the petitioners, for the cleanup,

rehabilitation, and protection of the Manila Bay. Raffled to Branch 20 and docketed as

Civil Case No. 1851-99 of the RTC, the complaint alleged that the water quality of the

style="font-size:

14.0pt;line-height:150%"Manila style="font-size:14.0pt;

line-height:150%"Bay had fallen way below the allowable standards set by law,

specifically Presidential Decree No. (PD) 1152 or the Philippine Environment Code.

This environmental aberration, the complaint stated, stemmed from:

x x x [The] reckless, wholesale, accumulated and ongoing acts of omission or commission [of the defendants] resulting in the clear and present danger to public health and in the depletion and contamination of the marine life of Manila Bay, [for which reason] ALL defendants must be held jointly and/or solidarily liable and be collectively ordered to clean up Manila Bay and to restore its water quality to class B waters fit for swimming, skin-diving, and other forms of contact recreation.[3]

In their individual causes of action, respondents alleged that the continued neglect of

petitioners in abating the pollution of the style="font-size:14.0pt;

line-height:150%"Manila style="font-size:14.0pt;

line-height:150%"Bay constitutes a violation of, among others:


(1) Respondents’ constitutional right to life, health, and a balanced ecology;

(2) The Environment Code (PD 1152);

(3) The Pollution Control Law (PD 984);

(4) The Water Code (PD 1067);

(5) The Sanitation Code (PD 856);

(6) The Illegal Disposal of Wastes Decree (PD 825);

(7) The Marine Pollution Law (PD 979);

(8) Executive Order No. 192;

(9) The Toxic and Hazardous Wastes Law (Republic Act No. 6969);

(10) Civil Code provisions on nuisance and human relations;

(11) The Trust Doctrine and the Principle of Guardianship; and

(12) International Law

Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered to clean the

style="font-size:14.0pt;line-height:150%"Manila style="font-size:14.0pt;line-height:150%"Bay and

submit to the RTC a concerted concrete plan of action for the purpose.

The trial of the case started off with a hearing at the Manila Yacht Club followed by an

ocular inspection of the style="font-size:14.0pt;line-height:

150%"Manila style="font-size:14.0pt;line-height:150%"Bay. Renato T. Cruz, the Chief of the

Water Quality Management Section, Environmental Management Bureau, Department

of Environment and Natural Resources (DENR), testifying for petitioners, stated that

water samples collected from different beaches around the Manila Bay showed that the

amount of fecal coliform content ranged from 50,000 to 80,000 most probable number

(MPN)/ml when what DENR Administrative Order No. 34-90 prescribed as a safe level

for bathing and other forms of contact recreational activities, or the “SB” level, is one

not exceeding 200 MPN/100 ml.[4]


Rebecca de Vera, for Metropolitan Waterworks and Sewerage System (MWSS) and in

behalf of other petitioners, testified about the MWSS’ efforts to reduce pollution along

the style="font-size:14.0pt;line-height:150%"Manila style="font-size:14.0pt;line-height:150%"Bay

through the Manila Second Sewerage Project. For its part, the Philippine Ports Authority

(PPA) presented, as part of its evidence, its memorandum circulars on the study being

conducted on ship-generated waste treatment and disposal, and its Linis Dagat (Clean

the Ocean) project for the cleaning of wastes accumulated or washed to shore.

The RTC Ordered Petitioners to Clean Up and style="mso-bidi-font-weight:normal"Rehabilitate style="mso-bidi-font-weight:normal"Manila style="mso-bidi-font-

weight:normal"Bay

On style="font-size:14.0pt;line-height:150%"September 13, 2002, the RTC rendered a

Decision[5] in favor of respondents. The dispositive portion reads:

WHEREFORE, finding merit in the complaint, judgment is hereby rendered ordering the abovenamed defendant-government agencies, jointly and solidarily, to clean up and rehabilitate Manila Bay and restore its waters to SB classification to make it fit for swimming, skin-diving and other forms of contact recreation. To attain this, defendant-agencies, with defendant DENR as the lead agency, are directed, within six (6) months from receipt hereof, to act and perform their respective duties by devising a consolidated, coordinated and concerted scheme of action for the rehabilitation and restoration of the bay.

In particular:

Defendant MWSS is directed to install, operate and maintain adequate [sewerage] treatment facilities in strategic places under its jurisdiction and increase their capacities.

Defendant LWUA, to see to it that the water districts under its wings, provide, construct and operate sewage facilities for the proper disposal of waste.

Defendant DENR, which is the lead agency in cleaning up Manila Bay, to install, operate and maintain waste facilities to rid the bay of toxic and hazardous substances.

Defendant PPA, to prevent and also to treat the discharge not only of ship-generated wastes but


also of other solid and liquid wastes from docking vessels that contribute to the pollution of the bay.

Defendant MMDA, to establish, operate and maintain an adequate and appropriate sanitary landfill and/or adequate solid waste and liquid disposal as well as other alternative garbage disposal system such as re-use or recycling of wastes.

Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to revitalize the marine life in Manila Bay and restock its waters with indigenous fish and other aquatic animals.

Defendant DBM, to provide and set aside an adequate budget solely for the purpose of cleaning up and rehabilitation of Manila Bay.

Defendant DPWH, to remove and demolish structures and other nuisances that obstruct the free flow of waters to the bay. These nuisances discharge solid and liquid wastes which eventually end up in Manila Bay. As the construction and engineering arm of the government, DPWH is ordered to actively participate in removing debris, such as carcass of sunken vessels, and other non-biodegradable garbage in the bay.

Defendant DOH, to closely supervise and monitor the operations of septic and sludge companies and require them to have proper facilities for the treatment and disposal of fecal sludge and sewage coming from septic tanks.

Defendant DECS, to inculcate in the minds and hearts of the people through education the importance of preserving and protecting the environment.

Defendant Philippine Coast Guard and the PNP Maritime Group, to protect at all costs the Manila Bay from all forms of illegal fishing.

No pronouncement as to damages and costs.

SO ORDERED.

The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before

the Court of Appeals (CA) individual Notices of Appeal which were eventually

consolidated and docketed as CA-G.R. CV No. 76528.

On the other hand, the DENR, Department of Public Works and Highways (DPWH),

Metropolitan Manila Development Authority (MMDA), Philippine Coast Guard (PCG),

Philippine National Police (PNP) Maritime Group, and five other executive departments

and agencies filed directly with this Court a petition for review under Rule 45. The

Court, in a Resolution of style="font-size:14.0pt;line-height:150%"December 9, 2002, sent the

said petition to the CA for consolidation with the consolidated appeals of MWSS,

LWUA, and PPA, docketed as CA-G.R. SP No. 74944.

Petitioners, before the CA, were one in arguing in the main that the pertinent provisions

of the Environment Code (PD 1152) relate only to the cleaning of specific pollution

incidents and do not cover cleaning in general. And apart from raising concerns about

the lack of funds appropriated for cleaning purposes, petitioners also asserted that the

cleaning of the style="font-size:14.0pt;


line-height:150%"Bay is not a ministerial act which can be compelled by mandamus.

The CA Sustained the RTC

By a Decision[6] of style="font-size:14.0pt;

line-height:150%"September 28, 2005, the CA denied petitioners’ appeal and affirmed the

Decision of the RTC in toto, stressing that the trial court’s decision did not require

petitioners to do tasks outside of their usual basic functions under existing laws.[7]

Petitioners are now before this Court praying for the allowance of their Rule 45 petition

on the following ground and supporting arguments:

THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE PASSED UPON BY THE HONORABLE COURT, I.E., IT AFFIRMED THE TRIAL COURT’S DECISION DECLARING THAT SECTION 20 OF [PD] 1152 REQUIRES CONCERNED GOVERNMENT AGENCIES TO



REMOVE ALL POLLUTANTS SPILLED AND DISCHARGED IN THE WATER SUCH AS FECAL COLIFORMS.

ARGUMENTS

style="text-decoration:none"

I

[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO THE CLEANING OF SPECIFIC POLLUTION INCIDENTS AND [DO] NOT COVER CLEANING IN GENERAL

II

THE CLEANING OR REHABILITATION OF THE MANILA BAY IS NOT A MINISTERIAL ACT OF PETITIONERS THAT CAN BE COMPELLED BY MANDAMUS.

The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under the

headings, Upgrading of Water Quality and Clean-up Operations, envisage a cleanup in

general or are they limited only to the cleanup of specific pollution incidents? And

second, can petitioners be compelled by mandamus to clean up and rehabilitate the

style="font-size:14.0pt;line-height:150%"Manila style="font-size:14.0pt;line-height:150%"Bay?

On style="font-size:14.0pt;line-height:150%"August 12, 2008, the Court conducted and heard

the parties on oral arguments.

Our Ruling

We shall first dwell on the propriety of the issuance of mandamus under the premises.

The Cleaning or Rehabilitation of style="mso-bidi-font-weight:normal"Manila style="mso-bidi-font-weight:normal"Bay

Can be Compelled by Mandamus

Generally, the writ of mandamus lies to require the execution of a ministerial duty.

[8] A ministerial duty is one that “requires neither the exercise of official discretion nor

judgment.”[9] It connotes an act in which nothing is left to the discretion of the person

executing it. It is a “simple, definite duty arising under conditions admitted or proved to

exist and imposed by law.”[10] Mandamus is available to compel action, when refused,

on matters involving discretion, but not to direct the exercise of judgment or discretion

one way or the other.

Petitioners maintain that the MMDA’s duty to take measures and maintain adequate

solid waste and liquid disposal systems necessarily involves policy evaluation and the

exercise of judgment on the part of the agency concerned. They argue that the MMDA,

in carrying out its mandate, has to make decisions, including choosing where a landfill

should be located by undertaking feasibility studies and cost estimates, all of which

entail the exercise of discretion.

Respondents, on the other hand, counter that the statutory command is clear and that

petitioners’ duty to comply with and act according to the clear mandate of the law does

not require the exercise of discretion. According to respondents, petitioners, the MMDA

in particular, are without discretion, for example, to choose which bodies of water they

are to clean up, or which discharge or spill they are to contain. By the same token,

respondents maintain that petitioners are bereft of discretion on whether or not to

alleviate the problem of solid and liquid waste disposal; in other words, it is the

MMDA’s ministerial duty to attend to such services.

We agree with respondents.




First off, we wish to state that petitioners’ obligation to perform their duties as defined

by law, on one hand, and how they are to carry out such duties, on the other, are two

different concepts. While the implementation of the MMDA’s mandated tasks may entail

a decision-making process, the enforcement of the law or the very act of doing what the

law exacts to be done is ministerial in nature and may be compelled by mandamus. We

said so in Social Justice Society v. Atienza[11] in which the Court directed the City of

style="font-size:14.0pt;line-height:150%"Manila to enforce, as a matter of ministerial duty, its

Ordinance No. 8027 directing the three big local oil players to cease and desist from

operating their business in the so-called “Pandacan Terminals” within six months from

the effectivity of the ordinance. But to illustrate with respect to the instant case, the

MMDA’s duty to put up an adequate and appropriate sanitary landfill and solid waste

and liquid disposal as well as other alternative garbage disposal systems is ministerial,

its duty being a statutory imposition. The MMDA’s duty in this regard is spelled out in

Sec. 3(c) of Republic Act No. (RA) 7924 creating the MMDA. This section defines and

delineates the scope of the MMDA’s waste disposal services to include:

Solid waste disposal and management which include formulation and implementation of policies, standards, programs and projects for proper and sanitary waste disposal. It shall likewise include the establishment and operation of sanitary land fill and related facilities and the implementation of other alternative programs intended to reduce, reuse and recycle solid waste. (Emphasis added.)

The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste

Management Act (RA 9003) which prescribes the minimum criteria for the

establishment of sanitary landfills and Sec. 42 which provides the minimum operating

requirements that each site operator shall maintain in the operation of a sanitary landfill.

Complementing Sec. 41 are Secs. 36 and 37 of RA 9003,[12] enjoining the MMDA and

local government units, among others, after the effectivity of the law on February 15,

2001, from using and operating open dumps for solid waste and disallowing, five years

after such effectivity, the use of controlled dumps.



The MMDA’s duty in the area of solid waste disposal, as may be noted, is set forth not

only in the Environment Code (PD 1152) and RA 9003, but in its charter as well. This

duty of putting up a proper waste disposal system cannot be characterized as

discretionary, for, as earlier stated, discretion presupposes the power or right given by

law to public functionaries to act officially according to their judgment or conscience.

[13] A discretionary duty is one that “allows a person to exercise judgment and choose

to perform or not to perform.”[14] Any suggestion that the MMDA has the option

whether or not to perform its solid waste disposal-related duties ought to be dismissed

for want of legal basis.

A perusal of other petitioners’ respective charters or like enabling statutes and

pertinent laws would yield this conclusion: these government agencies are enjoined, as a

matter of statutory obligation, to perform certain functions relating directly or indirectly

to the cleanup, rehabilitation, protection, and preservation of the Manila Bay. They are

precluded from choosing not to perform these duties. Consider:

(1) The DENR, under Executive Order No. (EO) 192,[15] is the primary agency

responsible for the conservation, management, development, and proper use of the

country’s environment and natural resources. Sec. 19 of the Philippine Clean Water Act

of 2004 (RA 9275), on the other hand, designates the DENR as the primary government

agency responsible for its enforcement and implementation, more particularly over all

aspects of water quality management. On water pollution, the DENR, under the Act’s

Sec. 19(k), exercises jurisdiction “over all aspects of water pollution, determine[s] its

location, magnitude, extent, severity, causes and effects and other pertinent information

on pollution, and [takes] measures, using available methods and technologies, to prevent

and abate such pollution.”




The DENR, under RA 9275, is also tasked to prepare a National Water Quality

Status Report, an Integrated Water Quality Management Framework, and a 10-year

Water Quality Management Area Action Plan which is nationwide in scope covering the

style="font-size:14.0pt;line-height:150%"Manila style="font-size:14.0pt;line-height:150%"Bay and

adjoining areas. Sec. 19 of RA 9275 provides:

Sec. 19 Lead Agency.––The [DENR] shall be the primary government agency responsible for the implementation and enforcement of this Act x x x unless otherwise provided herein. As such, it shall have the following functions, powers and responsibilities:

a) Prepare a National Water Quality Status report within twenty-four (24) months from the effectivity of this Act: Provided, That the Department shall thereafter review or revise and publish annually, or as the need arises, said report;

b) Prepare an Integrated Water Quality Management Framework within twelve (12) months following the completion of the status report;

c) Prepare a ten (10) year Water Quality Management Area Action Plan within 12 months following the completion of the framework for each designated water management area. Such action plan shall be reviewed by the water quality management area governing board every five (5) years or as need arises.

The DENR has prepared the status report for the period 2001 to 2005 and is in the

process of completing the preparation of the Integrated Water Quality Management

Framework.[16] Within twelve (12) months thereafter, it has to submit a final Water

Quality Management Area Action Plan.[17] Again, like the MMDA, the DENR should

be made to accomplish the tasks assigned to it under RA 9275.

Parenthetically, during the oral arguments, the DENR Secretary manifested that the

DENR, with the assistance of and in partnership with various government agencies and

non-government organizations, has completed, as of December 2005, the final draft of a

comprehensive action plan with estimated budget and time frame, denominated as



Operation Plan for the Manila Bay Coastal Strategy, for the rehabilitation, restoration,

and rehabilitation of the Manila Bay.

The completion of the said action plan and even the implementation of some of its

phases should more than ever prod the concerned agencies to fast track what are

assigned them under existing laws.

(2) The MWSS, under Sec. 3 of RA 6234,[18] is vested with jurisdiction, supervision,

and control over all waterworks and sewerage systems in the territory comprising what

is now the cities of Metro Manila and several towns of the provinces of Rizal and

style="font-size:14.0pt;line-height:150%"Cavite, and charged with the duty:

(g) To construct, maintain, and operate such sanitary sewerages as may be necessary for the proper sanitation and other uses of the cities and towns comprising the System; x x x

(3) The LWUA under PD 198 has the power of supervision and control over local water

districts. It can prescribe the minimum standards and regulations for the operations of

these districts and shall monitor and evaluate local water standards. The LWUA can

direct these districts to construct, operate, and furnish facilities and services for the

collection, treatment, and disposal of sewerage, waste, and storm water. Additionally,

under RA 9275, the LWUA, as attached agency of the DPWH, is tasked with providing

sewerage and sanitation facilities, inclusive of the setting up of efficient and safe

collection, treatment, and sewage disposal system in the different parts of the country.

[19] In relation to the instant petition, the LWUA is mandated to provide sewerage and

sanitation facilities in Laguna, style="font-size:14.0pt;line-height:150%;color:black;mso-bidi-

font-weight:

bold"Cavite, Bulacan, Pampanga, and style="font-size:14.0pt;line-height:150%;

color:black;mso-bidi-font-weight:bold"Bataan to prevent pollution in the style="font-



size:14.0pt;line-height:150%;color:black;mso-bidi-font-weight:

bold"Manila style="font-size:14.0pt;line-height:150%;color:black;mso-bidi-font-weight:

bold"Bay.

(4) The Department of Agriculture (DA), pursuant to the Administrative Code of

1987 (EO 292),[20] is designated as the agency tasked to promulgate and enforce all

laws and issuances respecting the conservation and proper utilization of agricultural and

fishery resources. Furthermore, the DA, under the Philippine Fisheries Code of 1998

(RA 8550), is, in coordination with local government units (LGUs) and other concerned

sectors, in charge of establishing a monitoring, control, and surveillance system to

ensure that fisheries and aquatic resources in Philippine waters are judiciously utilized

and managed on a sustainable basis.[21] Likewise under RA 9275, the DA is charged

with coordinating with the PCG and DENR for the enforcement of water quality

standards in marine waters.[22] More specifically, its Bureau of Fisheries and Aquatic

Resources (BFAR) under Sec. 22(c) of RA 9275 shall primarily be responsible for the

prevention and control of water pollution for the development, management, and

conservation of the fisheries and aquatic resources.

(5) The DPWH, as the engineering and construction arm of the national

government, is tasked under EO 292[23] to provide integrated planning, design, and

construction services for, among others, flood control and water resource development

systems in accordance with national development objectives and approved government

plans and specifications.

In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to

perform metro-wide services relating to “flood control and sewerage management which

include the formulation and implementation of policies, standards, programs and

projects for an integrated flood control, drainage and sewerage system.”





On style="font-size:14.0pt;

line-height:150%"July 9, 2002, a Memorandum of Agreement was entered into between

the DPWH and MMDA, whereby MMDA was made the agency primarily responsible

for flood control in Metro Manila. For the rest of the country, DPWH shall remain as

the implementing agency for flood control services. The mandate of the MMDA and

DPWH on flood control and drainage services shall include the removal of structures,

constructions, and encroachments built along rivers, waterways, and esteros (drainages)

in violation of RA 7279, PD 1067, and other pertinent laws.

(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast Guard Law

of 1974, and Sec. 6 of PD 979,[24] or the Marine Pollution Decree of 1976, shall have

the primary responsibility of enforcing laws, rules, and regulations governing marine

pollution within the territorial waters of the style="font-size:14.0pt;line-

height:150%"Philippines. It shall promulgate its own rules and regulations in accordance

with the national rules and policies set by the National Pollution Control Commission

upon consultation with the latter for the effective implementation and enforcement of

PD 979. It shall, under Sec. 4 of the law, apprehend violators who:

a. discharge, dump x x x harmful substances from or out of any ship, vessel, barge, or any other floating craft, or other man-made structures at sea, by any method, means or manner, into or upon the territorial and inland navigable waters of the Philippines;

b. throw, discharge or deposit, dump, or cause, suffer or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft or vessel of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state into tributary of any navigable water from which the same shall float or be washed into such navigable water; and

c. deposit x x x material of any kind in any place on the bank of any navigable water or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable


water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed or increase the level of pollution of such water.

(7) When RA 6975 or the Department of the Interior and Local Government (DILG) Act

of 1990 was signed into law on style="font-size:14.0pt;line-height:150%"December 13, 1990,

the PNP Maritime Group was tasked to “perform all police functions over the Philippine

territorial waters and rivers.” Under Sec. 86, RA 6975, the police functions of the PCG

shall be taken over by the PNP when the latter acquires the capability to perform such

functions. Since the PNP Maritime Group has not yet attained the capability to assume

and perform the police functions of PCG over marine pollution, the PCG and PNP

Maritime Group shall coordinate with regard to the enforcement of laws, rules, and

regulations governing marine pollution within the territorial waters of the style="font-

size:14.0pt;line-height:150%"Philippines. This was made clear in Sec. 124, RA 8550 or the

Philippine Fisheries Code of 1998, in which both the PCG and PNP Maritime Group

were authorized to enforce said law and other fishery laws, rules, and regulations.[25]

(8) In accordance with Sec. 2 of EO 513, the PPA is mandated “to establish, develop,

regulate, manage and operate a rationalized national port system in support of trade and

national development.”[26] Moreover, Sec. 6-c of EO 513 states that the PPA has police

authority within the

ports administered by it as may be necessary to carry out its powers and functions and attain its purposes and objectives, without prejudice to the exercise of the functions of the Bureau of Customs and other law enforcement bodies within the area. Such police authority shall include the following:

x x x x

b) To regulate the entry to, exit from, and movement within the port, of persons and vehicles, as well as movement within the port of watercraft.[27]




Lastly, as a member of the International Marine Organization and a signatory to the

International Convention for the Prevention of Pollution from Ships, as amended by

MARPOL 73/78,[28] the style="font-size:14.0pt;

line-height:150%"Philippines, through the PPA, must ensure the provision of adequate

reception facilities at ports and terminals for the reception of sewage from the ships

docking in Philippine ports. Thus, the PPA is tasked to adopt such measures as are

necessary to prevent the discharge and dumping of solid and liquid wastes and other

ship-generated wastes into the style="font-size:14.0pt;line-height:150%"Manila style="font-

size:14.0pt;line-height:150%"Bay waters from vessels docked at ports and apprehend the

violators. When the vessels are not docked at ports but within Philippine territorial

waters, it is the PCG and PNP Maritime Group that have jurisdiction over said vessels.

(9) The MMDA, as earlier indicated, is duty-bound to put up and maintain

adequate sanitary landfill and solid waste and liquid disposal system as well as other

alternative garbage disposal systems. It is primarily responsible for the implementation

and enforcement of the provisions of RA 9003, which would necessary include its penal

provisions, within its area of jurisdiction.[29]

Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that are

frequently violated are dumping of waste matters in public places, such as roads, canals

or esteros, open burning of solid waste, squatting in open dumps and landfills, open

dumping, burying of biodegradable or non- biodegradable materials in flood-prone

areas, establishment or operation of open dumps as enjoined in RA 9003, and operation

of waste management facilities without an environmental compliance certificate.

Under Sec. 28 of the Urban Development and Housing Act of 1992 (RA 7279),

eviction or demolition may be allowed “when persons or entities occupy danger areas



such as esteros, railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and

other public places such as sidewalks, roads, parks and playgrounds.” The MMDA, as

lead agency, in coordination with the DPWH, LGUs, and concerned agencies, can

dismantle and remove all structures, constructions, and other encroachments built in

breach of RA 7279 and other pertinent laws along the rivers, waterways, and esteros in

Metro Manila. With respect to rivers, waterways, and esteros in Bulacan, Bataan,

Pampanga, Cavite, and Laguna that discharge wastewater directly or eventually into the

Manila Bay, the DILG shall direct the concerned LGUs to implement the demolition and

removal of such structures, constructions, and other encroachments built in violation of

RA 7279 and other applicable laws in coordination with the DPWH and concerned

agencies.

(10) The Department of Health (DOH), under Article 76 of PD 1067 (the Water Code),

is tasked to promulgate rules and regulations for the establishment of waste disposal

areas that affect the source of a water supply or a reservoir for domestic or municipal

use. And under Sec. 8 of RA 9275, the DOH, in coordination with the DENR, DPWH,

and other concerned agencies, shall formulate guidelines and standards for the

collection, treatment, and disposal of sewage and the establishment and operation of a

centralized sewage treatment system. In areas not considered as highly urbanized cities,

septage or a mix sewerage-septage management system shall be employed.

In accordance with Sec. 72[30] of PD 856, the Code of Sanitation of the style="font-

size:14.0pt;line-height:150%"Philippines, and Sec. 5.1.1[31] of Chapter XVII of its

implementing rules, the DOH is also ordered to ensure the regulation and monitoring of

the proper disposal of wastes by private sludge companies through the strict enforcement

of the requirement to obtain an environmental sanitation clearance of sludge collection

treatment and disposal before these companies are issued their environmental sanitation



permit.

(11) The Department of Education (DepEd), under the Philippine Environment Code

(PD 1152), is mandated to integrate subjects on environmental education in its school

curricula at all levels.[32] Under Sec. 118 of RA 8550, the DepEd, in collaboration with

the DA, Commission on Higher Education, and Philippine Information Agency, shall

launch and pursue a nationwide educational campaign to promote the development,

management, conservation, and proper use of the environment. Under the Ecological

Solid Waste Management Act (RA 9003), on the other hand, it is directed to strengthen

the integration of environmental concerns in school curricula at all levels, with an

emphasis on waste management principles.[33]

(12) The Department of Budget and Management (DBM) is tasked under Sec. 2,

Title XVII of the Administrative Code of 1987 to ensure the efficient and sound

utilization of government funds and revenues so as to effectively achieve the country’s

development objectives.[34]

One of the country’s development objectives is enshrined in RA 9275 or the

Philippine Clean Water Act of 2004. This law stresses that the State shall pursue a policy

of economic growth in a manner consistent with the protection, preservation, and revival

of the quality of our fresh, brackish, and marine waters. It also provides that it is the

policy of the government, among others, to streamline processes and procedures in the

prevention, control, and abatement of pollution mechanisms for the protection of water

resources; to promote environmental strategies and use of appropriate economic

instruments and of control mechanisms for the protection of water resources; to

formulate a holistic national program of water quality management that recognizes that

issues related to this management cannot be separated from concerns about water




sources and ecological protection, water supply, public health, and quality of life; and to

provide a comprehensive management program for water pollution focusing on pollution

prevention.

Thus, the DBM shall then endeavor to provide an adequate budget to attain the

noble objectives of RA 9275 in line with the country’s development objectives.

All told, the aforementioned enabling laws and issuances are in themselves clear,

categorical, and complete as to what are the obligations and mandate of each

agency/petitioner under the law. We need not belabor the issue that their tasks include

the cleanup of the style="font-size:14.0pt;line-height:150%"Manila style="font-size:14.0pt;line-

height:150%"Bay.

Now, as to the crux of the petition. Do Secs. 17 and 20 of the Environment Code

encompass the cleanup of water pollution in general, not just specific pollution

incidents?

Secs. 17 and 20 of the Environment Code

Include Cleaning in General

The disputed sections are quoted as follows:

Section 17. Upgrading of Water Quality.––Where the quality of water has deteriorated to a degree where its state will adversely affect its best usage, the government agencies concerned shall take such measures as may be necessary to upgrade the quality of such water to meet the prescribed water quality standards.

Section 20. Clean-up Operations.––It shall be the responsibility of the polluter to contain, remove and

clean-up water pollution incidents at his own expense. In case of his failure to do so, the government agencies concerned shall undertake containment, removal and clean-up operations and expenses incurred in said operations shall be charged against the persons and/or entities responsible for such pollution.

When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the subject, Cleanup

Operations, amended the counterpart provision (Sec. 20) of the Environment Code (PD

1152). Sec. 17 of PD 1152 continues, however, to be operational.

The amendatory Sec. 16 of RA 9275 reads:

SEC. 16. Cleanup Operations.––Notwithstanding the provisions of Sections 15 and 26 hereof, any person who causes pollution in or pollutes water bodies in excess of the applicable and prevailing standards shall be responsible to contain, remove and clean up any pollution incident at his own expense to the extent that the same water bodies have been rendered unfit for utilization and beneficial use: Provided, That in the event emergency cleanup operations are necessary and the polluter fails to immediately undertake the same, the [DENR] in coordination with other government agencies concerned, shall undertake containment, removal and cleanup operations. Expenses incurred in said operations shall be reimbursed by the persons found to have caused such pollution under proper administrative determination x x x. Reimbursements of the cost incurred shall be made to the Water Quality Management Fund or to such other funds where said disbursements were sourced.

As may be noted, the amendment to Sec. 20 of the Environment Code is more

apparent than real since the amendment, insofar as it is relevant to this case, merely

consists in the designation of the DENR as lead agency in the cleanup operations.

Petitioners contend at every turn that Secs. 17 and 20 of the Environment Code concern

themselves only with the matter of cleaning up in specific pollution incidents, as

opposed to cleanup in general. They aver that the twin provisions would have to be read

alongside the succeeding Sec. 62(g) and (h), which defines the terms “cleanup

operations” and “accidental spills,” as follows:

g. Clean-up Operations [refer] to activities conducted in removing the pollutants discharged or spilled in water to restore it to pre-spill condition.

h. Accidental Spills [refer] to spills of oil or other hazardous substances in water that result from accidents such as collisions and groundings.

Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely direct the

government agencies concerned to undertake containment, removal, and cleaning

operations of a specific polluted portion or portions of the body of water concerned.

They maintain that the application of said Sec. 20 is limited only to “water pollution

incidents,” which are situations that presuppose the occurrence of specific, isolated

pollution events requiring the corresponding containment, removal, and cleaning

operations. Pushing the point further, they argue that the aforequoted Sec. 62(g) requires

“cleanup operations” to restore the body of water to pre-spill condition, which means

that there must have been a specific incident of either intentional or accidental spillage

of oil or other hazardous substances, as mentioned in Sec. 62(h).

As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g) as

delimiting the application of Sec. 20 to the containment, removal, and cleanup

operations for accidental spills only. Contrary to petitioners’ posture, respondents assert

that Sec. 62(g), in fact, even expanded the coverage of Sec. 20. Respondents explain

that without its Sec. 62(g), PD 1152 may have indeed covered only pollution

accumulating from the day-to-day operations of businesses around the style="font-

size:14.0pt;line-height:150%"Manila style="font-size:14.0pt;line-height:150%"Bay and other

sources of pollution that slowly accumulated in the bay. Respondents, however,

emphasize that Sec. 62(g), far from being a delimiting provision, in fact even enlarged

the operational scope of Sec. 20, by including accidental spills as among the water

pollution incidents contemplated in Sec. 17 in relation to Sec. 20 of PD 1152.

To respondents, petitioners’ parochial view on environmental issues, coupled with their

narrow reading of their respective mandated roles, has contributed to the worsening

water quality of the style="font-size:14.0pt;line-height:

150%"Manila style="font-size:14.0pt;line-height:150%"Bay. Assuming, respondents assert,

that petitioners are correct in saying that the cleanup coverage of Sec. 20 of PD 1152 is

constricted by the definition of the phrase “cleanup operations” embodied in Sec. 62(g),

Sec. 17 is not hobbled by such limiting definition. As pointed out, the phrases “cleanup

operations” and “accidental spills” do not appear in said Sec. 17, not even in the chapter

where said section is found.

Respondents are correct. For one thing, said Sec. 17 does not in any way state that the

government agencies concerned ought to confine themselves to the containment,

removal, and cleaning operations when a specific pollution incident occurs. On the

contrary, Sec. 17 requires them to act even in the absence of a specific pollution

incident, as long as water quality “has deteriorated to a degree where its state will

adversely affect its best usage.” This section, to stress, commands concerned

government agencies, when appropriate, “to take such measures as may be necessary to

meet the prescribed water quality standards.” In fine, the underlying duty to upgrade the

quality of water is not conditional on the occurrence of any pollution incident.

For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that it

is properly applicable to a specific situation in which the pollution is caused by polluters

who fail to clean up the mess they left behind. In such instance, the concerned

government agencies shall undertake the cleanup work for the polluters’ account.

Petitioners’ assertion, that they have to perform cleanup operations in the style="font-

size:14.0pt;line-height:150%"Manila style="font-size:14.0pt;line-height:150%"Bay only when

there is a water pollution incident and the erring polluters do not undertake the

containment, removal, and cleanup operations, is quite off mark. As earlier discussed,

the complementary Sec. 17 of the Environment Code comes into play and the specific

duties of the agencies to clean up come in even if there are no pollution incidents staring

at them. Petitioners, thus, cannot plausibly invoke and hide behind Sec. 20 of PD 1152

or Sec. 16 of RA 9275 on the pretext that their cleanup mandate depends on the

happening of a specific pollution incident. In this regard, what the CA said with respect

to the impasse over Secs. 17 and 20 of PD 1152 is at once valid as it is practical. The

appellate court wrote: “PD 1152 aims to introduce a comprehensive program of

environmental protection and management. This is better served by making Secs. 17 &

20 of general application rather than limiting them to specific pollution incidents.”[35]

Granting arguendo that petitioners’ position thus described vis-à-vis the implementation

of Sec. 20 is correct, they seem to have overlooked the fact that the pollution of the

style="font-size:14.0pt;line-height:150%"Manila style="font-size:14.0pt;line-height:150%"Bay is of

such magnitude and scope that it is well-nigh impossible to draw the line between a

specific and a general pollution incident. And such impossibility extends to pinpointing

with reasonable certainty who the polluters are. We note that Sec. 20 of PD 1152

mentions “water pollution incidents” which may be caused by polluters in the waters of

the style="font-size:14.0pt;line-height:150%"Manila style="font-size:14.0pt;line-height:150%"Bay

itself or by polluters in adjoining lands and in water bodies or waterways that empty into

the bay. Sec. 16 of RA 9275, on the other hand, specifically adverts to “any person who

causes pollution in or pollutes water bodies,” which may refer to an individual or an

establishment that pollutes the land mass near the style="font-size:14.0pt;line-

height:150%"Manila style="font-size:14.0pt;line-height:150%"Bay or the waterways, such that

the contaminants eventually end up in the bay. In this situation, the water pollution


incidents are so numerous and involve nameless and faceless polluters that they can

validly be categorized as beyond the specific pollution incident level.

Not to be ignored of course is the reality that the government agencies concerned are so

undermanned that it would be almost impossible to apprehend the numerous polluters of

the style="font-size:14.0pt;line-height:150%"Manila style="font-size:14.0pt;line-height:150%"Bay.

It may perhaps not be amiss to say that the apprehension, if any, of the style="font-

size:14.0pt;line-height:150%"Manila style="font-size:14.0pt;line-height:150%"Bay polluters has

been few and far between. Hence, practically nobody has been required to contain,

remove, or clean up a given water pollution incident. In this kind of setting, it behooves

the Government to step in and undertake cleanup operations. Thus, Sec. 16 of RA 9275,

previously Sec. 20 of PD 1152, covers for all intents and purposes a general cleanup

situation.

The cleanup and/or restoration of the style="font-size:14.0pt;line-height:150%"Manila

style="font-size:14.0pt;line-height:150%"Bay is only an aspect and the initial stage of the

long-term solution. The preservation of the water quality of the bay after the

rehabilitation process is as important as the cleaning phase. It is imperative then that the

wastes and contaminants found in the rivers, inland bays, and other bodies of water be

stopped from reaching the style="font-size:14.0pt;line-height:150%"Manila style="font-

size:14.0pt;line-height:150%"Bay. Otherwise, any cleanup effort would just be a futile,

cosmetic exercise, for, in no time at all, the style="font-size:14.0pt;line-height:150%"Manila

style="font-size:14.0pt;line-height:150%"Bay water quality would again deteriorate below the

ideal minimum standards set by PD 1152, RA 9275, and other relevant laws. It thus

behooves the Court to put the heads of the petitioner-department-agencies and the

bureaus and offices under them on continuing notice about, and to enjoin them to

perform, their mandates and duties towards cleaning up the style="font-size:14.0pt;line-

height:150%"Manila style="font-size:14.0pt;line-height:150%"Bay and preserving the quality of

its water to the ideal level. Under what other judicial discipline describes as “continuing

mandamus,”[36] the Court may, under extraordinary circumstances, issue directives with

the end in view of ensuring that its decision would not be set to naught by administrative

inaction or indifference. In style="font-size:14.0pt;line-height:150%"India, the doctrine of

continuing mandamus was used to enforce directives of the court to clean up the length

of the style="font-size:14.0pt;line-height:150%"Ganges style="font-size:14.0pt;line-

height:150%"River from industrial and municipal pollution.[37]

The Court can take judicial notice of the presence of shanties and other

unauthorized structures which do not have septic tanks along the Pasig-Marikina-San

Juan Rivers, the National Capital Region (NCR) (Parañaque-Zapote, Las Piñas) Rivers,

the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycuayan-Marilao-Obando

(Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De

Bay, and other minor rivers and connecting waterways, river banks, and esteros which

discharge their waters, with all the accompanying filth, dirt, and garbage, into the major

rivers and eventually the Manila Bay. If there is one factor responsible for the pollution

of the major river systems and the style="font-size:14.0pt;line-height:150%"Manila style="font-

size:14.0pt;line-height:150%"Bay, these unauthorized structures would be on top of the list.

And if the issue of illegal or unauthorized structures is not seriously addressed with

sustained resolve, then practically all efforts to cleanse these important bodies of water

would be for naught. The DENR Secretary said as much.[38]

Giving urgent dimension to the necessity of removing these illegal structures is Art.

51 of PD 1067 or the Water Code,[39] which prohibits the building of structures within a

given length along banks of rivers and other waterways. Art. 51 reads:





The banks of rivers and streams and the shores of the seas and lakes throughout their entire length and within a zone of three (3) meters in urban areas, twenty (20) meters in agricultural areas and forty (40) meters in forest areas, along their margins, are subject to the easement of public use in the interest of recreation, navigation, floatage, fishing and salvage. No person shall be allowed to stay in this zone longer than what is necessary for recreation, navigation, floatage, fishing or salvage or to build structures of any kind. (Emphasis added.)

Judicial notice may likewise be taken of factories and other industrial

establishments standing along or near the banks of the style="font-size:14.0pt;line-

height:150%"Pasig style="font-size:14.0pt;line-height:150%"River, other major rivers, and

connecting waterways. But while they may not be treated as unauthorized constructions,

some of these establishments undoubtedly contribute to the pollution of the style="font-

size:14.0pt;line-height:150%"Pasig style="font-size:14.0pt;line-height:150%"River and

waterways. The DILG and the concerned LGUs, have, accordingly, the duty to see to it

that non-complying industrial establishments set up, within a reasonable period, the

necessary waste water treatment facilities and infrastructure to prevent their industrial

discharge, including their sewage waters, from flowing into the style="font-size:14.0pt;line-

height:150%"Pasig style="font-size:14.0pt;line-height:150%"River, other major rivers, and

connecting waterways. After such period, non-complying establishments shall be shut

down or asked to transfer their operations.

At this juncture, and if only to dramatize the urgency of the need for petitioners-

agencies to comply with their statutory tasks, we cite the Asian Development Bank-

commissioned study on the garbage problem in Metro Manila, the results of which are

embodied in the The Garbage Book. As there reported, the garbage crisis in the

metropolitan area is as alarming as it is shocking. Some highlights of the report:

1. As early as 2003, three land-filled dumpsites in Metro Manila - the Payatas, Catmon and Rodriquez dumpsites - generate an alarming quantity of lead and leachate or liquid run-off. Leachate are toxic liquids that flow along the surface and seep into the earth and poison the surface and groundwater that are used for drinking, aquatic life, and the environment.

2. The high level of fecal coliform confirms the presence of a large amount of human waste in the dump sites and surrounding areas, which is presumably generated by households that lack alternatives to sanitation. To say that Manila Bay needs rehabilitation is an understatement.

3. Most of the deadly leachate, lead and other dangerous contaminants and possibly strains of pathogens seeps untreated into ground water and runs into the Marikina and Pasig River systems and Manila Bay.[40]

Given the above perspective, sufficient sanitary landfills should now more than ever be

established as prescribed by the Ecological Solid Waste Management Act (RA 9003).

Particular note should be taken of the blatant violations by some LGUs and possibly the

MMDA of Sec. 37, reproduced below:

Sec. 37. Prohibition against the Use of Open Dumps for Solid Waste.––No open dumps shall be established and operated, nor any practice or disposal of solid waste by any person, including LGUs which [constitute] the use of open dumps for solid waste, be allowed after the effectivity of this Act: Provided, further that no controlled dumps shall be allowed (5) years following the effectivity of this Act. (Emphasis added.)

RA 9003 took effect on style="font-size:14.0pt;line-height:150%"February 15, 2001 and the

adverted grace period of five (5) years which ended on style="font-size:14.0pt;line-

height:150%"February 21, 2006 has come and gone, but no single sanitary landfill which

strictly complies with the prescribed standards under RA 9003 has yet been set up.

In addition, there are rampant and repeated violations of Sec. 48 of RA 9003, like

littering, dumping of waste matters in roads, canals, esteros, and other public places,

operation of open dumps, open burning of solid waste, and the like. Some sludge

companies which do not have proper disposal facilities simply discharge sludge into the

Metro Manila sewerage system that ends up in the style="font-size:14.0pt;line-

height:150%"Manila style="font-size:14.0pt;line-height:150%"Bay. Equally unabated are

violations of Sec. 27 of RA 9275, which enjoins the pollution of water bodies,


groundwater pollution, disposal of infectious wastes from vessels, and unauthorized

transport or dumping into sea waters of sewage or solid waste and of Secs. 4 and 102 of

RA 8550 which proscribes the introduction by human or machine of substances to the

aquatic environment including “dumping/disposal of waste and other marine litters,

discharge of petroleum or residual products of petroleum of carbonaceous

materials/substances [and other] radioactive, noxious or harmful liquid, gaseous or solid

substances, from any water, land or air transport or other human-made structure.”

In the light of the ongoing environmental degradation, the Court wishes to emphasize

the extreme necessity for all concerned executive departments and agencies to

immediately act and discharge their respective official duties and obligations. Indeed,

time is of the essence; hence, there is a need to set timetables for the performance and

completion of the tasks, some of them as defined for them by law and the nature of their

respective offices and mandates.

The importance of the style="font-size:14.0pt;line-height:150%"Manila style="font-

size:14.0pt;line-height:150%"Bay as a sea resource, playground, and as a historical landmark

cannot be over-emphasized. It is not yet too late in the day to restore the style="font-size:


line-height:150%"Bay to its former splendor and bring back the plants and sea life that

once thrived in its blue waters. But the tasks ahead, daunting as they may be, could only

be accomplished if those mandated, with the help and cooperation of all civic-minded

individuals, would put their minds to these tasks and take responsibility. This means that

the State, through petitioners, has to take the lead in the preservation and protection of

the style="font-size:14.0pt;line-height:

150%"Manila style="font-size:14.0pt;line-height:150%"Bay.

The era of delays, procrastination, and ad hoc measures is over. Petitioners must

transcend their limitations, real or imaginary, and buckle down to work before the

problem at hand becomes unmanageable. Thus, we must reiterate that different

government agencies and instrumentalities cannot shirk from their mandates; they must

perform their basic functions in cleaning up and rehabilitating the style="font-size:


line-height:150%"Bay. We are disturbed by petitioners’ hiding behind two untenable

claims: (1) that there ought to be a specific pollution incident before they are required to

act; and (2) that the cleanup of the bay is a discretionary duty.

RA 9003 is a sweeping piece of legislation enacted to radically transform and improve

waste management. It implements Sec. 16, Art. II of the 1987 Constitution, which

explicitly provides that the State shall protect and advance the right of the people to a

balanced and healthful ecology in accord with the rhythm and harmony of nature.

So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced and

healthful ecology need not even be written in the Constitution for it is assumed, like

other civil and political rights guaranteed in the Bill of Rights, to exist from the

inception of mankind and it is an issue of transcendental importance with

intergenerational implications.[41] Even assuming the absence of a categorical legal

provision specifically prodding petitioners to clean up the bay, they and the men and

women representing them cannot escape their obligation to future generations of

Filipinos to keep the waters of the style="font-size:14.0pt;


line-height:150%"Bay clean and clear as humanly as possible. Anything less would be a

betrayal of the trust reposed in them.


WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of

the CA in CA-G.R. CV No. 76528 and SP No. 74944 and the September 13, 2002

Decision of the RTC in Civil Case No. 1851-99 are AFFIRMED but with

MODIFICATIONS in view of subsequent developments or supervening events in the

case. The fallo of the RTC Decision shall now read:

WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-government agencies to clean up, rehabilitate, and preserve Manila Bay, and restore and maintain its waters to SB level (Class B sea waters per Water Classification Tables under DENR Administrative Order No. 34 [1990]) to make them fit for swimming, skin-diving, and other forms of contact recreation.

In particular:

(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency

responsible for the conservation, management, development, and proper use of the

country’s environment and natural resources, and Sec. 19 of RA 9275, designating the

DENR as the primary government agency responsible for its enforcement and

implementation, the DENR is directed to fully implement its Operational Plan for the

Manila Bay Coastal Strategy for the rehabilitation, restoration, and conservation of the

Manila Bay at the earliest possible time. It is ordered to call regular coordination

meetings with concerned government departments and agencies to ensure the successful

implementation of the aforesaid plan of action in accordance with its indicated

completion schedules.

(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987

and Sec. 25 of the Local Government Code of 1991,[42] the DILG, in exercising the

President’s power of general supervision and its duty to promulgate guidelines in

establishing waste management programs under Sec. 43 of the Philippine Environment

Code (PD 1152), shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite, Bulacan,


Pampanga, and Bataan to inspect all factories, commercial establishments, and private

homes along the banks of the major river systems in their respective areas of

jurisdiction, such as but not limited to the Pasig-Marikina-San Juan Rivers, the NCR

(Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers,

the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus

(Cavite) River, the Laguna De Bay, and other minor rivers and waterways that

eventually discharge water into the Manila Bay; and the lands abutting the bay, to

determine whether they have wastewater treatment facilities or hygienic septic tanks as

prescribed by existing laws, ordinances, and rules and regulations. If none be found,

these LGUs shall be ordered to require non-complying establishments and homes to set

up said facilities or septic tanks within a reasonable time to prevent industrial wastes,

sewage water, and human wastes from flowing into these rivers, waterways, esteros, and

the Manila Bay, under pain of closure or imposition of fines and other sanctions.

(3) As mandated by Sec. 8 of RA 9275,[43] the MWSS is directed to provide,

install, operate, and maintain the necessary adequate waste water treatment facilities in

Metro Manila, Rizal, and Cavite where needed at the earliest possible time.

(4) Pursuant to RA 9275,[44] the LWUA, through the local water districts and in

coordination with the DENR, is ordered to provide, install, operate, and maintain

sewerage and sanitation facilities and the efficient and safe collection, treatment, and

disposal of sewage in the provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan

where needed at the earliest possible time.

(5) Pursuant to Sec. 65 of RA 8550,[45] the DA, through the BFAR, is ordered to

improve and restore the marine life of the style="font-size:14.0pt;line-height:150%"Manila

style="font-size:14.0pt;line-height:150%"Bay. It is also directed to assist the LGUs in Metro




Manila, Rizal, style="font-size:14.0pt;line-height:

150%"Cavite, Laguna, Bulacan, Pampanga, and Bataan in developing, using recognized

methods, the fisheries and aquatic resources in the style="font-size:14.0pt;line-

height:150%"Manila style="font-size:14.0pt;line-height:150%"Bay.

(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group,

in accordance with Sec. 124 of RA 8550, in coordination with each other, shall

apprehend violators of PD 979, RA 8550, and other existing laws and regulations

designed to prevent marine pollution in the style="font-size:14.0pt;line-height:150%"Manila

style="font-size:14.0pt;line-height:150%"Bay.

(7) Pursuant to Secs. 2 and 6-c of EO 513[46] and the International Convention for the

Prevention of Pollution from Ships, the PPA is ordered to immediately adopt such

measures to prevent the discharge and dumping of solid and liquid wastes and other

ship-generated wastes into the style="font-size:14.0pt;line-height:150%"Manila style="font-

size:14.0pt;line-height:150%"Bay waters from vessels docked at ports and apprehend the

violators.

(8) The MMDA, as the lead agency and implementor of programs and projects for flood

control projects and drainage services in Metro Manila, in coordination with the DPWH,

DILG, affected LGUs, PNP Maritime Group, Housing and Urban Development

Coordinating Council (HUDCC), and other agencies, shall dismantle and remove all

structures, constructions, and other encroachments established or built in violation of RA

7279, and other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR

(Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers,

and connecting waterways and esteros in Metro Manila. The DPWH, as the principal

implementor of programs and projects for flood control services in the rest of the


country more particularly in Bulacan, Bataan, Pampanga, Cavite, and Laguna, in

coordination with the DILG, affected LGUs, PNP Maritime Group, HUDCC, and other

concerned government agencies, shall remove and demolish all structures, constructions,

and other encroachments built in breach of RA 7279 and other applicable laws along the

Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus

(Cavite) River, the Laguna De Bay, and other rivers, connecting waterways, and esteros

that discharge wastewater into the Manila Bay.

In addition, the MMDA is ordered to establish, operate, and maintain a sanitary

landfill, as prescribed by RA 9003, within a period of one (1) year from finality of this

Decision. On matters within its territorial jurisdiction and in connection with the

discharge of its duties on the maintenance of sanitary landfills and like undertakings, it

is also ordered to cause the apprehension and filing of the appropriate criminal cases

against violators of the respective penal provisions of RA 9003,[47] Sec. 27 of RA 9275

(the Clean Water Act), and other existing laws on pollution.

(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275,

within one (1) year from finality of this Decision, determine if all licensed septic and

sludge companies have the proper facilities for the treatment and disposal of fecal sludge

and sewage coming from septic tanks. The DOH shall give the companies, if found to be

non-complying, a reasonable time within which to set up the necessary facilities under

pain of cancellation of its environmental sanitation clearance.

(10) Pursuant to Sec. 53 of PD 1152,[48] Sec. 118 of RA 8550, and Sec. 56 of RA

9003,[49] the DepEd shall integrate lessons on pollution prevention, waste management,

environmental protection, and like subjects in the school curricula of all levels to

inculcate in the minds and hearts of students and, through them, their parents and




friends, the importance of their duty toward achieving and maintaining a balanced and

healthful ecosystem in the Manila Bay and the entire Philippine archipelago.

(11) The DBM shall consider incorporating an adequate budget in the General

Appropriations Act of 2010 and succeeding years to cover the expenses relating to the

cleanup, restoration, and preservation of the water quality of the Manila Bay, in line with

the country’s development objective to attain economic growth in a manner consistent

with the protection, preservation, and revival of our marine waters.

(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA,

DPWH, DBM, PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA, and

PPA, in line with the principle of “continuing mandamus,” shall, from finality of this

Decision, each submit to the Court a quarterly progressive report of the activities

undertaken in accordance with this Decision.

No costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

LEONARDO A. QUISUstyle="mso-bidi-font-weight:normal"MBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ


RENATO C. CORONA CONCHITA CARPIO MORALES Associate Justice Associate Justice

ADOLFO S. AZCUNA DANTE O. TINGA


MINITA V. CHICO-NAZARIO ANTONIO EDUARDO B. NACHURA


RUBEN T. REYES TERESITA J. style="mso-bidi-font-weight:normal"LEONARDO-DE CASTRO


ARTURO D. BRION

Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO

Chief Justice

G.R. No. 179895 December 18, 2008

FERDINAND S. TOPACIO, petitioner, vs.ASSOCIATE JUSTICE OF THE SANDIGANBAYAN GREGORY SANTOS ONG and THE OFFICE OF THE SOLICITOR GENERAL, respondents.

D E C I S I O N

CARPIO MORALES, J.:

Ferdinand Topacio (petitioner) via the present petition for certiorari and prohibition seeks, in the main, to prevent Justice Gregory Ong (Ong) from further exercising the powers, duties and responsibilities of a Sandiganbayan Associate Justice.

It will be recalled that in Kilosbayan Foundation v. Ermita,1 the Court, by Decision of July 3, 2007, enjoined Ong "from accepting an appointment to the position of Associate Justice of the Supreme Court or assuming the position and discharging the functions of that office, until he shall have successfully completed all necessary steps, through the appropriate adversarial proceedings in court, to show that he is a natural-born Filipino citizen and correct the records of his birth and citizenship."2

http://www.lawphil.net/judjuris/juri2008/dec2008/gr_179895_2008.html#fnt2


On July 9, 2007, Ong immediately filed with the Regional Trial Court (RTC) of Pasig City a Petition for the "amendment/ correction/ supplementation or annotation of an entry in [his] Certificate of Birth," docketed as S.P. Proc No. 11767-SJ, "Gregory Santos Ong v. The Civil Registrar of San Juan, Metro Manila, et al."3

Meanwhile, petitioner, by verified Letter-Request/Complaint4 of September 5, 2007, implored respondent Office of the Solicitor General (OSG) to initiate post-haste a quo warranto proceeding against Ong in the latter’s capacity as an incumbent Associate Justice of the Sandiganbayan. Invoking paragraph 1, Section 7, Article VIII of the Constitution5 in conjunction with the Court’s Decision in Kilosbayan Foundation v. Ermita,6 petitioner points out that natural-born citizenship is also a qualification for appointment as member of the Sandiganbayan and that Ong has failed to meet the citizenship requirement from the time of his appointment as such in October 1998.

The OSG, by letter of September 25, 2007, informed petitioner that it "cannot favorably act on [his] request for the filing of a quo warranto petition until the [RTC] case shall have been terminated with finality."7 Petitioner assails this position of the OSG as being tainted with grave abuse of discretion, aside from Ong’s continuous discharge of judicial functions.

Hence, this petition, positing that:

IN OCTOBER OF 1998, RESPONDENT WAS NOT DULY-QUALIFIED UNDER THE FIRST SENTENCE OF PARAGRAPH 1, SECTION 7, OF THE 1987 CONSTITUTION, TO BE APPOINTED AN ASSOCIATE JUSTICE OF THE SANDIGANBAYAN, MERELY ON THE STRENGTH OF AN IDENTIFICATION CERTIFICATE ISSUED BY THE BUREAU OF IMMIGRATION AND A 1ST INDORSEMENT DATED 22 MAY 1997 ISSUED BY THE SECRETARY OF JUSTICE, BECAUSE, AS OF OCTOBER 1998, RESPONDET’S BIRTH CERTIFICATE INDICATED THAT RESPONDENT IS A CHINESE CITIZEN AND BECAUSE, AS OF OCTOBER 1998, THE RECORDS OF THIS HONORABLE COURT DECLARED THAT RESPONDENT IS A NATURALIZED FILIPINO CITIZEN.8

(Underscoring supplied)

Petitioner thus contends that Ong should immediately desist from holding the position of Associate Justice of the Sandiganbayan since he is disqualified on the basis of citizenship, whether gauged from his birth certificate which indicates him to be a Chinese citizen or against his bar records bearing out his status as a naturalized Filipino citizen, as declared in Kilosbayan Foundation v. Ermita.

Ong, on the other hand, states that Kilosbayan Foundation v. Ermita did not annul or declare null his appointment as Justice of the Supreme Court, but merely enjoined him from accepting his appointment, and that there is no definitive pronouncement therein that he is not a natural-born Filipino. He informs that he, nonetheless, voluntarily relinquished the appointment to the Supreme Court out of judicial statesmanship.9

By Manifestation and Motion to Dismiss of January 3, 2008, Ong informs that the RTC, by Decision of October 24, 2007, already granted his petition and recognized him as a natural-born citizen. The Decision having, to him, become final,10he caused the corresponding annotation thereof on his Certificate of Birth.11

Invoking the curative provisions of the 1987 Constitution, Ong explains that his status as a natural-born citizen inheres from birth and the legal effect of such recognition retroacts to the time of his birth.

Ong thus concludes that in view of the RTC decision, there is no more legal or factual basis for the present petition, or at the very least this petition must await the final disposition of the RTC case which










to him involves a prejudicial issue.

The parties to the present petition have exchanged pleadings12 that mirror the issues in the pending petitions for certiorari in G.R. No. 180543, "Kilosbayan Foundation, et al. v. Leoncio M. Janolo, Jr., et al," filed with this Court and in CA-G.R. SP No. 102318, "Ferdinand S. Topacio v. Leoncio M. Janolo, Jr., et al.,"13 filed with the appellate court, both of which assail, inter alia, the RTC October 24, 2007 Decision.

First, on the objection concerning the verification of the petition.

The OSG alleges that the petition is defectively verified, being based on petitioner’s "personal knowledge and belief and/or authentic records," and having been "acknowledged" before a notary public who happens to be petitioner’s father, contrary to the Rules of Court14 and the Rules on Notarial Practice of 2004,15 respectively.

This technicality deserves scant consideration where the question at issue, as in this case, is one purely of law and there is no need of delving into the veracity of the allegations in the petition, which are not disputed at all by respondents.16

One factual allegation extant from the petition is the exchange of written communications between petitioner and the OSG, the truthfulness of which the latter does not challenge. Moreover, petitioner also verifies such correspondence on the basis of the thereto attached letters, the authenticity of which he warranted in the same verification-affidavit. Other allegations in the petition are verifiable in a similar fashion, while the rest are posed as citations of law.

The purpose of verification is simply to secure an assurance that the allegations of the petition or complaint have been made in good faith; or are true and correct, not merely speculative. This requirement is simply a condition affecting the form of pleadings, and non-compliance therewith does not necessarily render it fatally defective. Indeed, verification is only a formal, not a jurisdictional requirement.17

In the same vein, the Court brushes aside the defect, insofar as the petition is concerned, of a notarial act performed by one who is disqualified by reason of consanguinity, without prejudice to any administrative complaint that may be filed against the notary public.

Certiorari with respect to the OSG

On the issue of whether the OSG committed grave abuse of discretion in deferring the filing of a petition for quo warranto, the Court rules in the negative.

Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words, where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.18

The Court appreciates no abuse of discretion, much less, a grave one, on the part of the OSG in deferring action on the filing of a quo warranto case until after the RTC case has been terminated with finality. A decision is not deemed tainted with grave abuse of discretion simply because the affected party disagrees with it.19

The Solicitor General is the counsel of the government, its agencies and instrumentalities, and its officials or agents. In the discharge of its task, the Solicitor General must see to it that the best interest of the government is upheld within the limits set by law.20










The pertinent rules of Rule 66 on quo warranto provide:

SECTION 1. Action by Government against individuals. – An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against:

(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise;

(b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or

(c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act.

SEC. 2. When Solicitor General or public prosecutor must commence action. ─ The Solicitor General or a public prosecutor, when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specified in the preceding section can be established by proof, must commence such action.

SEC. 3. When Solicitor General or public prosecutor may commence action with permission of court. ─ The Solicitor General or a public prosecutor may, with the permission of the court in which the action is to be commenced, bring such an action at the request and upon the relation of another person; but in such case the officer bringing it may first require an indemnity for the expenses and costs of the action in an amount approved by and to be deposited in the court by the person at whose request and upon whose relation the same is brought. (Italics and emphasis in the original)

In the exercise of sound discretion, the Solicitor General may suspend or turn down the institution of an action for quo warranto where there are just and valid reasons.21 Thus, in Gonzales v. Chavez,22 the Court ruled:

Like the Attorney-General of the United States who has absolute discretion in choosing whether to prosecute or not to prosecute or to abandon a prosecution already started, our own Solicitor General may even dismiss, abandon, discontinue or compromise suits either with or without stipulation with the other party. Abandonment of a case, however, does not mean that the Solicitor General may just drop it without any legal and valid reasons, for the discretion given him is not unlimited. Its exercise must be, not only within the parameters get by law but with the best interest of the State as the ultimate goal.23

Upon receipt of a case certified to him, the Solicitor General exercises his discretion in the management of the case. He may start the prosecution of the case by filing the appropriate action in court or he may opt not to file the case at all. He may do everything within his legal authority but always conformably with the national interest and the policy of the government on the matter at hand.24

It appears that after studying the case, the Solicitor General saw the folly of re-litigating the same issue of Ong’s citizenship in the quo warranto case simultaneously with the RTC case, not to mention the consequent risk of forum-shopping. In any event, the OSG did not totally write finis to the issue as it merely advised petitioner to await the outcome of the RTC case.

Certiorari and Prohibition with respect to Ong

By petitioner’s admission, what is at issue is Ong’s title to the office of Associate Justice of Sandiganbayan.25 He claims to have been constrained to file the present petition after the OSG refused to heed his request to institute a suit for quo warranto. Averring that Ong is disqualified to be a member






of any lower collegiate court, petitioner specifically prays that, after appropriate proceedings, the Court

. . . issue the writs of certiorari and prohibition against Respondent Ong, ordering Respondent Ong to cease and desist from further exercising the powers, duties, and responsibilities of a Justice of the Sandiganbayan due to violation of the first sentence of paragraph 1, Section 7, of the 1987 Constitution; . . . issue the writs of certiorari and prohibition against Respondent Ong and declare that he was disqualified from being appointed to the post of Associate Justice of the Sandiganbayan in October of 1998, considering that, as of October of 1998, the birth certificate of Respondent Ong declared that he is a Chinese citizen, while even the records of this Honorable Court, as of October of 1998, declared that Respondent Ong is a naturalized Filipino; x x x26

While denominated as a petition for certiorari and prohibition, the petition partakes of the nature of a quo warranto proceeding with respect to Ong, for it effectively seeks to declare null and void his appointment as an Associate Justice of the Sandiganbayan for being unconstitutional. While the petition professes to be one for certiorari and prohibition, petitioner even adverts to a "quo warranto" aspect of the petition.27

Being a collateral attack on a public officer’s title, the present petition for certiorari and prohibition must be dismissed.

The title to a public office may not be contested except directly, by quo warranto proceedings; and it cannot be assailed collaterally,28 even through mandamus29 or a motion to annul or set aside order.30 In Nacionalista Party v. De Vera,31 the Court ruled that prohibition does not lie to inquire into the validity of the appointment of a public officer.

x x x [T]he writ of prohibition, even when directed against persons acting as judges or other judicial officers, cannot be treated as a substitute for quo warranto or be rightfully called upon to perform any of the functions of the writ. If there is a court, judge or officer de facto, the title to the office and the right to act cannot be questioned by prohibition. If an intruder takes possession of a judicial office, the person dispossessed cannot obtain relief through a writ of prohibition commanding the alleged intruder to cease from performing judicial acts, since in its very nature prohibition is an improper remedy by which to determine the title to an office.32

Even if the Court treats the case as one for quo warranto, the petition is, just the same, dismissible.

A quo warranto proceeding is the proper legal remedy to determine the right or title to the contested public office and to oust the holder from its enjoyment.33 It is brought against the person who is alleged to have usurped, intruded into, or unlawfully held or exercised the public office,34 and may be commenced by the Solicitor General or a public prosecutor, as the case may be, or by any person claiming to be entitled to the public office or position usurped or unlawfully held or exercised by another.35

Nothing is more settled than the principle, which goes back to the 1905 case of Acosta v. Flor,36

reiterated in the recent 2008 case of Feliciano v. Villasin,37 that for a quo warranto petition to be successful, the private person suing must show a clear right to the contested office. In fact, not even a mere preferential right to be appointed thereto can lend a modicum of legal ground to proceed with the action.38

In the present case, petitioner presented no sufficient proof of a clear and indubitable franchise to the office of an Associate Justice of the Sandiganbayan. He in fact concedes that he was never entitled to assume the office of an Associate Justice of the Sandiganbayan.39















In the instance in which the Petition for Quo Warranto is filed by an individual in his own name, he must be able to prove that he is entitled to the controverted public office, position, or franchise; otherwise, the holder of the same has a right to the undisturbed possession thereof. In actions for Quo Warranto to determine title to a public office, the complaint, to be sufficient in form, must show that the plaintiff is entitled to the office. In Garcia v. Perez, this Court ruled that the person instituting Quo Warranto proceedings on his own behalf, under Section 5, Rule 66 of the Rules of Court, must aver and be able to show that he is entitled to the office in dispute. Without such averment or evidence of such right, the action may be dismissed at any stage.40 (Emphasis in the original)

The rightful authority of a judge, in the full exercise of his public judicial functions, cannot be questioned by any merely private suitor, or by any other, except in the form especially provided by law.41 To uphold such action would encourage every disgruntled citizen to resort to the courts, thereby causing incalculable mischief and hindrance to the efficient operation of the governmental machine.42

Clearly then, it becomes entirely unwarranted at this time to pass upon the citizenship of Ong. The Court cannot, upon the authority of the present petition, determine said question without encroaching on and preempting the proceedings emanating from the RTC case. Even petitioner clarifies that he is not presently seeking a resolution on Ong’s citizenship, even while he acknowledges the uncertainty of Ong’s natural-born citizenship.43

The present case is different from Kilosbayan Foundation v. Ermita, given Ong’s actual physical possession and exercise of the functions of the office of an Associate Justice of the Sandiganbayan, which is a factor that sets into motion the de facto doctrine.

Suffice it to mention that a de facto officer is one who is in possession of the office and is discharging its duties under color of authority, and by color of authority is meant that derived from an election or appointment, however irregular or informal, so that the incumbent is not a mere volunteer.44 If a person appointed to an office is subsequently declared ineligible therefor, his presumably valid appointment will give him color of title that will confer on him the status of a de facto officer.45

x x x A judge de facto assumes the exercise of a part of the prerogative of sovereignty, and the legality of that assumption is open to the attack of the sovereign power alone. Accordingly, it is a well-established principle, dating back from the earliest period and repeatedly confirmed by an unbroken current of decisions, that the official acts of a de facto judge are just as valid for all purposes as those of a de jure judge, so far as the public or third persons who are interested therein are concerned.46

If only to protect the sanctity of dealings by the public with persons whose ostensible authority emanates from the State, and without ruling on the conditions for the interplay of the de facto doctrine, the Court declares that Ong may turn out to be either a de jure officer who is deemed, in all respects, legally appointed and qualified and whose term of office has not expired, or a de facto officer who enjoys certain rights, among which is that his title to said office may not be contested except directly by writ of quo warranto,47 which contingencies all depend on the final outcome of the RTC case.

With the foregoing disquisition, it becomes unnecessary to dwell on the ancillary issues raised by the parties.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

CONCHITA CARPIO MORALES









Associate Justice

WE CONCUR:

REYNATO S. PUNOChief Justice

LEONARDO A. QUISUMBINGAssociate Justice

CONSUELO YNARES-SANTIAGOAssociate Justice

ANTONIO T. CARPIOAssociate Justice

MA. ALICIA AUSTRIA-MARTINEZAssociate Justice

RENATO C. CORONAAssociate Justice

ADOLFO S. AZCUNAAssociate Justice

DANTE O. TINGAAssociate Justice

MINITA V. CHICO-NAZARIOAssociate Justice

PRESBITERO J. VELASCO, JR.Associate Justice

ANTONIO EDUARDO B. NACHURAAssociate Justice

RUBEN T. REYESAssociate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRIONAssociate Justice

THE OFFICE OF THE G.R. No. 167711OMBUDSMAN,

Petitioner, Present:

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

CARPIO,

AUSTRIA-MARTINEZ,

style="font-size:14.0pt;mso-bidi-font-size:19.0pt;font-family:\"Times New Roman\""CORONA,

- versus - CARPIO MORALES,

AZCUNA,

TINGA,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,*

REYES,

LEONARDO-DE CASTRO, and BRION, JJ.

Promulgated:RAMON C. GALICIA,

Respondent. October 10, 2008 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N REYES, R.T., J.: GENERALLY, the Ombudsman must yield to the Division School Superintendent

in the investigation of administrative charges against public school teachers.

The rule and the exception are at focus in this petition for review on certiorari of the

Decision[1] of the Court of Appeals (CA) divesting the Ombudsman of jurisdiction.

The Facts

http://sc.judiciary.gov.ph/jurisprudence/2008/october2008/167711.htm#_ftn2


Culled from the records, the facts are as follows:[2]

Respondent Ramon C. Galicia was a former public school teacher at M.B. Asistio, Sr.

High School (MBASHS) in style="font-size:14.0pt;line-height:150%"Caloocan style="font-

size:14.0pt;line-height:150%"City. Based on the academic records that he submitted

forming part of his 201 file, style="font-size:14.0pt;

line-height:150%"Galicia graduated from the Far Eastern University with a degree in civil

engineering but failed to pass the board examinations. He also represented himself to

have earned eighteen (18) units in education in school year (SY) 1985-1986, evidenced

by a copy of a Transcript of Records (TOR) from the Caloocan City Polytechnic College

(CCPC). Likewise, he passed the Teachers’ Professional Board Examination (TPBE)

given on style="font-size:14.0pt;line-height:150%"November 22, 1987.

Subsequently, on December 2001, Reynaldo V. Yamsuan, then Principal of the

MBASHS, reviewed the 201 files of his teaching staff. He took note that the TOR

submitted by style="font-size:14.0pt;line-height:150%"Galicia was not an original copy, but

only stamped with “verified correct from the original” signed by Administrative Officer

Rogelio Mallari. Pursuant to a Division Memorandum, Yamsuan required style="font-

size:14.0pt;line-height:150%"Galicia and other teachers with similar records, to secure

authenticated copies of the TOR that they submitted. All of the teachers who were given

the said instruction complied, with the exception of style="font-size:14.0pt;line-

height:150%"Galicia.

Yamsuan proceeded to verify the authenticity of the said TOR by requesting for

confirmation from the school. Yamsuan was surprised to receive a reply from Marilyn


Torres-De Jesus, College Registrar of CCPC, stating that they had no record of the said

TOR, and more importantly, that they had no records that style="font-size:14.0pt;

line-height:150%"Galicia, indeed, took up eighteen (18) units of education in SY 1985-

1986. The letter of De Jesus stated:

This has reference to the herein attached photocopy of Transcript of Records of MR. RAMON C. GALICIA which you forwarded in our office for authentication dated November 29, 2002.

Relative to this, we would like to inform you that on the basis of our records kept in this office, MR. RAMON C. GALICIA has no records from the 18 units of Education 1st Semester 1985-1986.[3]

Acting on his findings, Yamsuan lodged an affidavit-complaint for falsification,

dishonesty, and grave misconduct against style="font-size:14.0pt;line-height:150%"Galicia

before the Ombudsman.[4]

In his Counter-Affidavit,[5] style="font-size:14.0pt;line-height:150%"Galicia contended that

the complaint was malicious and motivated by revenge. Yamsuan had an axe to grind

against him. Earlier, he filed a falsification case against Yamsuan. The two likewise

clashed on account of style="font-size:14.0pt;line-height:150%"Galicia’s chairmanship of the

teachers’ cooperative.

style="font-size:14.0pt;line-height:150%"Galicia stressed that the TOR he submitted was

authentic, as shown by the signature of then College Registrar Rolando Labrador. He

argued that the certification from the present college registrar that CCPC had no record

of his TOR did not prove that the document was spurious. Rather, it only proved that

CCPC’s filing system of scholastic records was disorganized. This, according to

style="font-size:14.0pt;line-height:150%"Galicia, explained why the school’s copy of the TOR

could not be found. Moreover, style="font-size:14.0pt;line-height:150%"Galicia argued that




the TPBE was a highly specialized type of exam that could only be passed if the

examinee acquired academic units in education. If he did not take up the said eighteen

(18) units in education, then he could not have possibly passed the TPBE which he took

on style="font-size:14.0pt;line-height:150%"November 22, 1987.

During the preliminary conference, style="font-size:14.0pt;line-height:150%"Galicia

presented for comparison the original of the TOR and Certificate of Grades (style="font-

size:14.0pt;line-height:150%"COG), as well as the original copies of the other documents in

his 201 file. A subpoena duces tecum was subsequently served upon Prof. Marilyn T.

De Jesus, Registrar of CCPC, to appear before the Evaluation and Preliminary

Investigation Bureau for the purpose of certifying the authenticity of style="font-

size:14.0pt;line-height:150%"Galicia’s school records. De Jesus, however, declined to

certify the documents because no copies were on file in the school. In her reply letter,

De Jesus stated:

x x x we would like to inform your good office that since I was appointed as the College Registrar only June 20, 1997, I cannot certify whether or not the attached documents were issued by the Caloocan City Polytechnic College. But, we would like to inform you that based on the records kept in this office, the attached two documents are not available in our file and MR. RAMON C. GALICIA has no records from the 18 units of Education, 1st Semester, 1985-1986.[6]

Ombudsman Disposition

After the parties submitted their reply, rejoinder, and respective memoranda, the

Ombudsman gave judgment with the following disposition:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered finding Galicia RAMON C. GALICIA, Guilty of Dishonesty for which the penalty of Dismissal From the Service, Forfeiture of Leave Credits and Retirement Benefits and Temporary Disqualification for Re-employment in the Government Service for a period of One (1) Year from the Finality of this Decision, is hereby imposed,


pursuant to Section 52 (A-1) OF THE Uniform Rules on Administrative Cases (CSC Resolution No. 991936).[7]

While stating that style="font-size:14.0pt;line-height:150%"Galicia presented the original of

the questioned documents during the preliminary conference,[8] the Ombudsman

nevertheless found that the absence of a certification from the College Registrar

destroyed the TOR’s credibility. Said the Ombudsman:

In the preliminary conference of the case held on style="mso-bidi-font-weight:normal"September 10, 2002, the respondent, together with his counsel presented for comparison the original copies of the following documents: (1) transcript of records (FEU for Civil Engineering), (2) transcript of records, Caloocan City Polytechnic College of the 18 units subject signed by the then Registrar Rolando Labrador; (3) Certification of grades also signed by then Registrar Rolando Labrador; and (4) PBET (teachers board examination grade 73.75% issued by the Civil Service).

All these documents (transcript from the Far Eastern University and the Caloocan City Polytechnic College) were duly signed by their respective registrar.[9]

x x x x

It is therefore clear that the pieces of evidence on record tend to establish the fact that the Official Transcript of Records submitted by the respondent is spurious, owing to the fact that he does not have any record of having attended and/or obtained the eighteen (18) units of teaching education subjects.

The photocopy of his Official Transcript of Records does not in any way rebut the evident findings against him, as the same prove to be weak as specie of evidence. If, indeed, the respondent has obtained the eighteen (18) units of teaching education which he claims, then he could easily prove the same apart from the mere photocopy of this Official Transcript of Records. Stated otherwise, if the respondents did took (sic) eighteen (18) units of teaching education subjects, then the same can be easily established by the records of the college itself. However, the style="mso-bidi-font-weight:normal"Caloocan style="mso-bidi-font-weight: normal"City style="mso-bidi-font-weight:normal"Polytechnic style="mso-bidi-font-weight: normal"College has been consistent in its stand that the respondent has no record of having obtained the teaching education units in question.[10] (Emphasis supplied)





style="font-size:14.0pt;line-height:150%"Galicia filed a motion for reconsideration,

raising the issue of jurisdiction for the first time. He argued that it is not the

Ombudsman, but the Department of Education, through the School Superintendent,

which has jurisdiction over administrative cases against public school teachers, as

mandated by Republic Act (R.A.) No. 4670, or the Magna Carta for Public School

Teachers.[11]

style="font-size:14.0pt;line-height:150%"Galicia further challenged the jurisdiction of

the Ombudsman by invoking Section 20 of R.A. No. 6770 or the Ombudsman Act[12]

which enumerates the instances when the Ombudsman may not conduct an

administrative investigation. Under the said provision, the Ombudsman may not

conduct investigation if the following requisites concur:

1. Complainant has an adequate remedy in another judicial or quasi-judicial body;

2. The complaint pertains to a matter outside the jurisdiction of the Ombudsman;

3. The complaint is trivial, frivolous, vexatious or made in bad faith;

4. Complainant has no sufficient personal interest in the subject matter of the

grievance; or

5. The complaint was filed after one year from the occurrence of the act or omission

complained of.[13]




According to style="font-size:14.0pt;line-height:150%"Galicia, all of the above conditions

were present in the case filed against him. An adequate remedy existed in the Office of

the Secretary of Education; the matter was outside the jurisdiction of the Ombudsman;

the complaint was made in bad faith; and complainant Yamsuan had no sufficient

personal interest in the matter.

Lastly, style="font-size:14.0pt;line-height:150%"Galicia claimed that the Ombudsman lacked

jurisdiction inasmuch as the complaint was filed only in 2002, thirteen (13) years from

the time he allegedly committed the dishonest act in 1989. According to him, this

violated Section 20(5) of R.A. No. 6770, which mandated that all complaints must be

filed within one year from the occurrence of the act charged.[14]

The Ombudsman denied style="font-size:14.0pt;line-height:150%"Galicia’s motion for

reconsideration.[15] It declared that the Ombudsman’s disciplining authority extended

over all illegal, unjust, and improper acts of public officials or employees, as expressly

provided by the 1987 Constitution and the Ombudsman Act.

Even granting that R.A. No. 4670[16] gave the School Superintendent jurisdiction over

administrative cases against public school teachers like style="font-size:14.0pt;line-

height:150%"Galicia, it did not operate to oust the Ombudsman from its disciplining

authority over public employees. There was, in fact, as argued by the Ombudsman,

concurrent jurisdiction between the two.

style="font-size:14.0pt;line-height:150%"Galicia elevated the case to the CA.




CA Decision

On style="font-size:14.0pt;line-height:150%"January 20, 2005, the CA reversed and set

aside the decision of the Ombudsman,[17] disposing as follows:

WHEREFORE, in view of the foregoing, the instant Petition is hereby GRANTED and the Decision dated October 18, 2002 as well as the Order dated July 28, 2003 of public respondent are hereby REVERSED AND SET ASIDE. Petitioner is ordered REINSTATED to his former position and is hereby awarded backwages from the time of his illegal dismissal until he is reinstated and also all other monetary benefits that may have accrued to him during the period of his unjustified dismissal.[18]

Principally, the CA held that jurisdiction over public school teachers belonged to the

School Superintendent as mandated by R.A. No. 4670.[19]

The CA, however, did not hinge its decision solely on the question of jurisdiction. It

upheld the arguments of style="font-size:14.0pt;line-height:150%"Galicia and, consequently,

overturned the findings of fact during the investigation proceedings. Contrary to the

ruling of the Ombudsman, the CA ruled that the school’s lack of certification did not

establish that the TOR was fabricated or spurious. It was possible that the records were

only missing. The “verified correct from the original” notations in the photocopied TOR

and style="font-size:14.0pt;line-height:150%"COG prove that the documents were, indeed,

authentic.

Issues

In this petition for review, the Ombudsman, via Rule 45, imputes to the CA twin errors,

viz.:




I

WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS ERRED IN NULLIFYING THE DECISION OF THE OFFICE OF THE OMBUDSMAN ON ALLEGED JURISDICTIONAL INFIRMITY.

II

WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS ERRED IN REVERSING THE FINDINGS OF FACT OF THE OFFICE OF THE OMBUDSMAN WHICH ARE BASED ON SUBSTANTIAL EVIDENCE.[20] (Underscoring supplied)

Our Ruling

At the center of the present controversy is the authority granted to the Ombudsman over

administrative cases against public school teachers. Before We proceed to discuss the

merits of the petition, We shall first review the authority granted to the Ombudsman

under existing laws.

The duty and privilege of the Ombudsman to act as protector of the people against

the illegal and unjust acts of those who are in the public service, emanate from no

less than the 1987 Constitution. Section 12 of Article XI states:

Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.

Under Section 13, Article XI, the Ombudsman is empowered to conduct investigations

on its own or upon complaint by any person when such act appears to be illegal,

unjust, improper, or inefficient. He is also given broad powers to take the appropriate


disciplinary actions against erring public officials and employees.

In Deloso v. Domingo,[21] the Court declared that the clause “illegal act or omission of

any public official” encompasses any crime committed by a public official or employee.

Its reach is so vast that there is no requirement that the act or omission be related to or

be connected with the performance of official duty. The rationale for this grant of vast

authority is to insulate the Ombudsman from the corrupt influences of interested persons

who are able to sway decisions in their favor, and thus thwart the efforts to prosecute

offenses committed while in office and to penalize erring employees and officials.

As mandated by the 1987 Constitution, The Ombudsman Act was enacted in line with

the state’s policy of maintaining honesty and integrity in the public service and take

effective measures against graft and corruption.[22] Its investigative authority is

enshrined in Section 15:

SEC. 15. Powers, Functions and Duties. – The Ombudsman shall have the following powers, functions and duties:

1. Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases. (Emphasis supplied)

This power of investigation granted to the Ombudsman by the 1987 Constitution and

The Ombudsman Act is not exclusive but is shared with other similarly authorized

government agencies, such as the PCGG and judges of municipal trial courts and

municipal circuit trial courts.[23] The power to conduct preliminary investigation on

charges against public employees and officials is likewise concurrently shared with the




Department of Justice.[24] Despite the passage of the Local Government Code in 1991,

the Ombudsman retains concurrent jurisdiction with the Office of the President and the

local Sanggunians to investigate complaints against local elective officials.[25]

Section 19 of the Ombudsman Act further enumerates the types of acts covered by the

authority granted to the Ombudsman:

SEC. 19. Administrative Complaints. – The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which:

1. Are contrary to law or regulation;

2. Are unreasonable, unfair, oppressive or discriminatory;

3. Are inconsistent with the general course of an agency’s functions, though in accordance with law;

4. Proceed from a mistake of law or an arbitrary ascertainment of facts;

5. Are in the exercise of discretionary powers but for an improper purpose; or

6. Are otherwise irregular, immoral or devoid of justification

In the exercise of its duties, the Ombudsman is given full administrative disciplinary

authority. His power is not limited merely to receiving, processing complaints, or

recommending penalties. He is to conduct investigations, hold hearings, summon

witnesses and require production of evidence and place respondents under preventive

suspension. This includes the power to impose the penalty of removal, suspension,

demotion, fine, or censure of a public officer or employee.[26]

A review of the Ombudsman Act and the Magna Carta for Public School Teachers

reveals an apparent overlapping of jurisdiction over administrative cases against public

school teachers.




Section 9 of the Magna Carta for Public School Teachers grants jurisdiction over erring

public school teachers to an Investigating Committee headed by the Division School

Superintendent. The provision reads:

SEC. 9. Administrative Charges. – Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who should at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teachers’ organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools. The committee shall submit its findings and recommendations to the Director of Public Schools within thirty days from the termination of the hearings: Provided, however, That where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education.

style="font-size:14.0pt;line-height:150%"Galicia argues that jurisdiction exclusively belongs

to the investigating committee on the main thesis that the Magna Carta for Public School

Teachers is a special law which should take precedence over the Ombudsman Act, a

general law. The Ombudsman maintains that jurisdiction among the two bodies is

concurrent since there is no express repeal in either of the laws that would oust the

Ombudsman from its authority over public school teachers.

This is not a novel issue. This Court has recently ruled in Office of the Ombudsman

v. Estandarte[27] that by virtue of the Magna Carta for Public School Teachers,

original jurisdiction belongs to the school superintendent. The intention of the law,

which is to impose a separate standard and procedural requirement for administrative

cases involving public school teachers, must be given consideration.[28] Hence, the

Ombudsman must yield to this committee of the Division School Superintendent. Even

in the earlier case of Alcala v. Villar,[29] the Court held that:

Republic Act No. 6770, the Ombudsman Act of 1989, provides that the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions,




instrumentalities and agencies, including members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries except over officials who may be removed by impeachment or over Members of Congress, and the Judiciary. However, in Fabella v. Court of Appeals, it was held that R.A. No. 4670, the Magna Carta for Public School Teachers, specifically covers and governs administrative proceedings involving public school teachers. x x x[30] (Emphasis supplied)

Be that as it may, We hold here that the Ombudsman’s exercise of jurisdiction was

proper.

The CA was in error in relying on Alcala, without taking into consideration the

case’s full import. In Alcala, the Court, while recognizing the jurisdiction of the School

Superintendent, nonetheless upheld the decision of the Ombudsman on the rationale that

the parties were afforded their right to due process during the investigation proceedings.

Respondent in the Alcala case was given sufficient opportunity to be heard and submit

his defenses to the charges made against him. Thus, he is estopped from questioning the

jurisdiction of the Ombudsman after an adverse decision was promulgated.

In the same manner, the recent Estandarte case recognized similar circumstances

cited in Emin v. De Leon.[31] In De Leon, it was found that the parties were afforded

their right to due process when both fully participated in the proceedings before the Civil

Service Commission (style="font-size:14.0pt;line-height:

150%"CSC). The Court ruled that while jurisdiction lies with the School

Superintendent, respondent is estopped from attacking the proceedings before the

style="font-size:14.0pt;line-height:150%"CSC.

In the present case, records show that style="font-size:14.0pt;line-height:150%"Galicia

was given the right to due process in the investigation of the charges against him. He

participated in the proceedings by making known his defenses in the pleadings that he



submitted. It was only when a decision adverse to him was rendered did he question the

jurisdiction of the Ombudsman.

Under the principles of estoppel and laches, We rule that it is now too late for style="font-

size:14.0pt;line-height:150%"Galicia to assail the administrative investigation conducted and

the decision rendered against him.

style="font-size:14.0pt;line-height:150%"Galicia strongly believes and claims that he

was denied due process for the reason that he only presented his original documents

once and he was allegedly not informed of the hearing date when De Jesus, the CCPC

Registrar, testified. A perusal of the records show, however, that style="font-

size:14.0pt;line-height:150%"Galicia was given an opportunity by petitioner to comment on

the certification issued by De Jesus that CCPC has no record of the TOR and style="font-

size:14.0pt;line-height:

150%"COG presented by style="font-size:14.0pt;line-height:150%"Galicia.[32] Indeed,

style="font-size:14.0pt;line-height:150%"Galicia was able to present his side when he filed his

comment to said certification on style="font-size:14.0pt;line-height:150%"January 17, 2003.

[33]

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.[34] During the proceedings before the Ombudsman, style="font-size:14.0pt;line-

height:150%"Galicia filed a Counter-Affidavit, Rejoinder-Affidavit, Comment on the

Certification of the CCPC Registrar, and a Rejoinder to Reply. He also submitted

documents in support of his contentions. Likewise, there is no indication that the

proceedings were done in a manner that would prevent him from presenting his

defenses. Verily, these suffice to satisfy the requirements of due process because the




opportunity to be heard especially in administrative proceedings (where technical rules

of procedure and evidence are not strictly applied) is not limited to oral arguments.

More often, this opportunity is conferred through written pleadings that the parties

submit to present their charges and defenses.[35]

In sum, We reiterate that it is the School Superintendent and not the Ombudsman that

has jurisdiction over administrative cases against public school teachers. Yet, style="font-

size:14.0pt;line-height:150%"Galicia is estopped from belatedly assailing the jurisdiction of

the Ombudsman. His right to due process was satisfied when he participated fully in the

investigation proceedings. He was able to present evidence and arguments in his

defense. The investigation conducted by the Ombudsman was therefore valid.

style="text-decoration:

none"

We now proceed to discuss the meat of the petition.

Superior courts are not triers of facts. When the findings of fact of the Ombudsman are

supported by substantial evidence, it should be considered as conclusive.[36] This court

recognizes the expertise and independence of the Ombudsman and will avoid interfering

with its findings absent a finding of grave abuse of discretion.[37] However, the

findings of fact of the Ombudsman will not escape judicial review, more so in cases

where the CA reached a different conclusion on appeal.[38]

The Ombudsman found that the TOR submitted by style="font-size:14.0pt;

line-height:150%"Galicia as evidence that he took up eighteen (18) units of education in

the CCPC is spurious. In arriving at this conclusion, the Ombudsman conducted

investigation proceedings and examined the evidence presented by both parties. In





essence, it was held that a TOR that is not authenticated by the school is not a valid

document.

Records show that style="font-size:14.0pt;

line-height:150%"Galicia presented an original copy of the TOR and style="font-

size:14.0pt;line-height:150%"COG during the preliminary investigation conducted by the

Ombudsman.[39] He argues that these original copies are enough proof that his

documents are authentic and the fact that the present registrar of the school did not

certify his school records is not persuasive evidence to defeat his original documents.

On appeal, the CA reversed the findings of the Ombudsman on the ground that the

certification by the present College Registrar attests merely to the fact that petitioner’s

transcript does not appear in their records. According to the CA, style="font-

size:14.0pt;line-height:150%"Galicia did present the original copy of his TOR during the

preliminary conference. We quote with approval the observations of the CA on this

matter:

The certification issued by the present College Registrar, Prof. Marilyn de Jesus of the Polytechnic College of Caloocan City attests merely to the fact that petitioner’s transcript does not appear on their records. It is possible that the transcript of petitioner’s was only misplaced and/or missing. Such certification, however, does not necessarily mean that petitioner fabricated his education records or that the one which he presented is spurious just so he could gain employment at the style="mso-bidi-font-weight:normal"M.B. style="mso-bidi-font-weight: normal"Asistio style="mso-bidi-font-weight:normal"Sr. style="mso-bidi-font-weight: normal"High School. Verily, the failure of Prof. Marilyn de Jesus to locate the transcript of records of petitioner should not be taken against the latter. Besides, as confirmed by the investigating officer in the administrative proceedings, petitioner presented the original of his transcript of records at the preliminary conference of the case on style="mso-bidi-font-weight: normal"September 10, 2002.

As earlier intimated, the transcript of grades for the 18 units of teaching education which petitioner submitted was issued to him by then College Registrar Rolando Labrador and bears the signature of Administrative Officer III Rogelio Mallari with the notation: “verified correct from the original.” The


certification was signed by Administrative Officer III Rogelio Mallari and the previous College Registrar, Rolando Labrador. Said notation, thus, connotes that the transcript of records and accompanying certification are authentic reproductions of the original.[40] (Emphasis supplied)

We are mindful of Our decision in Lumancas v. Intas,[41] where two government

employees submitted TORs and Special Orders as proof of their educational attainment.

Upon verification with the CHED, it was found that there were no records with the

Department of Education that respondents were enrolled with the named school during

the period. Consequently, the decision of the Ombudsman finding them guilty of

falsification, dishonesty, and grave misconduct was upheld.

We find, however, that Lumancas is not applicable to this case. In Lumancas, it was the

CHED which issued the negative certification, a public document of a government

institution which enjoys the presumption of regularity.[42] Here, what was presented to

the Ombudsman was a certification not from the CHED but from a college, and that

does not enjoy the same evidentiary value.

In administrative proceedings, the complainant has the burden of proving the

allegations in the complaint.[43] Absent substantial evidence to prove the falsity of the

TOR presented by style="font-size:14.0pt;line-height:150%"Galicia duly signed by the

College Registrar at that time, We are constrained to uphold his innocence of the

charges of falsification.

style="font-size:14.0pt;line-height:150%"Galicia’s original TOR, although belatedly

submitted, is positive evidence that, indeed, he took up 18 units of education at the

CCPC. The present College Registrar’s certification of the absence of style="font-

size:14.0pt;line-height:150%"Galicia’s records in her office, is negative evidence to the

contrary. Following the general rule that positive evidence is more credible than





negative evidence, We find more reason to uphold the findings of the CA.[44]

WHEREFORE, the petition is DENIED and the appealed Decision AFFIRMED.

SO ORDERED.

RUBEN T. REYES

Associate Justice

OFFICE OF THE PRESIDENT

and PRESIDENTIAL ANTI-GRAFT COMMISSION,

Petitioners,

- versus -

CALIXTO R. CATAQUIZ,

Respondent.

G.R. No. 183445

Present:

PERALTA, J., Acting Chairperson,

BERSAMIN,∗

ABAD,

w:st="on"style="font-size:14.0pt;mso-fareast-language:EN-PH"MENDOZA, and

SERENO,∗ ∗ JJ.

Promulgated:

http://sc.judiciary.gov.ph/jurisprudence/2011/september2011/183445.htm#_ftn3




September 14, 2011

x --------------------------------------------------------------------------------------- x

D E C I S I O N

MENDOZA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of

Court assailing the January 31, 2008 Decision[1] and the June 23, 2008 Resolution[2] of

the Court of Appeals (CA) in CA-G.R. SP No. 88736 entitled “Calixto R. Cataquiz v.

Office of the President and Concerned Employees of the LLDA (CELLDA),” which

reversed and set aside the Amended Resolution[3] dated February 10, 2005 of the Office

of the President (OP).

The Facts


Respondent Calixto R. Cataquiz (Cataquiz) was appointed as General Manager of the

Laguna Lake Development Authority (LLDA) on April 16, 2001.[4]

On April 1, 2003, a majority of the members of the Management Committee and the

rank-and-file employees of the LLDA submitted to then Department of Environment and

Natural Resources (DENR) Secretary Elisea G. Gozun (Secretary Gozun) their Petition

for the Ouster of Cataquiz as LLDA General Manager[5] on the grounds of corrupt and

unprofessional behavior and management incompetence.

In response, Secretary Gozun ordered the formation of an investigating team to conduct






an inquiry into the allegations against Cataquiz. The results of the fact-finding activity

were submitted in a Report[6] dated May 21, 2003 in which it was determined that

respondent may be found guilty for acts prejudicial to the best interest of the government

and for violations of several pertinent laws and regulations. Consequently, the

investigating team recommended that the case be forwarded to the Presidential Anti-

Graft Commission (PAGC) for proper investigation.

In her Memorandum[7] for the President dated May 23, 2003, Secretary Gozun reported

that there is prima facie evidence to support some accusations against Cataquiz which

may be used to pursue an administrative or criminal case against him. It was further

noted that respondent lost his leadership credibility. In light of these, she recommended

that Cataquiz be relieved from his position and that he be investigated by PAGC.

On June 6, 2003, in a letter[8] to then President Gloria Macapagal-Arroyo (President

Arroyo), the Concerned Employees of the Laguna Lake Development Authority

(CELLDA), a duly organized employees union of the LLDA, expressed their support for

the petition to oust Cataquiz and likewise called for his immediate replacement.

Thereafter, CELLDA formally filed its Affidavit Complaint[9] dated September 5, 2003

before PAGC charging Cataquiz with violations of Republic Act (R.A.) No. 3019 (The

Anti-Graft and Corrupt Practices Act), Executive Order (E.O.) No. 292 (The

Administrative Code) and R.A. No. 6713 (Code of Conduct and Ethical Standards for

Public Officials and Employees), to wit:

Violation of Section 3(e) of Republic Act 3019 in relation to Section 46 b(8) and (27), Chapter VI, Book V of EO 292.





a. That respondent directly transacted with 35 fishpen operators and authorized [the] payment of fishpen fees based on negotiated prices in violation of LLDA Board Resolution No. 28, Series of 1996 as alleged.

b. That respondent allegedly approved additional fishpen areas in the Lake without the approval of the Board and in violation of the existing Zoning and Management Plan (ZOMAP) of the Laguna de Bay that allows a carrying capacity of 10,000 hectares [of] fishpen structures in the lake based on scientific and technical studies.

c. That respondent allegedly condoned or granted reductions of fines and penalties imposed by the Public Hearing Committee, the duly authorized adjudicatory body of the LLDA. The condonation was allegedly without the concurrence of LLDA Board of Directors.

d. That respondent allegedly caused the dismissal of some cases pending with the LLDA without the concurrence of the Public Hearing Committee.

e. That on June 4, 2002, respondent allegedly appropriated and disbursed the amount of Five Hundred Thousand Pesos (₱500,000.00) from LLDA funds and confidential funds without any authority from the Department of Budget and Management.

f. That respondent allegedly contracted the services of several consultants without prior written concurrence from the Commission on Audit.

g. That on December 19, 2001, respondent allegedly appropriated and disbursed LLDA funds for the grant of gifts to indigent residents of San Pedro, Laguna. Said appropriation is not within the approved budget neither was it sanctioned by the Board of Directors, as alleged.

h. That respondent allegedly allowed a Taiwanese company identified as Phil-Tai Fishing and Trade Company to occupy and utilize certain portions of LLDA facilities located at Km. 70, Barangay Bangyas, Calauan, Laguna without any contract nor authority from the LLDA Board.

i. That respondent allegedly authorized the direct procurement of fish breeders from Delacon Realty and Development Corporation without the required bidding in accordance with COA rules and regulations.

Violation of Section 7(d) of Republic Act 6713:

a. That respondent allegedly solicited patronage from regulated industries in behalf of RVQ

Productions, Inc. for the promotion of its film entry to the 2002 Metro Manila Film Festival entitled “Home Alone the Riber.”

Violation of Section 5(a) of Republic Act 6713:

a. That respondent allegedly failed to act promptly and expeditiously on official documents, requests, papers or letters sent by the public or those which have been processed and completed staff work for his appropriate action.[10]

On December 5, 2003, PAGC issued a Resolution[11] recommending to the President

that the penalty of dismissal from the service with the accessory penalties of

disqualification for re-employment in the public service and forfeiture of government

retirement benefits be imposed upon Cataquiz.

Thereafter, on December 8, 2003, Cataquiz was replaced by Fatima A.S. Valdez, who

then assumed the position of Officer-in-Charge/General Manager and Chief Operating

Officer of the LLDA by virtue of a letter of appointment dated December 3, 2003 issued

by President Arroyo.[12]

In its Decision[13] dated June 29, 2004, the OP adopted by reference the findings and

recommendations of PAGC. The dispositive portion thereof reads:

WHEREFORE, as recommended by the PAGC, respondent Calixto R. Cataquiz, is hereby DISMISSED FROM THE SERVICE, with the accessory penalties of disqualification from re-employment to government service and forfeiture of retirement benefits, effective immediately upon receipt of this order.

SO ORDERED.

Aggrieved, Cataquiz filed his Motion for Reconsideration and/or for New Trial[14]






dated August 4, 2004, arguing that: (1) prior to the issuance by the PAGC of its

Resolution and by the OP of its Decision, he was already removed from office, thereby

making the issue moot and academic; and (2) he cannot be found guilty for violating a

resolution which was foreign to the charges against him or for acts which did not

constitute sufficient cause for his removal in office, as shown by acts and documents

which subsequently became available to him, entitling him to a new trial.

On February 10, 2005, the OP issued an Amended Resolution,[15] imposing on Cataquiz

the penalties of disqualification from re-employment in the government service and

forfeiture of retirement benefits, in view of the fact that the penalty of dismissal was no

longer applicable to him because of his replacement as General Manager of the LLDA.

Cataquiz elevated his case to the CA via a petition for review[16] dated March 2, 2005,

raising the same issues presented in his Motion for Reconsideration and/or New Trial

before the OP.

The CA promulgated its Decision on January 31, 2008, which reversed and set aside the

Amended Resolution of the OP. In so resolving, the CA reasoned that the accessory

penalties of disqualification from employment in the government service and forfeiture

of retirement benefits could no longer be imposed because the principal penalty of

dismissal was not enforced, following the rule that the accessory penalty follows the

principal penalty. The CA also agreed with Cataquiz that he could not be held liable for

a violation of Board Resolution No. 68 of the LLDA, which when examined, was found

not to be related to fishpen awards. If at all, the applicable rule would be Board



Resolution No. 28, as suggested by Cataquiz himself. Said resolution though would be

an invalid basis because it was not approved by the President pursuant to Section 4(k) of

R.A. No. 4850 (An Act Creating the Laguna Lake Development Authority). Finally, the

CA found that the offenses charged against Cataquiz under R.A. No. 4850 constituted

acts that were within his authority as general manager of the LLDA to perform.

Not in conformity, the OP and the PAGC (petitioners) filed this petition for review.

After the submission of respondent’s comment[17] and the petitioners’ reply,[18]

Cataquiz filed an Urgent Motion for Judicial Notice[19] dated August 13, 2009 urging

the Court to take judicial notice of the Resolution[20] rendered by the Office of the

Ombudsman (Ombudsman) on November 30, 2004 which recommended the dismissal

of the charges against him for violation of R.A. No. 3019.

The Issues

Petitioners cite the following errors as grounds for the allowance of the petition:

I.

The Court of Appeals gravely erred when it reversed in toto the findings of the OP and PAGC without stating clearly and distinctly the reasons therefor, which is contrary to the Constitution and the Rules of Court; the findings of the Court of Appeals are conclusions without citation of specific evidence on which they are based.

II.





The Court of Appeals erred because its judgment is based on a misapprehension of facts;

III.

The Court of Appeals erred when it went beyond the issues of the case;

IV.

The findings of the Court of Appeals are contrary to the findings of the OP, PAGC and DENR Fact Finding Committee, [and]

V.

The OP and PAGC correctly found respondent to be unfit in public service, thus it did not err in imposing the accessory penalties of disqualification from employment in the government service and forfeiture of retirement benefits.[21]

Cataquiz, on the other hand, submits the following arguments in his Memorandum:

[22]

I.

The dismissal by the Ombudsman of the cases against the respondent under the same set of facts further constitute the law of the case between the parties which necessitates the dismissal of this appeal and further supports the correctness of the decision of the Court of Appeals.

II.

The Court of Appeals did not commit any error when it reversed the amended resolution of the petitioner Office of the President.[23]

The issues can be condensed into four essential questions:




(1) Whether the CA made an incorrect determination of the facts of the case warranting

review of its factual findings by the Court;

(2) Whether the dismissal by the Ombudsman of the charges against Cataquiz

serves as a bar to the decision of the OP;

(3) Whether Cataquiz can be made to suffer the accessory penalties of

disqualification from re-employment in the public service and forfeiture of government

retirement benefits, despite his dismissal from the LLDA prior to the issuance by the

PAGC and the OP of their decision and resolution, respectively; and

(4) Whether Cataquiz can be charged with a violation of Board Resolution No. 28,

despite the clerical error made by the PAGC in indicating the Board Resolution number

to be No. 68.

The Court’s Ruling

The Court finds merit in the petition.

Findings of fact of the appellate court

can be reviewed

As a general rule, only questions of law can be raised in a petition for review on

certiorari under Rule 45 of the Rules of Court.[24] Since this Court is not a trier of

facts, findings of fact of the appellate court are binding and conclusive upon this Court.

[25] There are, however, several recognized exceptions to this rule, namely:



(1) When the conclusion is a finding grounded entirely on speculation, surmises and conjectures;

(2) When the inference made is manifestly mistaken, absurd or impossible;

(3) Where there is a grave abuse of discretion;

(4) When the judgment is based on a misapprehension of facts;

(5) When the findings of fact are conflicting;

(6) When the Court of Appeals, in making its findings, went beyond the issues of the case, and the same is contrary to the admissions of both appellant and appellee;

(7) When the findings are contrary to those of the trial court;

(8) When the findings of fact are conclusions without citation of specific evidence on which they are based;

(9) When the facts set forth in the petition as well as in the petitioner’s main and reply briefs, are not disputed by the respondents; and

(10) When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record.[26] [Emphases supplied]

In this case, the findings of the CA are contrary to those of PAGC which recommended

Cataquiz’ dismissal for violating Section 3(e) of R.A. No. 3019, in relation to Section

46(b)(27), Chapter 6, Subtitle A, Title I, Book V of E.O. 292. Likewise, the

Investigating Team of the DENR also agreed that there exists evidence that could sustain

a finding of respondent’s violation of several laws and regulations.

The result of PAGC’s investigation, however, was simply brushed aside by the CA,


without citing any evidence on which its findings were based. In ignoring the

meticulous discussion of PAGC’s conclusions and in absolving Cataquiz from any

wrongdoing, the CA cavalierly declared as follows:

The petitioner likewise presented to us in support of his petition the argument that he had sufficient authority to do what had been complained against him. We have examined the charges against the provisions of R.A. No. 4850 and we found that the said acts could be sustained because they were within his powers as general manager of the Laguna Lake Development Authority as implied from express powers granted to him by the law. Moreover, the records of the Authority show that transactions resulting into contracts in the Authority’s trading activities have been done by previous general managers of the Authority even without prior approval by the board. Ordinary corporate practices likewise point out to the fact that a general manager, having the general management and control of its business and affairs, has implied and apparent authority to do acts or make any contracts in its behalf falling within the scope of the ordinary and usual business of the company, especially so when, relative to a contract that the petitioner had entered into with Phil-Tai Fishing and Trade Company, the Office of the Government Corporate Counsel had formally acceded thereto.[27]

As plain as that, without any analysis of the evidence on record or a comprehensive

discussion on how the decision was arrived at, the CA absolved Cataquiz of the acts he

was accused of committing during his service as General Manager of the LLDA.

Section 14, Article VIII of the 1987 Constitution mandates that decisions must clearly

and distinctly state the facts and the law on which it is based. Decisions of courts must

be able to address the issues raised by the parties through the presentation of a

comprehensive analysis or account of factual and legal findings of the court.[28] It is

evident that the CA failed to comply with these requirements. PAGC, in its Resolution

dated December 5, 2003, discussing each of the twelve allegations against Cataquiz,

determined that he should be dismissed from the government service and that he could

be held liable under Section 3(e) of R.A. No. 3019, in relation to Section 46(b)(27),

Chapter 6, Subtitle A, Title I, Book V of E.O. No. 292, to wit:



R.A. No. 3019

Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.


E.O. No. 292

Section 46. Discipline: General Provisions.

xxx

(b) The following shall be grounds for disciplinary action:

xxx (27) Conduct prejudicial to the best interest of the service

The one-paragraph pronouncement of the CA that Cataquiz had authority to perform the

acts complained of is grossly insufficient to overturn the determination by PAGC that he

should be punished for acts prejudicial to the LLDA committed during his service as

General Manager of the said agency. It should be emphasized that findings of fact of

administrative agencies will not be interfered with and shall be considered binding and

conclusive upon this Court provided that there is substantial evidence to support such

findings.[29] Substantial evidence has been defined as “that amount of relevant

evidence which a reasonable mind might accept as adequate to justify a conclusion”[30]



or “evidence commonly accepted by reasonably prudent men in the conduct of their

affairs.”[31]

After a diligent review of the evidence presented and the pleadings filed, this Court finds

that there is substantial evidence to justify the conclusion of PAGC that Cataquiz should

be punished with the penalty of dismissal, along with its accessory penalties, for

committing acts prejudicial to the best interest of the government and for giving undue

advantage to a private company in the award of fishpens. Thus, the PAGC was correct

when it wrote:

I.

[I]n the first allegation, respondent Cataquiz impliedly admitted his direct transaction with 35 fishpen operators and the payment of fishpen fees without conducting a public bidding. In respondent’s defense, he raised the invalidity of Board Resolution No. 68 [sic] which provides for guidelines in public bidding for fishpen areas. Respondent argued that Board Resolution No. 68 [sic] is an unreasonable exercise of the Board’s legislative power since public bidding has never been intended by RA 4850, the enabling law of LLDA.

The Commission finds the contention of the respondent bereft of merit. Section 25-A of RA 4850 authorizes the Board to “formulate, prescribe, amend and repeal rules and regulations to govern the conduct of business of the Authority” and it is the function of the respondent in his capacity as General Manager “to implement and administer the policies, programs and projects approved by the Board” pursuant to Section 26 (b) of RA 4850. While it is true that a Board Resolution draws life from the enabling statute, the Commission cannot find any inconsistency between the former and the latter. The Board Resolution No. 68 [sic] is still within the bounds of RA 4850 and is germane to its purpose in promoting a balanced growth of the w:st="on"Laguna Lake. Thus, the validity of the questioned Resolution stands. It becomes now the duty of the respondent to implement the Resolution and not to question its legality nor disregard it.

In the case at hand, respondent’s act of not giving credence to the Board Resolution resulted to undue prejudice to the best interest of the public service considering that the Authority incurred Revenue loss from the direct transaction of respondent Cataquiz amounting to Seven Hundred Fifty Five Thousand Seven Hundred Pesos ₱755,700.00.

The presumption that the official duty has been regularly performed was overcome by the fact


that the government was deprived of much needed revenue as a result of the act committed by respondent Cataquiz.

xxxx

III.

The Commission finds that the act of respondent Cataquiz in condoning penalties and reducing the fines imposed by the Public Hearing Committee (PHC) of the LLDA has no basis in law. The premise of the respondent citing Section 26 (b) giving him the executive prerogative and Section 4 (a) justifying the condonation and reduction is misplaced. A careful examination of the aforementioned provisions would reveal that Section 26 (b) does not vest the respondent the executive prerogative. Said provision gives him the authority to execute and administer the policies, plans, programs and projects approved by the Board. There is no showing that the condonation of penalties and reduction of fines has been approved by the Board. Section 26 (b) is clear in its terms that before respondent executes any policy, program or project, the same has to be approved by the Board. Thus, there is no executive prerogative to speak of.

The Commission agrees with the contention of the complainant that Section 4 (d) refers to additional power and function of the Authority and not to the respondent. Of equal importance is that Section 4 (d) does not confer him the authority to condone penalties nor reduce fines. Said provision is referring to Orders requiring the discontinuance of pollution. When the law is clear it needs no further interpretation.

The contention of respondent Cataquiz that there is nothing in Section 25-A that states that the approval of the Board is necessary has no leg to stand on. Same provision gives the Board the implied power “to do such other acts and perform such other functions as may be necessary to carry out the provisions of this Charter.”

In relation to this is Section 31 of RA 4850 that gives the Board the authority to create such other divisions and positions as may be deemed necessary for the efficient, economic and effective conduct of the activity of the Authority.

The findings of the PHC, although a recommendatory body, must be accorded great respect. The penalties imposed by the PHC cannot be substituted by the respondent without any basis and the latter cannot simply claim that he has the sole authority to condone penalties and reduce fines.

Evidently respondent’s act of condonation of penalties and reduction of fines was uncalled for. Thus, his act resulted to undue prejudice to the best interest of the service and will set a dangerous precedent to the justice system of the government.

IV.

In the same vein, the dismissal of the pending case against Twenty First Century Resources Inc. by the respondent has no basis in law. Section 26 of RA 4850 clearly enumerates the powers and functions of respondent, to wit:

“xxx.

a. Submit for consideration of the Board the policies and measures which he believes to be necessary to carry out the purposes and provisions of this Act;

b. Execute and administer the policies, plan, programs and projects approved by the Board;

c. Direct and supervise the operation and internal administration of the Authority. The General Manager may delegate certain administrative responsibilities to other officers of the Authority subject to the rules and regulations of the Board;

d. Appoint officials and employees below the rank of division heads to positions in the approved budget upon written recommendation of the division head concerned using as guide the standard set forth in the Authority’s merit system;

e. Submit quarterly reports to the Board on personnel selection, placement and training;

f. Submit to the NEDA an annual report and such other reports as may be required, including the details of the annual and supplemental budgets of the Authority;

g. Perform such other functions as may be provided by law.”

From the aforementioned section, nowhere can the Commission find any grant of power to adjudicate in favor of respondent Cataquiz and the latter cannot hide under the cloak of ‘managerial prerogative’ absent any law that justifies his act of dismissing the case. To reiterate, the dismissal of the case against Twenty First Century is an act clearly prejudicial to

the best interest of the service. Consequently, the Authority was deprived of a committed service to the government and this fact cannot be overlooked upon by the Commission.

xxxx

VI.

The contract of service for consultancy duly signed by the respondent and the legal consultants of LLDA is not in accordance with Section 212 of the Government Accounting and Auditing Manual (GAAM) 86 which provides that:

“Payment of public funds of retainer fees of private law practitioners who are so hired and employed without the prior written concurrence and acquiescence by the Solicitor General of the Government Corporate Counsel, as the case may be, as well as the written concurrence of the Commission on Audit, shall be disallowed in audit and the same shall be a personal liability of the official concerned.”

The contention of the respondent that the LLDA Administrative Section failed to advise him regarding the requisites laid down by law cannot stand. Occupying an executive position, respondent is required to exercise diligence in the highest degree in the performance of his duties. Respondent cannot pass responsibility to other Division which in the first place, he has supervision and control of, pursuant to Section 31 of RA 4850. Supervision as defined is the overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform their duties. Control on the other hand, is the power of an officer to alter or modify or nullify or set aside what a subordinate officer has done in the performance of his duties and to substitute the judgment of the former for that of the latter. There is therefore a given authority to the respondent by law to regulate the acts of the Administrative Division and respondent cannot simply evade responsibility by invoking the shortcomings of his subordinates. In signing the contract, without verifying compliance of existing laws, respondent falls short of the required competence expected of him in the performance of his official functions. Incompetence, has been defined as ‘lack of ability, legal qualification or fitness to discharge the required duty; want of physical or intellectual or moral fitness.’

xxxx

VIII.

The Commission finds that the transaction entered into by the respondent and Phil-Tai Fishing and Trade Company is violative of Section 3 (e) of RA 3019. The elements of Section 3 (e) are as follows:

1. The accused is a public officer discharging official administrative, or judicial functions or private persons in conspiracy with them;

2. The public officer committed the prohibited act during the performance of his official duty or in relation to his public position;

3. The public officer acted with manifest partiality, evident bad faith or gross inexcusable negligence; and

4. His action caused undue injury to the Government or any private party or gave any party any unwarranted benefit, advantage or preference.

Applying the first element, respondent Cataquiz is a public officer within the legal term of RA 3019 which provides that “Public officer includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt from service receiving compensation, even nominal from the government xxx.” Clearly, respondent is a public officer discharging official functions in transacting with Phil-Tai to occupy and utilize portions of LLDA facilities locate (sic) at Km. 70 Brgy. Bangyas, Calauan, Laguna.

Relating to the second element in the instant case, respondent in the exercise of his official duties allowed Phil-Tai to use the LLDA facility without the concurrence of the Board of Directors of LLDA where the corporate powers of the Authority lies as explicitly provided in Section 16 of RA 4850.

Applying the third element, respondent Cataquiz acted with manifest partiality when by reason of his office he allowed Phil-Tai to occupy the LLDA facility without any contract and without the approval of the Board of Directors. The privilege granted was by virtue of a joint venture proposal which was never authorized by the Board as admitted by the respondent in his position paper. In fact the proposal is still awaiting resolution from the board. Partiality is synonymous with “bias” which excites a disposition to see and report matters as they are wished for rather than as they are.

Manifest means “obvious to the understanding, evident to the mind, not obscure or hidden and is synonymous with open, clear, visible, unmistakable, indubitable, indisputable, evident and self-evident.”

There was manifest partiality when respondent Cataquiz entered a transaction with Phil-Tai disregarding the requirements set forth by RA 4850 which requires the approval of the Board. Worse, the joint venture proposal by Phil-Tai which was accepted by the respondent took place without any contract at all. The contention of the respondent that Phil-Tai is only given the authority to conduct a preliminary study and including the technical survey and Pilot testing at the aforesaid facility for the purpose of determining its structural integrity and commercial viability cannot prevail over the records available at hand.

The findings of DENR officials in their ocular inspection on May 13, 2003 would disclose that Phil-Tai is in actual possession of the LLDA facility and personally witnessed the actual harvesting of tilapia from the fishpond owned by LLDA. The report of DENR officials contains that the act of the respondent is prejudicial to the interest of the government mainly because there was no contract executed between LLDA and Phil-Tai.

Moreover, the Memorandum from the Division Chief III Jose K. Cariño III of the Community Development Division would reveal that Phil-Tai is introducing exotic aquatic species in one of the earthen ponds at LLDA Calauan Complex. RA 8550 otherwise known as the Philippine Fisheries Code of 1998 provides that the introduction of foreign crustaceans such as crayfish in Philippine waters without a sound ecological, biological and environmental justification based on scientific studies is prohibited. There is, therefore, an unwarranted act by Phil-Tai which is prejudicial to the government.

Applying the fourth element in the case at bar, respondent Cataquiz gave Phil-Tai unwarranted benefit, advantage or preference when he entertained the joint venture proposal without any consideration. In fact, as stated in respondent’s position paper, LLDA was assured by Phil-Tai that in the event the agreement does not materialize, it will remove all its equipment without damage to the LLDA aqua culture facilities. Be it noted that the assurance was not made in writing.

Respondent refused to discern the adverse consequences of the joint venture proposal considering that no available remedy was left to the government in case of untoward incidents that may arise. The transaction entered into is at most unenforceable because the agreements therein was (sic) not put into writing. The transaction cannot be tolerated by the Commission and the unwarranted benefit that Phil-Tai is enjoying deserves much consideration because it puts the government into a very disadvantageous situation.

xxxx

X.

The Commission finds that the promotion of the film entry of RVQ Productions by respondent Cataquiz does not offend Section 7 (d) of RA 6713 which provides as follows:

“Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties, or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office.”

There was no undue solicitation of patronage of the film considering that the tickets sold are voluntary participation of interested employees. In fact, no monetary consideration was received nor accepted by the respondent.

Of important consideration, however, is the use of government vehicles in the delivery of movie tickets and the collection of payments thereof to different industrial establishments. Respondent Cataquiz in his official capacity as the General Manager of LLDA, approved the use of government vehicles and drivers for the promotion of the movie.

The impropriety of using government property in favor of a (sic) RVQ Production, a private entity cannot be countenanced as this is prejudicial to the best interest of the service. The very purpose of the use of the government property has not been properly served. [32] [Underscoring supplied]

xxxx

The dismissal of the criminal case against

Respondent does not bar the finding

of administrative liability.

Cataquiz claims that the dismissal by the Ombudsman of the case against him

constitutes the law of the case between him and the OP which necessitates the dismissal

of the petition before this Court.

At the outset, the Court would like to highlight the fact that Cataquiz never raised this

issue before the CA, despite having had ample time to do so. The records show that the

Ombudsman promulgated its resolution on November 30, 2004, more than three months

prior to the filing by the respondent of his petition before the CA on March 2, 2005.[33]



Nevertheless, he only chose to mention this after the CA had rendered its decision and

after the submission of his comment on the petition at bench. This is evidently a

desperate effort on his part to strengthen his position and support the decision of the CA

exonerating him from any administrative liability. The Court has consistently ruled that

issues not previously ventilated cannot be raised for the first time on appeal.[34]

Otherwise, to consider such issues and arguments belatedly raised by a party would be

tantamount to a blatant disregard of the basic principles of fair play, justice and due

process.[35] Therefore, this issue does not merit the attention of the Court.

Even if the Court were to overlook this procedural lapse, Cataquiz’ argument would still

fail. The Ombudsman Resolution dated November 30, 2004 recommending the

dismissal of the charges against him pertains only to the criminal case against him and

not the administrative case, which is the subject matter of the case at bench. As can be

gleaned from the Resolution, the charges referred to by the Ombudsman were for

respondent’s alleged violation of Section 3(b) and (c) of R.A. No. 3019 or for

malversation of public funds and fraud against the public treasury.[36]

It is a basic rule in administrative law that public officials are under a three-fold

responsibility for a violation of their duty or for a wrongful act or omission, such that

they may be held civilly, criminally and administratively liable for the same act.[37]

Obviously, administrative liability is separate and distinct from penal and civil liability.

[38] In the case of People v. Sandiganbayan,[39]the Court elaborated on the difference

between administrative and criminal liability:

The distinct and independent nature of one proceeding from the other can be attributed to the following: first, the difference in the quantum of evidence required and, correlatively, the procedure observed and sanctions imposed; and second, the principle that a single act may offend against two or more distinct and related provisions of law, or that the same act may







give rise to criminal as well as administrative liability.[40]

Accordingly, the dismissal of the criminal case by the Ombudsman does not

foreclose administrative action against Cataquiz.[41] His absolution from criminal

liability is not conclusive upon the OP, which subsequently found him to be

administratively liable. The pronouncement made by the Ombudsman cannot serve to

protect the respondent from further administrative prosecution. A contrary ruling would

be unsettling as it would undermine the very purpose of administrative proceedings, that

is, to protect the public service and uphold the time-honored principle that a public

office is a public trust.[42]

Respondent can be imposed with

the accessory penalties.

Removal or resignation from office is not a bar to a finding of administrative

liability.[43] Despite his removal from his position, Cataquiz can still be held

administratively liable for acts committed during his service as General Manager of the

LLDA and he can be made to suffer the corresponding penalties. The subsequent finding

by the OP that Cataquiz is guilty of the charges against him with the imposition of the

penalty of dismissal and its corresponding accessory penalties is valid.

It cannot be disputed that Cataquiz was a presidential appointee.[44] As such, he was

under the direct disciplining authority of the President who could legitimately have him

dismissed from service. This is pursuant to the well-established principle that the

President’s power to remove is inherent in his power to appoint.[45] Therefore, it is well

within the authority of the President to order the respondent’s dismissal.







Cataquiz argues that his removal has rendered the imposition of the principal

penalty of dismissal impossible. Consequently, citing the rule that the accessory follows

the principal, he insists that the accessory penalties may no longer be imposed on him.

[46]

The respondent is mistaken.

In the case of In Re: Complaint of Mrs. Corazon S. Salvador against Spouses Noel and

Amelia Serafico,[47] despite the resignation from government service by the employee

found guilty of grave misconduct, disgraceful and immoral conduct and violation of the

Code of Conduct for Court Personnel, thereby making the imposition of the penalty of

dismissal impossible, this Court nevertheless imposed the accessory penalties of

forfeiture of benefits with prejudice to re-employment in any branch or instrumentality

of government.

Similarly instructive is the case of Pagano v. Nazarro, Jr.[48] where the Court held that:

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.[49]

Based on the foregoing, it is clear that the accessory penalties of disqualification

from re-employment in public service and forfeiture of government retirement benefits

can still be imposed on the respondent, notwithstanding the impossibility of effecting the

principal penalty of dismissal because of his removal from office.





PAGC’s typographical error

can be corrected.

One of the charges against Cataquiz is for directly transacting with 35 fishpen

operators and authorizing payment of fishpen fees based on negotiated prices, in

contravention of the directive of Board Resolution No. 28, which requires the conduct of

a public bidding. The PAGC Resolution dated December 5, 2003, recommending the

dismissal of Cataquiz erroneously indicated that he violated Board Resolution No. 68,

instead of No. 28.[50] The CA then sustained his contention that he could not be found

guilty for violating Board Resolution No. 68 of the LLDA because such resolution was

not related to fishpen awards and that his right to due process was violated when the OP

found him guilty of violating the said resolution. It further added that even if the

respondent was charged with acting in contravention with Board Resolution No. 28, the

said resolution would be invalid for not having been duly approved by the President.

Petitioners, however, claim that it was merely a typographical or clerical error on

the part of PAGC which was unfortunately adopted by the OP.[51] Cataquiz apparently

will not be unduly prejudiced by the correction of the PAGC resolution. In the counter-

affidavit he filed before the PAGC, he was able to exhaustively argue against the

allegation that he had violated Board Resolution No. 28.[52] Hence, he cannot feign

ignorance of the true charges against him.

In this regard, the Court agrees with the petitioners.




It is clear from the pleadings submitted before PAGC – particularly in the Affidavit

Complaint filed by CELLDA against Cataquiz and in the Counter-Affidavit submitted

by the latter – that the resolution referred to as having been violated by the respondent

was Board Resolution No. 28, and not No. 68, as was erroneously indicated in the PAGC

Resolution. Thus, pursuant to the rule that the judgment should be in accordance with

the allegations and the evidence presented,[53] the typographical error contained in the

PAGC Resolution can be amended. Clerical errors or any ambiguity in a decision can be

rectified even after the judgment has become final by reference to the pleadings filed by

the parties and the findings of fact and conclusions of law by the court.[54]

A careful perusal of the PAGC’s discussion on the violation of the questioned

board resolution discloses that PAGC was undoubtedly referring to Board Resolution

No. 28 which approved the policy guidelines for public bidding of the remaining free

fishpen areas in Laguna de Bay, and not Resolution No. 68 which had nothing at all to

do with fishpen awards. Therefore, the reference to Board Resolution No. 68, instead of

Board Resolution No. 28, in the PAGC Resolution is unmistakably a typographical error

on the part of PAGC but, nonetheless, rectifiable.

Moreover, the respondent’s counter-affidavit shows that he had knowledge of the fact

that he was being charged with violation of Board Resolution No. 28. He even argued

that the said resolution was an invalid and illegal administrative rule. His position was

that the resolution issued by the Board of Directors of LLDA was an unreasonable

exercise of its legislative power because the enabling law of LLDA, R.A. No. 4850, did

not require the public bidding of free fishpen areas.[55] Then, in his motion for

reconsideration before the OP, he argued that the resolution was invalid because it was

never approved by the President, contrary to Section 4(k) of R.A. No. 4850 (as amended

by Presidential Decree No. 813) which provides:




(K) For the purpose of effectively regulating and monitoring activities in Laguna de Bay. The Authority shall have exclusive jurisdiction to issue new permit for the use of the lake waters for any projects or activities in/or affecting the said lake including navigation, construction, and operation of fishpens, fish enclosures, fish corrals and the like, and to impose necessary safeguards for lake quality control and management and to collect necessary fees for said activities and projects: Provided, That the fees collected for fisheries may be shared between the Authority and other government agencies and political subdivisions in such proportion as may be determined by the President of the Philippines upon recommendation of the Authority’s Board: Provided further, That the Authority’s Board may determine new areas of fishery development or activities which it may place under the supervision of the Bureau of Fisheries and Aquatic Resources taking into account the overall development plans and programs for Laguna de Bay and related bodies of water: Provided, finally, That the Authority shall subject to the approval of the President of the Philippines promulgate such rules and regulations which shall govern fisheries development activities in Laguna de Bay which shall take into consideration among others the following: socio-economic amelioration of bona-fide resident fishermen whether individually or collectively in the form of cooperatives, lakeshore town development, a master plan for fish construction and operation, communal fishing ground for lakeshore town residents, and preference to lakeshore town residents in hiring laborers for fishery projects. [Emphasis supplied]

Regrettably, the CA sustained the respondent’s argument. A careful examination of the

abovementioned law shows that presidential approval is only required for rules and

regulations which shall govern fisheries development activities in Laguna de Bay. The

question then is whether Board Resolution No. 28 falls under that category of rules

subject to approval by the President. The answer is in the negative.

The Revised Laguna de Bay Zoning and Management Plan[56] allocated 10,000

hectares of the lake surface areas for fishpen operators. In the event that the area would

not be fully occupied after all qualified operators had been assigned their respective

fishpen areas, the residual free areas would be opened for bidding to other prospective

qualified applicants. Accordingly, Board Resolution No. 28 simply set forth the

guidelines for the public bidding of the remaining free fishpen areas in Laguna de Bay.


[57] It did not require presidential approval because it did not regulate any fisheries

development activities. Hence, the questioned resolution cannot be declared invalid on

the basis of the CA’s ratiocination that the resolution lacked the approval of the

President.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals is

REVERSED and SET ASIDE and another judgment entered reinstating the June 29,

2004 Decision of the Office of the President, as amended by its February 10, 2005

Amended Resolution.

SO ORDERED.

JOSE CATRAL w:st="on"MENDOZA

Associate Justice

THE CIVIL SERVICE G.R. No. 187858COMMISSION, Petitioner, Present:

CORONA, C.J.,

CARPIO,

velasco, JR.,

leonardo-de castro, brion,

PERALTA,

- versus - BERSAMIN,

DEL CASTILLO,*

ABAD,**

http://sc.judiciary.gov.ph/jurisprudence/2011/august2011/187858.htm#_ftn2



VILLARAMA, JR.,

perez,

mendoza,** and

sereno, JJ.

Promulgated:

RICHARD G. CRUZ,

Respondent. August 9, 2011

x---------------------------------------------------------------------------------------x

D E C I S I O N BRION, J.:

This petition for review on certiorari assails the decision[1] and the resolution[2] of the Court of Appeals (CA) in CA-G.R. SP No. 105410. These assailed CA rulings reversed and set aside the ruling of the Civil Service Commission (CSC) in Resolution No. 080305[3] that denied respondent Richard G. Cruz’s prayer for the award of back salaries as a result of his reinstatement to his former position.

THE FACTS

style="text-decoration:

none"

The respondent, Storekeeper A of the City of Malolos Water District (CMWD), was charged with

grave misconduct and dishonesty by CMWD General Manager (GM) Nicasio Reyes. He allegedly

uttered a false, malicious and damaging statement (Masasamang tao ang mga BOD at General

Manager) against GM Reyes and the rest of the CMWD Board of Directors (Board); four of the

respondent’s subordinates allegedly witnessed the utterance. The dishonesty charge, in turn, stemmed

from the respondent’s act of claiming overtime pay despite his failure to log in and out in the

computerized daily time record for three working days.

The respondent denied the charges against him. On the charge of grave misconduct, he stressed

that three of the four witnesses already retracted their statements against him. On the charge of

dishonesty, he asserted that he never failed to log in and log out. He reasoned that the lack of record




was caused by technical computer problems. The respondent submitted documents showing that he

rendered overtime work on the three days that the CMWD questioned.

GM Reyes preventively suspended the respondent for 15 days. Before the expiration of his

preventive suspension, however, GM Reyes, with the approval of the CMWD Board, found the

respondent guilty of grave misconduct and dishonesty, and dismissed him from the service.[4]


CSC RULING


The respondent elevated the findings of the CMWD and his dismissal to the CSC, which

absolved him of the two charges and ordered his reinstatement. In CSC Resolution No. 080305, the

CSC found no factual basis to support the charges of grave misconduct and dishonesty.

In ruling that the respondent was not liable for grave misconduct, the CSC held:

Cruz was adjudged guilty of grave misconduct for his alleged utterance of such maligning statements, “MASASAMANG TAO ANG MGA BOD AT GENERAL MANAGER”. However, such utterance, even if it were true, does not constitute a flagrant disregard of rule or was actuated by corrupt motive. To the mind of the Commission, it was a mere expression of disgust over the management style of the GM and the Board of Directors, especially when due notice is taken of the fact that the latter officials were charged with the Ombudsman for various anomalous transactions.[5]

In ruling that the charge of dishonesty had no factual basis, the CSC declared:

Based on the records of the case, the Commission is not swayed that the failure of Cruz to record his attendance on April 21 and 22, 2007 and May 5, 2007, while claiming overtime pay therefor, amounts to dishonesty. Cruz duly submitted evidence showing his actual rendition of work on those days. The residents of the place where he worked attested to his presence thereat on the days in question.[6]

The CSC, however, found the respondent liable for violation of reasonable office rules for his failure to log in and log out. It imposed on him the penalty of reprimand but did not order the payment of back salaries.

The CMWD and the respondent separately filed motions for reconsideration against the CSC ruling. CMWD questioned the CSC’s findings and the respondent’s reinstatement. The respondent, for his part, claimed that he is entitled to back salaries in light of his exoneration from the charges of grave misconduct and dishonesty. The CSC denied both motions.

Both the CMWD and the respondent elevated the CSC ruling to the CA via separate petitions for review under Rule 43 of the Rules of Court. The CA dismissed the CMWD’s petition and this ruling has lapsed to finality.[7] Hence, the issue of reinstatement is now a settled matter. As outlined below, the CA ruled in the respondent’s favor on the issue of back salaries. This ruling is the subject of the




present petition with us.

CA RULING


Applying the ruling in Bangalisan v. Hon. CA,[8] the CA found merit in the respondent’s appeal and awarded him back salaries from the time he was dismissed up to his actual reinstatement. The CA reasoned out that CSC Resolution No. 080305 totally exonerated the respondent from the charges laid against him. The CA considered the charge of dishonesty successfully refuted as the respondent showed that he performed overtime service. The CA thereby rejected the CSC’s contention that the charge of dishonesty had been merely downgraded to a lesser offense; the CA saw the finding in CSC Resolution No. 080305 to be for an offense (failing to properly record his attendance) entirely different from the dishonesty charge because their factual bases are different. Thus, to the CA, CSC Resolution No. 080305 did not wholly restore the respondent’s rights as an exonerated employee as it failed to order the payment of his back salaries. The CA denied the CSC’s motion for reconsideration.

ISSUE


WHETHER OR NOT [THE] RESPONDENT IS ENTITLED TO BACK SALARIES AFTER THE CSC ORDERED HIS REINSTATEMENT TO HIS FORMER POSITION, CONSONANT WITH THE CSC RULING THAT HE WAS GUILTY ONLY OF VIOLATION OF REASONABLE OFFICE RULES AND REGULATIONS.[9]

CSC’s position

The CSC submits that the CA erred in applying the ruling in Bangalisan, requiring as a condition

for entitlement to back salaries that the government employee be found innocent of the charge and that

the suspension be unjustified. CSC Resolution No. 080305 did not fully exculpate the respondent but

found him liable for a lesser offense. Likewise, the respondent’s preventive suspension pending appeal

was justified because he was not exonerated.

The CSC also submits that the factual considerations in Bangalisan are entirely different from

the circumstances of the present case. In Bangalisan, the employee, Rodolfo Mariano, a public school

teacher, was charged with grave misconduct for allegedly participating, together with his fellow

teachers, in an illegal mass action. He was ordered exonerated from the misconduct charge because of



proof that he did not actually participate in the mass action, but was absent from work for another

reason. Although the employee was found liable for violation of office rules and regulations, he was

considered totally exonerated because his infraction stemmed from an act entirely different (his failure

to file a leave of absence) from the act that was the basis of the grave misconduct charge (the

unjustified abandonment of classes to the prejudice of the students).

The CSC argues that in the present case, the charge of dishonesty and the infraction committed by the respondent stemmed from a single act – his failure to properly record his attendance. Thus, the respondent cannot be considered totally exonerated; the charge of dishonesty was merely downgraded to a violation of reasonable office rules and regulations.

Accordingly, the CSC posits that the case should have been decided according to our rulings in

Jacinto v. CA[10] and De la Cruz v. CA[11] where we held the award of back salaries to be

inappropriate because the teachers involved were not fully exonerated from the charges laid against

them.

The respondent’s position

The respondent maintains that he is entitled to reinstatement and back salaries because CSC

Resolution No. 080305 exonerated him from the charges laid against him; for the purpose of

entitlement to back salaries, what should control is his exoneration from the charges leveled against

him by the CMWD. That the respondent was found liable for a violation different from that originally

charged is immaterial for purposes of the back salary issue.

The respondent also asserts that the Bangalisan ruling squarely applies since the CSC formally

admitted in its Comment to CMWD’s petition for review before the CA that the penalty of reprimand is

not a reduced penalty for the penalty of dismissal imposable for grave misconduct and dishonesty.[12]

THE COURT’S RULING




We deny the petition for lack of merit.

The issue of entitlement to back salaries, for the period of suspension pending appeal,[13] of a

government employee who had been dismissed but was subsequently exonerated is settled in our

jurisdiction. The Court’s starting point for this outcome is the “no work-no pay” principle – public

officials are only entitled to compensation if they render service. We have excepted from this general

principle and awarded back salaries even for unworked days to illegally dismissed or unjustly

suspended employees based on the constitutional provision that “no officer or employee in the civil

service shall be removed or suspended except for cause provided by law”;[14] to deny these

employees their back salaries amounts to unwarranted punishment after they have been exonerated

from the charge that led to their dismissal or suspension.[15]

The present legal basis for an award of back salaries is Section 47, Book V of the Administrative Code

of 1987.

Section 47. Disciplinary Jurisdiction. – x x x.

(4) An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal. (italics ours)

This provision, however, on its face, does not support a claim for back salaries since it does not

expressly provide for back salaries during this period; our established rulings hold that back salaries

may not be awarded for the period of preventive suspension[16] as the law itself authorizes its

imposition so that its legality is beyond question.

To resolve the seeming conflict, the Court crafted two conditions before an employee may be entitled

to back salaries: a) the employee must be found innocent of the charges and b) his suspension must be

unjustified.[17] The reasoning behind these conditions runs this way: although an employee is

considered under preventive suspension during the pendency of a successful appeal, the law itself only






authorizes preventive suspension for a fixed period; hence, his suspension beyond this fixed period is

unjustified and must be compensated.

The CSC’s rigid and mechanical application of these two conditions may have resulted from a

misreading of our rulings on the matter; hence, a look at our jurisprudence appears in order.

Basis for award of back salaries

The Court had the occasion to rule on the issue of entitlement to back salaries as early as 1941,[18] when Section 260 of the Revised Administrative Code of 1917 (RAC)[19] was the governing law. The Court held that a government employee, who was suspended from work pending final action on his administrative case, is not entitled to back salaries where he was ultimately removed due to the valid appointment of his successor. No exoneration or reinstatement, of course, was directly involved in this case; thus, the question of back salaries after exoneration and reinstatement did not directly arise. The Court, however, made the general statement that:

As a general proposition, a public official is not entitled to any compensation if he has not rendered any service, and the justification for the payment of salary during the period of suspension is that the suspension was unjustified or that the official was innocent. Hence, the requirement that, to entitle to payment of salary during suspension, there must be either reinstatement of the suspended person or exoneration if death should render reinstatement impossible.[20] (emphasis and underscoring ours)

In Austria v. Auditor General,[21] a high school principal, who was penalized with demotion, claimed

payment of back salaries from the time of his suspension until his appointment to the lower position to

which he was demoted. He argued that his later appointment even if only to a lower position of

classroom teacher amounted to a reinstatement under Section 260 of the RAC. The Court denied his

claim, explaining that the reinstatement under Section 260 of the RAC refers to the same position from

which the subordinate officer or employee was suspended and, therefore, does not include demotional

appointments. The word “reinstatement” was apparently equated to exoneration.

In the 1961 case of Gonzales v. Hon. Hernandez, etc. and Fojas[22] interpreting the same

provision, the Court first laid down the requisites for entitlement to back salaries. Said






the Court:

A perusal of the decisions of this Court[23] x x x show[s] that back salaries are ordered paid to an officer or an employee only if he is exonerated of the charge against him and his suspension or dismissal is found and declared to be illegal. In the case at bar, [the employee] was not completely exonerated, because although the decision of the Commissioner of Civil Service [ordering separation from service] was modified and [the employee] was allowed to be reinstated, the decision [imposed upon the employee the penalty of two months suspension without pay]. [emphasis and underscoring ours]

Obviously, no exoneration actually resulted and no back salary was due; the liability for the offense

charged remained, but a lesser penalty was imposed.

In Villamor, et al. v. Hon. Lacson, et al.,[24] the City Mayor ordered the dismissal from the service of city employees after finding them guilty as charged. On appeal, however, the decision was modified by considering “the suspension of over one year x x x, already suffered x x x [to be] sufficient punishment”[25] and by ordering their immediate reinstatement to the service. The employees thereupon claimed that under Section 695 of the RAC, the punishment of suspension without pay cannot exceed two (2) months. Since the period they were not allowed to work until their reinstatement exceeded two months, they should be entitled to back salaries corresponding to the period in excess of two months. In denying the employees’ claim for back salaries, the Court held:

The fallacy of [the employees’] argument springs from their assumption that the modified decision had converted the penalty to that of suspension. The modified decision connotes that although dismissal or resignation would be the proper penalty, the separation from work for the period until their reinstatement, would be deemed sufficient. Said decision did not, in the least, insinuate that suspension should have been the penalty.

x x x [T]he modified decision did not exonerate the petitioners. x x x And even if we consider the punishment as suspension, before a public official or employee is entitled to payment of salaries withheld, it should be shown that the suspension was unjustified or that the employee was innocent of the charges proffered against him.[26]

On the whole, these rulings left the application of the conditions for the award of back salaries far from clear. Jurisprudence did not strictly observe the requirements earlier enunciated in Gonzales as under subsequent rulings, the innocence of the employee alone served as basis for the award of back salaries.

The innocence of the employee as sole basis for an award of





back salaries

In Tan v. Gimenez, etc., and Aguilar, etc.,[27] we ruled that the payment of back salary to a government employee, who was illegally removed from office because of his eventual exoneration on appeal, is merely incidental to the ordered reinstatement.

Tan was subsequently reiterated in Tañala v. Legaspi, et al.,[28] a case involving an employee who was administratively dismissed from the service following his conviction in the criminal case arising from the same facts as in the administrative case. On appeal, however, he was acquitted of the criminal charge and was ultimately ordered reinstated by the Office of the President. Failing to secure his actual reinstatement, he filed a mandamus petition to compel his superiors to reinstate him and to pay his back salaries from the date of his suspension to the date of his actual reinstatement. We found merit in his plea and held:

[The employee] had been acquitted of the criminal charges x x x, and the President had reversed the decision x x x in the administrative case which ordered his separation from the service, and the President had ordered his reinstatement to his position, it results that the suspension and the separation from the service of the [employee] were thereby considered illegal. x x x.

x x x [In this case,] by virtue of [the President’s order of reinstatement], [the employee’s] suspension and separation from the service x x x was thereby declared illegal, so that for all intents and purposes he must be considered as not having been separated from his office. The lower court has correctly held that the [employee] is entitled to back salaries.[29]

The Tañala ruling was reiterated in Cristobal v. Melchor,[30] Tan, Jr. v. Office of the President,[31] De Guzman v. CSC[32] and Del Castillo v. CSC[33] - cases involving government employees who were dismissed after being found administratively liable, but who were subsequently exonerated on appeal.

In Garcia v. Chairman Commission on Audit,[34] the Court held that – where the employee, who was

dismissed after being found administratively liable for dishonesty, was acquitted on a finding of

innocence in the criminal case (for qualified theft) based on the same acts for which he was dismissed –

the executive pardon granted him in the administrative case (in light of his prior acquittal) entitled him

to back salaries from the time of his illegal dismissal up to his actual reinstatement.









The above situation should be distinguished from the case of an employee who was dismissed from the

service after conviction of a crime and who was ordered reinstated after being granted pardon. We held

that he was not entitled to back salaries since he was not illegally dismissed nor acquitted of the charge

against him.[35]

Incidentally, under the Anti-Graft and Corrupt Practices Act,[36] if the public official or

employee is acquitted of the criminal charge/s specified in the law, he is entitled to

reinstatement and the back salaries withheld during his suspension, unless in the

meantime administrative proceedings have been filed against him.

In Tan, Jr. v. Office of the President,[37] the Court clarified that the silence of Section 42 (Lifting of

Preventive Suspension Pending Administrative Investigation) of the Civil Service Decree[38] on the

payment of back salaries, unlike its predecessor,[39] is no reason to deny back salaries to a dismissed

civil servant who was ultimately exonerated.

Section 42 of P.D. No. 807, however, is really not in point x x x [as] it does not cover dismissed civil servants who are ultimately exonerated and ordered reinstated to their former or equivalent positions. The rule in the latter instance, just as we have said starting with the case of Cristobal vs. Melchor is that when "a government official or employee in the classified civil service had been illegally dismissed, and his reinstatement had later been ordered, for all legal purposes he is considered as not having left his office, so that he is entitled to all the rights and privileges that accrue to him by virtue of the office that he held."[40]

These cited cases illustrate that a black and white observance of the requisites in Gonzales is not

required at all times. The common thread in these cases is either the employee’s complete exoneration

of the administrative charge against him (i.e., the employee is not found guilty of any other offense), or

the employee’s acquittal of the criminal charge based on his innocence. If the case presented falls on

either of these instances, the conditions laid down in Gonzales become the two sides of the same coin;

the requirement that the suspension must be unjustified is automatically subsumed in the other

requirement of exoneration.







Illegal suspension as sole basis for an award of back salaries

By requiring the concurrence of the two conditions, Gonzales apparently made a distinction between exoneration and unjustified suspension/dismissal. This distinction runs counter to the notion that if an employee is exonerated, the exoneration automatically makes an employee’s suspension unjustified. However, in Abellera v. City of w:st="on"Baguio, et al.,[41] the Court had the occasion to illustrate the independent character of these two conditions so that the mere illegality of an employee’s suspension could serve as basis for an award of back salaries.

Abellera, a cashier in the Baguio City Treasurer’s Office, was ordered dismissed from the service after being found guilty of dishonesty and gross negligence. Even before the period to appeal expired, the City of w:st="on"Baguio dismissed him from the service. On appeal, however, the penalty imposed on him was reduced “to two months suspension, without pay” although the appealed decision was affirmed “in all other respects.”

When the issue of Abellera’s entitlement to back salaries reached the Court, we considered the illegality of Abellera’s suspension - i.e., from the time he was dismissed up to the time of his actual reinstatement – to be a sufficient ground to award him back salaries.

The rule on payment of back salaries during the period of suspension of a member of the civil service who is subsequently ordered reinstated, is already settled in this jurisdiction. Such payment of salaries corresponding to the period when an employee is not allowed to work may be decreed not only if he is found innocent of the charges which caused his suspension (Sec. 35, RA 2260), but also when the suspension is unjustified.

In the present case, upon receipt of the [Civil Service Commissioner’s] decision x x x finding [Abellera] guilty, but even before the period to appeal had expired, [the w:st="on"Baguio City officials] dismissed [Abellera] from the service and another one was appointed to replace him. [Abellera’s] separation x x x before the decision of the Civil Service Commissioner had become final was evidently premature. [The w:st="on"Baguio City officials] should have realized that [Abellera] still had the right to appeal the Commissioner's decision to the Civil Service Board of Appeals within a specified period, and the possibility of that decision being reversed or modified.[42] As it did happen on such appeal x x x the penalty imposed by the Commissioner was reduced x x x to only 2 months suspension. And yet, by [the w:st="on"Baguio City officials’] action, [Abellera] was deprived of work for more than 2 years. Clearly, Abellera’s second suspension from office [i.e., from the time he was dismissed up to his actual reinstatement] was unjustified, and the payment of the salaries corresponding to said period is, consequently, proper.[43] (emphases and underscoring ours)

The import of the Abellera ruling was explained by the Court in the subsequent case of Yarcia v. City of

Baguio[44] that involved substantially similar facts. The Court clarified that the award of back salaries





in Abellera was based on the premature execution of the decision (ordering the employee’s dismissal

from the service), resulting in the employee’s unjustified “second suspension.” Under the then Civil

Service Rules, the Commissioner of Civil Service had the discretion to order the immediate execution

of his decision in administrative cases “in the interest of public service.” Unlike in Abellera, this

discretion was exercised in Yarcia; consequently, the employee’s separation from the service pending

his appeal “remained valid and effective until it was set aside and modified with the imposition of the

lesser penalty.”[45]

The unjustified “second suspension” mentioned in Abellera actually refers to the period when the

employee was dismissed from the service up to the time of his actual reinstatement. Under our present

legal landscape, this period refers to “suspension pending appeal.”[46]

In Miranda v. Commission on Audit,[47] the Court again had the occasion to consider

the illegality of the suspension of the employee as a separate ground to award back

salaries. Following the filing of several administrative charges against him, Engr.

Lamberto Miranda was “preventively” suspended from June 2, 1978 to May 7, 1986. He

was reinstated on May 22, 1986. On October 7, 1986, the administrative case against

him was finally dismissed “for lack of evidence.” When his claim for back salaries

(from the time he was “preventively” suspended up to his actual reinstatement) was

denied by the Commission on Audit, he brought a certiorari petition with this Court.

In granting the petition, the Court ruled that since the law[48] limits the duration of

preventive suspension to a fixed period, Engr. Miranda’s suspension for almost eight (8)

years is “unreasonable and unjustified.” Additionally, the Court observed that the

dropping of the administrative case against Engr. Miranda for lack of evidence “is even

an eloquent manifestation that the suspension is unjustified.”[49] The Court held:

This being so, Engineer Miranda is entitled to backwages during the period of his suspension as it is already settled in this jurisdiction that a government official or employee is entitled to backwages not






only if he is exonerated in the administrative case but also when the suspension is unjustified.[50] (emphases and underscoring ours)

Jurisprudential definition of exoneration

The mere reduction of the penalty on appeal does not entitle a government employee to back salaries if

he was not exonerated of the charge against him. This is the Court’s teaching in City Mayor of

Zamboanga v. CA.[51] In this case, the employee was initially found guilty of disgraceful and immoral

conduct and was given the penalty of dismissal by the City Mayor of Zamboanga. On appeal, however,

the CA limited the employee’s guilt to improper conduct and correspondingly reduced the penalty to

“six-months suspension without pay with a stern warning that repetition of the same or similar offense

will be dealt with more severely."[52] The CA also awarded him “full backwages.”[53]

We held that the CA erred in awarding back salaries by reiterating the principle that back salaries may

be ordered paid to an officer or employee only if he is exonerated of the charge against him and his

suspension or dismissal is found and declared to be illegal.[54]

The Court had the occasion to explain what constitutes “exoneration” in Bangalisan v. Hon. CA,[55] the respondent’s cited case. In this case, the Secretary of Education found the public school teachers guilty as charged and imposed on them the penalty of dismissal. On appeal, the CSC affirmed the Secretary’s ruling but reduced the penalty imposed to suspension without pay. However, the CSC found one of the teachers (Mariano) guilty only of violation of reasonable office rules and regulations, and only penalized her with reprimand. None of the petitioning public school teachers were awarded back salaries.

On appeal to this Court, we awarded back salaries to Mariano. We explained that since the factual premise of the administrative charges against him - i.e., his alleged participation in the illegal mass actions, and his suspension - was amply rebutted, then Mariano was in effect exonerated of the charges against him and was, thus, entitled to back salaries for the period of his suspension pending appeal.

With respect to petitioner Rodolfo Mariano, payment of his back wages is in order. A reading of the resolution of the [CSC] will show that he was exonerated of the charges which formed the basis for his suspension. The Secretary of the DECS charged him with and he was later found guilty of grave misconduct x x x [and] conduct prejudicial to the best interest of the service x x x for his participation in the mass actions x x x. It was his alleged participation in the mass actions that was the basis of his







preventive suspension and, later, his dismissal from the service.

However, the [CSC], in the questioned resolution, made [the] finding that Mariano was not involved in the "mass actions" but was absent because he was in Ilocos Sur to attend the wake and interment of his grandmother. Although the CSC imposed upon him the penalty of reprimand, the same was for his violation of reasonable office rules and regulations because he failed to inform the school or his intended absence and neither did he file an application for leave covering such absences.

x x x x

However, with regard to the other petitioners, the payment of their back wages must be denied. Although the penalty imposed on them was only suspension, they were not completely exonerated of the charges against them. The CSC made specific findings that, unlike petitioner Mariano, they indeed participated in the mass actions. It will be noted that it was their participation in the mass actions that was the very basis of the charges against them and their subsequent suspension.[56]

Bangalisan clearly laid down the principle that if the exoneration of the employee is relative (as distinguished from complete exoneration), an inquiry into the factual premise of the offense charged and of the offense committed must be made. If the administrative offense found to have been actually committed is of lesser gravity than the offense charged, the employee cannot be considered exonerated if the factual premise for the imposition of the lesser penalty remains the same. The employee found guilty of a lesser offense may only be entitled to back salaries when the offense actually committed does not carry the penalty of more than one month suspension or dismissal.[57]

Bangalisan reiterated that the payment of back salaries, during the period of suspension of a member of

the civil service who is subsequently ordered reinstated, may be decreed only if the employee is found

innocent of the charges which caused the suspension and when the suspension is unjustified. This

pronouncement was re-echoed in Jacinto v. CA,[58] De la Cruz v. CA,[59] and Hon. Gloria v. CA.

[60] Taking off from Bangalisan, the Court in De la Cruz categorically stated:

The issue of whether back wages may be awarded to teachers ordered reinstated to the service after the dismissal orders x x x were commuted by the CSC to six (6) months suspension is already settled.

In Bangalisan v. Court of Appeals, we resolved the issue in the negative on the ground that the teachers were neither exonerated nor unjustifiably suspended, two (2) circumstances necessary for the grant of back wages in administrative disciplinary cases.[61]







In Hon. Gloria, involving the same factual situation as Bangalisan, the CA awarded the public school

teachers back salaries - for the period beyond the allowable period of preventive suspension - since

they were ultimately exonerated. In affirming the CA, the Court distinguished preventive suspension

from suspension pending appeal for the purpose of determining the extent of an employee’s entitlement

to back salaries. The Court ruled that under Executive Order (E.O.) No. 292, there are two kinds of

preventive suspension of civil service employees who are charged with offenses punishable by removal

or suspension: (i) preventive suspension pending investigation[62] and (ii) preventive suspension

pending appeal;[63] compensation is due only for the period of preventive suspension pending appeal

should the employee be ultimately exonerated.[64] Citing Floyd R. Mechem's A Treatise on the Law of

Public Offices and Officers,[65] Hon. Gloria ruled:

Thus, it is not enough that an employee is exonerated of the charges against him. In addition, his suspension must be unjustified. The case of Bangalisan v. Court of Appeals itself similarly states that "payment of salaries corresponding to the period [1] when an employee is not allowed to work may be decreed if he is found innocent of the charges which caused his suspension and [2] when the suspension is unjustified.”[66] (emphases and underscoring ours)

A careful reading of these cases would reveal that a strict observance of the second condition for

an award of back salaries becomes important only if the employee is not totally innocent of any

administrative infraction. As previously discussed, where the employee is completely exonerated of the

administrative charge or acquitted in the criminal case arising from the same facts based on a finding

of innocence, the second requirement becomes subsumed in the first. Otherwise, a determination of the

act/s and offense/s actually committed and of the corresponding penalty imposed has to be made.

Unjustified suspension

On the suspension/dismissal aspect, this second condition is met upon a showing that the separation

from office is not warranted under the circumstances because the government employee gave no cause

for suspension or dismissal. This squarely applies in cases where the government employee did not






commit the offense charged, punishable by suspension or dismissal (total exoneration); or the

government employee is found guilty of another offense for an act different from that for which he was

charged.

Bangalisan, Jacinto and De la Cruz illustrate

the application of the two conditions

Both the CA and the respondent applied Bangalisan to justify the award of back salaries. The

CSC argues against this position with the claim that the rulings in Jacinto and De la Cruz, not

Bangalisan, should apply. After due consideration, we see no reason why the cited rulings and their

application should be pitted against one another; they essentially espouse the same conclusions after

applying the two conditions for the payment of back salaries.

Bangalisan, Jacinto and De la Cruz all stemmed from the illegal mass actions of public school teachers

in Metro Manila in 1990. The teachers were charged with grave misconduct, gross neglect of duty, and

gross violation of civil service law, rules and regulations, among others. The then Secretary of

Education found them guilty and dismissed them from the service. The CSC, on appeal, ordered the

teachers reinstated, but withheld the grant of their back salaries. The CSC found the teachers liable for

conduct prejudicial to the best interest of the service and imposed on them the penalty of suspension.

The CSC reasoned that since the teachers were not totally exculpated from the charge (but were found

guilty of a lesser offense), they could not be awarded back salaries.

When these cases reached the Court, the issue of the teachers’ entitlement to back salaries was raised.

The teachers claimed that they were entitled to back salaries from the time of their dismissal or

suspension until their reinstatement, arguing that they were totally exonerated from the charges since

they were found guilty only of conduct prejudicial to the best interest of the service.

Under this factual backdrop, we applied the two conditions and distinguished between the teachers who

were absent from their respective classes because they participated in the illegal mass action, on one

hand, and the teachers who were absent for some other reason, on the other hand.

With respect to the teachers who participated in the illegal mass actions, we ruled that they were not

entitled to back salaries since they were not exonerated. We explained that liability for a lesser offense,

carrying a penalty less than dismissal, is not equivalent to exoneration. On the second condition, we

ruled that their suspension is not unjustified since they have given a ground for their suspension – i.e.,

the unjustified abandonment of their classes to the prejudice of their students, the very factual premise

of the administrative charges against them – for which they were suspended.

With respect to the teachers who were away from their classes but did not participate in the illegal

strike, the Court awarded them back salaries, considering that: first, they did not commit the act for

which they were dismissed and suspended; and second, they were found guilty of another offense, i.e.,

violation of reasonable office rules and regulations which is not penalized with suspension or dismissal.

The Court ruled that these teachers were totally exonerated of the charge, and found their dismissal and

suspension likewise unjustified since the offense they were found to have committed only merited the

imposition of the penalty of reprimand.

These cases show the Court’s consistent stand in determining the propriety of the award of back

salaries. The government employees must not only be found innocent of the charges; their suspension

must likewise be shown to be unjustified.

The Present Case

We find that the CA was correct in awarding the respondent his back salaries during the period he was suspended from work, following his dismissal until his reinstatement to his former position. The records show that the charges of grave misconduct and dishonesty against him were not substantiated. As the CSC found, there was no corrupt motive showing malice on the part of the respondent in making the complained utterance. Likewise, the CSC found that the charge of dishonesty was well refuted by the respondent’s evidence showing that he rendered overtime work on the days in question.

We fully respect the factual findings of the CSC especially since the CA affirmed these factual

findings. However, on the legal issue of the respondent’s entitlement to back salaries, we are fully in

accord with the CA’s conclusion that the two conditions to justify the award of back salaries exist in the

present case.

The first condition was met since the offense which the respondent was found guilty of (violation of

reasonable rules and regulations) stemmed from an act (failure to log in and log out) different from the

act of dishonesty (claiming overtime pay despite his failure to render overtime work) that he was

charged with.

The second condition was met as the respondent’s committed offense merits neither dismissal from the

service nor suspension (for more than one month), but only reprimand.

In sum, the respondent is entitled to back salaries from the time he was dismissed by the CMWD until

his reinstatement to his former position - i.e., for the period of his preventive suspension pending

appeal. For the period of his preventive suspension pending investigation, the respondent is not entitled

to any back salaries per our ruling in Hon. Gloria.[67]

WHEREFORE, the petition is hereby DENIED. Costs against the petitioner.

SO ORDERED.

ARTURO D. BRION Associate Justice

WE CONCUR:

RENATO C. CORONA


Chief Justice

ANTONIO T. CARPIOAssociate Justice

PRESBITERO J. VELASCO, JR.Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

DIOSDADO M. PERALTAAssociate Justice

LUCAS P. BERSAMINAssociate Justice

(no part)MARIANO C. DEL CASTILLO

Associate Justice

(on leave)ROBERTO A. ABAD

Associate Justice

MARTIN S. VILLARAMA, JR.Associate Justice

JOSE PORTUGAL PEREZ Associate Justice

(on leave)JOSE CATRAL MENDOZA

Associate Justice

MARIA LOURDES P. A. SERENOAssociate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

Office of the ombudsman,

Petitioner,

- versus -

ROLANDO L. MAGNO and the COURT OF APPEALS (SPECIAL FORMER FIFTH DIVISION),

Respondents.

G.R. No. 178923

Present:

YNARES-SANTIAGO, J.,

Chairperson,

AUSTRIA-MARTINEZ,

CHICO-NAZARIO,

NACHURA, and

REYES, JJ.

Promulgated:

November 27, 2008

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

CHICO-NAZARIO, J.:

This is a Petition for Certiorari and Prohibition under Rule 65 of the Revised Rules

of Court seeking to nullify and set aside the Decision[1] dated style="font-size:

14.0pt;mso-bidi-font-size:12.0pt;line-height:150%"7 November 2006 and Resolution[2] dated

http://sc.judiciary.gov.ph/jurisprudence/2008/november2008/178923.htm#_ftn2


style="font-size:

14.0pt;mso-bidi-font-size:12.0pt;line-height:150%"14 June 2007 of the Court of Appeals in

CA-G.R. SP No. 91080 entitled, Rolando L. Magno v. Lizabeth Carreon. The Court of

Appeals reversed the Decision promulgated on style="font-size:14.0pt;mso-bidi-font-

size:12.0pt;line-height:150%"3 June 2005[3] and Order issued style="font-size:14.0pt;

mso-bidi-font-size:12.0pt;line-height:150%"22 August 2005[4] of the Office of the

Ombudsman (Ombudsman) in OMB-ADM-0-00-0148 and denied the Omnibus Motion

to Intervene and for Reconsideration of the Ombudsman in CA-G.R. SP No. 91080. The

Ombudsman, in OMB-ADM-0-00-0148, dismissed from service private respondent

Rolando L. Magno (Magno), Schools Division Superintendent of the Department of

Education, Parañaque City Division, and Co-Chairman of the Parañaque City School

Board (PCSB), for Grave Misconduct.

The following are the factual antecedents:

Lizabeth Carreon (Carreon) – alleging to be the legal representative of Kejo Educational

System, Merylvin Publishing House, and Southern Christian Commercial which were

distributors and suppliers of textbooks to public schools in Metro Manila – filed a

complaint-affidavit[5] on 10 February 2000 before the Ombudsman against Magno and

other officials of Parañaque City, particularly: Joey P. Marquez (Marquez), City Mayor

and Chairman of the PCSB; Silvestre A. de Leon (de Leon), City Treasurer; Flocerfida

Babida (Babida), City Budget Officer; Mar Jimenez (Jimenez), Executive Assistant to

the City Mayor; and Antonette Antonio (Antonio), Assistant to the City Mayor

(hereinafter collectively referred to as Magno, et al.). Carreon charged Magno, et al.

with violation of Section 3, paragraphs (e) and (f) of Republic Act No. 3019, otherwise

known as the Anti-Graft and Corrupt Practices Act, for allegedly having failed to pay the

purchase price of books ordered and delivered to the different public schools in




Parañaque City.[6]

Carreon averred that sometime in the first quarter of 1998, she was approached by a

close family friend, Noli Aldip (Aldip), who also happened to be a friend of Marquez.

Aldip introduced her to Jimenez and Antonio; the two, in turn, introduced her to Magno.

Immediately after their meeting, Jimenez and Antonio proposed to Carreon that if the

companies she represented, i.e., Kejo Educational System, Merylvin Publishing House,

and Southern Christian Commercial, were willing to do business with PCSB, they could

facilitate, through the Office of the City Mayor, book purchases for Parañaque City

public schools. Magno, for his part, assured Carreon that he, Jimenez, and Antonio,

could arrange the passage of the required PCSB Resolutions for said business

transaction.

Carreon claimed that Jimenez and Antonio informed her that they had the go-signal of

the City Mayor for the book purchases. Subsequently, she learned through Magno,

Jimenez, and Antonio that the PCSB had already passed the following Resolutions in

July 1998:

Resolution No. Purpose Amount

25 For 500 copies of Diksyonaryong Pilipino P1,122,250.00

26 For 500 copies of Oxford Dictionary 1,247,500.00

28 For DECS Basic Textbooks in Grade II 2,021,250.00

29 For DECS Basic Textbooks 2,021,250.00

TOTAL 6,412,250.00

Four months after, in November 1998, Carreon said that Magno, Jimenez, and Antonio

notified her that the funding for the dictionary and textbook purchases had been

arranged and, in fact, some of the necessary documents were already signed. Carreon


was provided by Magno, Jimenez, and Antonio with copies of Requests for Allocation of

Allotment (ROAs) and Disbursement Vouchers (DVs) signed by Magno; Purchase

Requests (PRs) No. 0001391, No. 0001387, No. 0001388 and No. 0001390, signed by

Marquez and Magno; as well as Purchase Orders (POs) for individual requests signed by

Marquez and the Parañaque Purchasing Officer. Magno, Jimenez, and Antonio then

advised Carreon to start making deliveries of the dictionaries and textbooks.

Allegedly relying on the representations of Magno, Jimenez, and Antonio, Carreon

caused the deliveries of the dictionaries and textbooks, amounting to P6,412,201.91, to

the PCSB, evidenced by delivery receipts dated 14, 21, and style="font-size:14.0pt;line-

height:150%"22 December 1998,[7] signed by Teresita G. Diocadiz, Supply Officer of the

PCSB. According to the Supplies and Materials Distribution Sheet, the dictionaries and

textbooks were distributed to the various Parañaque public schools on 2 February 1999

by the officials of the PCSB, particularly Marquez and Magno.[8]

According to Carreon, she was assured several times that payments for the said

dictionaries and textbooks would be released soon. On style="font-size:14.0pt;line-

height:150%"17 January 2000, Carreon sent a demand letter to Marquez. For the first

time, however, Marquez questioned the authenticity of his signatures on the PRs and

POs for the dictionaries and textbooks.

Carreon asserted that the actions of Magno, et al. before, during, and subsequent to the

delivery of the dictionaries and textbooks were done in evident bad faith and manifest

evil design; and that the non-payment of said books caused her undue injury, in violation

of Sections 3(e) and (f) of Republic Act No. 3019.

Carreon’s complaint-affidavit gave rise to two separate proceedings before the



Ombudsman: a criminal investigation, docketed as OMB-0-00-0350; and an

administrative investigation, docketed as OMB-ADM-0-00-0148. The administrative

charges against Magno, et al. were particularly for Misconduct and Oppression.

Apparently in negotiations for the amicable settlement of her claims, Carreon filed a

Manifestation in OMB-0-00-0350 dated September 2000 before the Evaluation and

Preliminary Investigation Bureau of the Office of the Ombudsman withdrawing her

complaint-affidavit, without prejudice to its re-filing in case the parties fail to reach an

agreement.[9]

On style="font-size:14.0pt;line-height:150%"16 January 2001, finding enough basis to

proceed with the administrative investigation of the case, the Director of the

Administrative Investigation Bureau (AIB) of the Office of the Ombudsman issued an

Order to proceed with the investigation on the administrative liability of Magno, et al. in

OMB-ADM-0-00-0148, it appearing that the complaint was sufficient in form and

substance. Magno, et al. were directed to file their counter-affidavits.[10]

In a letter[11] dated 28 March 2001 and addressed to the AIB Director, Magno, et al.

(except Antonio), authorized Atty. Leo Luis Mendoza (Atty. Mendoza) to appear on their

behalf in the preliminary conference on OMB-ADM-0-00-0148 and to present and

submit the necessary documents/affidavits as may be required by law and/or the AIB.

On style="font-size:14.0pt;line-height:150%"16 April 2001, Atty. Mendoza filed a

Manifestation[12] on behalf of Magno, et al. (except Antonio), adopting in OMB-ADM-

0-00-0148 the Joint Counter-Affidavit already submitted in the criminal proceedings in

OMB-0-00-0350.[13] In said Joint Counter-Affidavit, filed on 3 April 2000 by Magno,

et al. (except Antonio) in OMB-0-00-0350, but which did not bear Magno’s signature, it






was asserted that the supposed contracts for the book purchases were null and void

because the Board Resolutions approving the same were invalid and could not legally

bind the city and its funds, given that the signatures of Marquez thereon were allegedly

forged. It was further contended therein that the contracts for the book purchases

violated existing law and rules and regulations regarding government contracts, since

there was an absence of (1) public bidding, as mandated by Sections 356 and 366 of the

Local Government Code; (2) a certification issued by Marquez, as PCSB Chairman, on

the need for the dictionaries and textbooks purchased and where these were to be used;

(3) a certification by the local budget officer, accountant, and treasurer, showing that an

appropriation for the book purchases existed, that the estimated amount for the same had

been obligated, and that the funds were available for the purpose, as required by Section

360 of the Local Government Code; and (4) Disbursement Vouchers properly issued and

signed by the authorized public officials. The Joint Counter-Affidavit raised as

additional ground for dismissal of the complaint-affidavit Carreon’s lack of legal

capacity to sue and lack of cause of action against the style="font-size:14.0pt;line-

height:150%"Parañaque style="font-size:14.0pt;line-height:150%"City officials for failure to

show any documentary proof that she was indeed the legal representative of the book

distributors and suppliers. Hence, it was argued in the Joint Counter-Affidavit that

Carreon delivered the books at her own risk and must bear the loss for the non-payment

thereof. The same Joint Counter-Affidavit also presented the defenses for each of the

Parañaque official involved. For Magno, in particular, it was admitted therein that he

signed the ROAs and PRs for the books supplied by Kejo Educational System, Merylvin

Publishing House, and Southern Christian Commercial, but it was done in good faith

and simply in compliance with his duty as the requesting or requisitioning official for

PCSB. And, it was denied in the Joint Counter-Affidavit that Magno dealt with Carreon

regarding these purchases.[14]

In the meantime, separate Ex-Parte Manifestations[15] were filed by Kejo Educational



System,[16] Merylvin Publishing House,[17] and Southern Christian Commercial,[18]

disclaiming the authority of Carreon to file with the Ombudsman the complaint-affidavit

against Magno, et al. on their behalf.

After holding a preliminary conference, the Ombudsman issued on style="font-

size:14.0pt;line-height:150%"23 November 2001 an Order submitting OMB-ADM-0-00-

0148 for decision.

The Office of the Ombudsman rendered its Decision in OMB-ADM-0-00-0148 on

style="font-size:14.0pt;line-height:150%"3 June 2005 holding only Magno and Jimenez guilty

of Grave Misconduct and dismissing them from service. The dispositive portion of the

said Decision reads:

WHEREFORE, premises considered, this Office rules and so holds that:

1. Respondent ROLANDO L. MAGNO is hereby FOUND GUILTY of the offense of GRAVE MISCONDUCT, and for which he is hereby meted the penalty of DISMISSAL FROM THE SERVICE WITH ALL ITS ACCESSORY PENALTIES, pursuant to Section 52(A-3), Rule IV, Uniform Rules on Administrative Cases in the Civil Service;

2. Respondent MARIO “MAR” L. JIMENEZ is hereby found guilty of GRAVE MISCONDUCT and for which he is hereby meted the penalty of DISMISSAL FROM THE SERVICE WITH ALL ITS ACCESSORY PENALTIES, pursuant to Section 52(A-3), Rule IV, Uniform Rules on Administrative Cases in the Civil Service. In view, however, of recent developments which now preclude this Office from dismissing him from office, it is (sic) hereby ordered the forfeiture of his retirement benefits and his perpetual disqualification for reemployment in the government service;

3. Respondents FLORCEFIDA M. BABIDA and SILVESTRE A. DE LEON are hereby ABSOLVED of the instant charge; and

4. For having been rendered moot and academic, the instant case against respondents JOEY P. MARQUEZ and ANTONETTE ANTONIO is hereby DISMISSED.[19]





Magno filed with the Ombudsman a Motion for Reconsideration of the afore-quoted

Decision. He alleged in his Motion that he was not a signatory to the Joint Counter-

Affidavit submitted on 3 April 2000 in OMB-0-00-0350 and adopted in OMB-ADM-0-

00-0148; consequently, he argued that he “can not be adversely affected by whatever

unfavorable allegations contained therein regarding the refusal of [the other Parañaque

City officials] to pay Carreon due to lack of funds.”[20] The style="font-size:14.0pt;line-

height:150%"3 June 2005 Decision of the Ombudsman in OMB-ADM-0-00-0148, which

adjudged Magno guilty of Grave Misconduct based on the Joint Counter-Affidavit

which he did not execute, was clearly erroneous. Contrary to the allegations in the said

Joint Counter-Affidavit, Magno did not deny signing the ROAs and the PRs for the book

purchases but explained that its was only an initial step for the purchase of the

dictionaries and textbooks, and was proper and legal since it was part of his official

functions and duties. Moreover, to negate the claim of injury, Magno attached a

certification[21] dated style="font-size:14.0pt;

line-height:150%"15 August 2003, issued by the current Parañaque City Treasurer

showing that payment for the dictionaries and textbooks were already received by Kejo

Educational System,[22] Merylvin Publishing House[23] and Southern Christian

Commercial.[24]

The Ombudsman, in its Order issued on style="font-size:14.0pt;

line-height:150%"22 August 2005, denied Magno’s Motion for Reconsideration and

affirmed its Decision of style="font-size:14.0pt;line-height:150%"3 June 2005.

Magno elevated his case to the Court of Appeals via a Petition for Review on Certiorari

under Rule 43 of the Rules of Court, where it was docketed as CA-G.R. SP No. 91080.

Magno grounded his appeal on the following arguments: that Carreon had no legal

standing to institute the administrative case against him; that he signed the ROAs and






PRs for the book purchases as part of his official duties, and that, even then, the said

documents had no bearing unless approved by the appropriate officials of the Parañaque

City government; and that since he was administratively charged only with Misconduct

and Oppression for his supposed violation of Sections 3(e) and (f) of Republic Act No.

3019, he could not be found guilty of Grave Misconduct without violating his right to

due process.

The Court of Appeals issued on style="font-size:14.0pt;line-height:150%"1 March 2006 a

preliminary injunction to enjoin the implementation of the style="font-size:14.0pt;line-

height:150%"3 June 2005 Decision of the Ombudsman in OMB-ADM-0-00-0148

dismissing Magno from service. Upon Carreon’s failure to file a Comment on Magno’s

Petition in CA-G.R. SP No. 91080 as directed, the appellate court submitted the case for

decision.

On style="font-size:14.0pt;line-height:150%"7 November 2006, the Court of Appeals reversed

the Ombudsman and dismissed the administrative charges against Magno, ratiocinating

that:

The Office of the Ombudsman erred in finding [Magno] guilty of grave misconduct. [Magno] was charged with violation of Section 3 (e) and (f), R.A. 3019. He was not charged with grave misconduct, as to put him on notice that he stands accused of misconduct coupled with any of the elements of corruption, willful intent to violate the law or established rules. Therefore, he was not afforded the opportunity to rebut the elements of corruption, willful intent to violate the law, or flagrant disregard of established rules in grave misconduct, in violation of his constitutional right to be informed of the charges against him.[25]

On style="font-size:14.0pt;

line-height:150%"24 November 2006, the Ombudsman filed with the Court of Appeals an

Omnibus Motion to Intervene and for Reconsideration[26] of the appellate court’s



Decision in CA-G.R. SP No. 91080. The Ombudsman justified its move to intervene by

reasoning that CA-G.R. SP No. 91080 concerned a decision rendered by the

Ombudsman pursuant to its function as the disciplinary authority over public officials

and employees. Its style="font-size:14.0pt;line-height:150%"3 June 2005 Decision in OMB-

ADM-0-00-0148 finding Magno administratively liable for Grave Misconduct was

based on substantial evidence. It did not violate due process, as due process never

required the Ombudsman to limit its findings to the designation of the offense in the

complaint.

Magno opposed the Omnibus Motion of the Ombudsman, contending that the latter was

not a real party-in-interest, and its motion to intervene was already belatedly filed since

such should have been filed before the Court of Appeals promulgated its Decision in

CA-G.R. SP No. 91080.

In a Resolution[27] dated style="font-size:

14.0pt;line-height:150%"14 June 2007, the Court of Appeals denied the Omnibus Motion

of the Ombudsman, and pronounced that the arguments raised in Magno’s Petition in

CA-G.R. SP No. 91080 had already been adequately discussed and passed upon in the

Decision dated style="font-size:14.0pt;line-height:150%"7 November 2006.

Hence, the Petition at bar, in which the Ombudsman asserts that the Court of Appeals

committed grave abuse of discretion amounting to lack or excess of jurisdiction in the

following manner:

THE RESPONDENT COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DENYING THE OMNIBUS MOTION FOR INTERVENTION AND RECONSIDERATION FILED BY PETITIONER OMBUDSMAN, IT APPEARING THAT THE QUESTIONED RESOLUTION AND DECISION ARE


NOT IN ACCORD WITH LAW AND APPLICABLE DECISIONS OF THIS HONORABLE COURT UNDER THE FOLLOWING CIRCUMSTANCES:

A. PETITIONER OMBUDSMAN HAS SUFFICIENT LEGAL INTEREST WARRANTING ITS INTERVENTION IN CA-GR SP NO. 91080, ENTITLED “ROLANDO L. MAGNO VS. LIZABETH CARREON.”

B. PETITIONER OMBUDSMAN DID NOT VIOLATE PRIVATE RESPONDENT MAGNO’S RIGHT TO DUE PROCESS WHEN IT DECLARED HIM ADMINISTRATIVELY LIABLE FOR GRAVE MISCONDUCT.

The Ombudsman prays that the Court issue (1) a writ of certiorari setting aside the 7

November 2006 Decision and 14 June 2007 Resolution of the Court of Appeals and

reinstating the 3 June 2005 Decision and 22 August 2005 Resolution of the

Ombudsman; and (2) a writ of prohibition perpetually restraining Magno and the Court

of Appeals from enforcing the assailed Decision and Resolution.

The present Petition is without merit and is accordingly dismissed by this Court.

Petitions for certiorari and prohibition are special remedies governed by Rule 65 of the

Revised Rules of Court, relevant provisions of which read:

SEC. 1. Petition for Certiorari. – When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

x x x x

SEC. 2. Petition for prohibition. – When the proceedings of any tribunal, corporation, board, officer or

person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceeding in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.

The rules are explicit that the special remedies of certiorari and prohibition may only be

availed of when the tribunal, corporation, board, officer, or person, exercising judicial,

quasi-judicial, or ministerial functions, acted without or in excess of its or his

jurisdiction, or with grave abuse of discretion amounting to lack or excess of

jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in

the ordinary course of law.

A petition for certiorari (as well as one for prohibition) will only prosper if grave abuse

of discretion is manifested.[28] The burden is on the part of the petitioner to prove not

merely reversible error, but grave abuse of discretion amounting to lack or excess of

jurisdiction on the part of the public respondent issuing the impugned order. Mere abuse

of discretion is not enough; it must be grave.[29] The term grave abuse of discretion has

a technical and set meaning. Grave abuse of discretion is a capricious and whimsical

exercise of judgment so patent and gross as to amount to an evasion of a positive duty or

a virtual refusal to perform a duty enjoined by law, as where the power is exercised in an

arbitrary and despotic manner because of passion or hostility.[30]

Judging from the foregoing standards, there is no grave abuse of discretion in the case at

bar. There is factual and legal justification for the denial by the Court of Appeals of the

Ombudsman’s Omnibus Motion.




The Court notes that only Carreon was named a respondent in CA-G.R. SP No. 91080;

the Ombudsman was not impleaded as a party in said case, even as a nominal party. The

Ombudsman, despite receiving notices from said case, failed to immediately move to

intervene in CA-G.R. SP No. 91080. Instead, the Ombudsman waited until the Court of

Appeals rendered its judgment dismissing the charges against Magno before filing its

Omnibus Motion to Intervene and for Reconsideration. The appellate court no longer

allowed the Ombudsman to intervene.

Intervention is not a matter of right but may be permitted by the courts only when the

statutory conditions for the right to intervene are shown. Thus, the allowance or

disallowance of a motion to intervene is addressed to the sound discretion of the court.

[31]

To allow intervention, it must be shown that (a) the movant has a legal interest in the

matter in litigation or otherwise qualified, and (b) consideration must be given as to

whether the adjudication of the rights of the original parties may be delayed or

prejudiced, or whether the intervenor’s rights may be protected in a separate proceeding

or not. Both requirements must concur, as the first is not more important than the

second.[32]

In the case at bar, the Court holds that the Ombudsman failed to sufficiently establish its

legal interest to intervene in CA-G.R. SP No. 91080.

Legal interest, which entitles a person to intervene, must be in the matter in litigation

and of such direct and immediate character that the intervenor will either gain or lose by

direct legal operation and effect of the judgment.[33]




The Ombudsman invokes its disciplining authority over public officers and employees

in an attempt to justify its intervention in CA-G.R. SP No. 91080. It was in the exercise

of such disciplining authority that the Ombudsman conducted the investigation in OMB-

ADM-0-00-0148, the administrative case against Magno and the other style="font-

size:14.0pt;mso-bidi-font-size:12.0pt;line-height:150%"Parañaque style="font-size:14.0pt;mso-bidi-

font-size:12.0pt;line-height:150%"City officials. As a result of such investigation, the

Ombudsman rendered its Decision of style="font-size:14.0pt;line-height:150%"3 June 2005,

finding Magno guilty of Grave Misconduct and dismissing him from service.

That it was its decision, rendered as the disciplining authority over Magno, which was

the subject of the appeal in CA-G.R. SP No. 91080, did not necessarily vest the

Ombudsman with legal interest to intervene in the said case. Every decision rendered by

the Ombudsman in an administrative case may be affirmed, but may also be modified or

reversed on appeal – this is the very essence of appeal. In case of modification or

reversal of the decision of the Ombudsman on appeal, it is the parties who bear the

consequences thereof, and the Ombudsman itself would only have to face the error/s in

fact or law that it may have committed which resulted in the modification or reversal of

its decision.

Moreover, the reason for disallowing the disciplining authority from appealing the

reversal of its decision, as decided in National Appellate Board of the National Police

Commission v. Mamauag,[34] citing Mathay, Jr. v. Court of Appeals,[35] is also true for

precluding said disciplining authority from intervening in the appeal of its decision, to

wit:

RA 6975 itself does not authorize a private complainant to appeal a decision of the disciplining



authority. Sections 43 and 45 of RA 6975 authorize “either party” to appeal in the instances that the law allows appeal. One party is the PNP member-respondent when the disciplining authority imposes the penalty of demotion or dismissal from the service. The other party is the government when the disciplining authority imposes the penalty of demotion but the government believes that dismissal from the service is the proper penalty.

However, the government party that can appeal is not the disciplining authority or tribunal which previously heard the case and imposed the penalty of demotion or dismissal from the service. The government party appealing must be one that is prosecuting the administrative case against the respondent. Otherwise, an anomalous situation will result where the disciplining authority or tribunal hearing the case, instead of being impartial and detached, becomes an active participant in prosecuting the respondent. Thus, in Mathay, Jr. v. Court of Appeals, decided after Dacoycoy, the Court declared:

To be sure, when the resolutions of the Civil Service Commission were brought before the Court of Appeals, the Civil Service Commission was included only as a nominal party. As a quasi-judicial body, the Civil Service Commission can be likened to a judge who should “detach himself from cases where his decision is appealed to a higher court for review.” In instituting G.R. No. 126354, the Civil Service Commission dangerously departed from its role as adjudicator and became an advocate. Its mandated function is to “hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments and to review decisions and actions of its offices and agencies,” not to litigate. (Emphasis ours.)

In Pleyto v. Philippine National Police Criminal Investigation and Detection Group,[36]

the Court further warned that:

The court or the quasi-judicial agency must be detached and impartial, not only when hearing and resolving the case before it, but even when its judgment is brought on appeal before a higher court. The judge of a court or the officer of a quasi-judicial agency must keep in mind that he is an adjudicator who must settle the controversies between parties in accordance with the evidence and the applicable laws, regulations, and/or jurisprudence. His judgment should already clearly and completely state his findings of fact and law. There must be no more need for him to justify further his judgment when it is appealed before appellate courts. When the court judge or the quasi-judicial officer intervenes as a party in the appealed case, he inevitably forsakes his detachment and impartiality, and his interest in the case becomes personal since his objective now is no longer only to settle the controversy between the original parties (which he had already accomplished by rendering his judgment), but more significantly, to refute the appellant’s assignment of errors, defend his judgment, and prevent it from being overturned on appeal.


Equally relevant herein is Section 2, Rule 19 of the Revised Rules of Court, which states

that the motion to intervene may be filed at any time before rendition of judgment by the

court. The period within which a person may intervene is thus restricted. After the lapse

of this period, it will not be warranted anymore. This is because, basically, intervention

is not an independent action but is ancillary and supplemental to an existing litigation.

[37]

In the instant case, the Ombudsman moved to intervene in CA-G.R. SP No. 91080 only

after the Court of Appeals had rendered its decision therein. It did not offer any worthy

explanation for its belated attempt at intervention, and merely offered the feeble excuse

that it was not ordered by the Court of Appeals to file a Comment on Magno’s Petition.

Even then, as the Court has already pointed out, the records disclose that the

Ombudsman was served with copies of the petition and pleadings filed by Magno in

CA-G.R. SP No. 91080, yet it chose not to immediately act thereon.

While there may be cases in which the Court admitted and granted a motion for

intervention despite its late filing to give way to substantive justice, the same is not

applicable to the case at bar, for here, not only did the Ombudsman belatedly move for

intervention in CA-G.R. SP No. 91080, but more importantly, it has no legal interest at

all to intervene. The absence of the latter is insurmountable.

Since the Court of Appeals denied the intervention of the Ombudsman in CA-G.R. SP

No. 91080, then the Court of Appeals could not admit, much less, take into account the

Ombudsman’s Motion for Reconsideration of the Decision dated 7 November 2006. In

the absence of any validly filed Motion for Reconsideration of the said Decision or any


appeal thereof taken to this Court within the prescribed period, then the same has

become final and executory, and beyond the power of this Court to review even if the

Decision should contain any errors.

The Ombudsman, however, insists that this Court delve into the merits of the Court of

Appeals Decision dated 7 November 2006, on certiorari instead of appeal, alleging

grave abuse of discretion on the part of the appellate court in promulgating the same.

Firstly, this Petition for Certiorari of the style="font-size:14.0pt;line-height:150%"7

November 2006 Decision of the Court of Appeals was filed beyond the reglementary

period for doing so.

According to Section 4, Rule 65 of the Revised Rules of Court, a petition for certiorari

may be filed not later than 60 days from receipt of the judgment, order or resolution

sought to be assailed in the Supreme Court. The Ombudsman received a copy of the

Court of Appeals Decision dated style="font-size:14.0pt;line-height:150%"7 November 2006

on style="mso-bidi-font-weight:normal"9 November 2006. It had only until style="mso-bidi-

font-weight:normal"8 January 2008 to file a petition for certiorari assailing the said

Decision. This period was not tolled by the filing by the Ombudsman of its Omnibus

Motion on style="font-size:14.0pt;line-height:150%"24 November 2006, as the denial of its

intervention by the appellate court in the assailed Resolution dated style="font-

size:14.0pt;line-height:150%"14 June 2007 resulted in the non-admittance of its motion for

reconsideration. Still, according to Section 4, Rule 65 of the Revised Rules of Court,

only the filing of a motion for reconsideration interrupts the 60-day reglementary period

for the filing of a petition for certiorari.

The results would have been different had the Ombudsman been successful in the instant

Petition to have the Resolution dated 14 June 2007 of the Court of Appeals, denying its

motion to intervene, reversed; because, then, its motion for reconsideration of the

Decision dated 7 November 2006 of the appellate court would have also been deemed

admitted and would have suspended the running of the 60-day reglementary period for

the filing of a petition for certiorari. Regrettably for the Ombudsman, it failed in this

regard.

Secondly, even if this Court disregards the lapse of the reglementary period for the filing

of a petition for certiorari assailing the 7 November 2008 Decision of the Court of

Appeals, it will still not issue the writ prayed for by the Ombudsman since it is not

persuaded that the assailed Decision had been rendered by the appellate court in grave

abuse of discretion.

The administrative charges against Magno, arising from his alleged violation of Sections

3(e) and (f) of Republic Act No. 3019, were Misconduct and Oppression. Magno, in his

pleadings filed before the Ombudsman, argued and presented evidence based on such

charges. However, the Ombudsman finally adjudged him to be guilty of Grave

Misconduct for which he was ordered dismissed from service.

Misconduct has been defined as improper or wrongful conduct. It is the transgression of

some established and definite rule of action, a forbidden act, a dereliction of duty, willful

in character, and implies wrongful intent and not mere error in judgment. It generally

means wrongful, improper or unlawful conduct motivated by a premeditated, obstinate

or intentional purpose. The term, however, does not necessarily imply corruption or

criminal intent. To constitute an administrative offense, misconduct should relate to or

be connected with the performance of the official functions and duties of a public

officer. On the other hand, when the elements of corruption, clear intent to violate the

law or flagrant disregard of established rule are manifest, the public officer shall be

liable for grave misconduct.[38]

Simple Misconduct is distinct and separate from Grave Misconduct. The Court clarified

in Landrito v. Civil Service Commission[39] that “in grave misconduct, as distinguished

from simple misconduct, the elements of corruption, clear intent to violate the law or

flagrant disregard of established rule, must be manifest.”

In point is the Court’s ruling in Civil Service Commission v. Lucas,[40] where:

The issues are (a) whether respondent Lucas was denied due process when the CSC found him guilty of grave misconduct on a charge of simple misconduct, and (b) whether the act complained of constitutes grave misconduct.

Petitioner anchors its position on the view that “the formal charge against a respondent in an administrative case need not be drafted with the precision of an information in a criminal prosecution. It is sufficient that he is apprised of the substance of the charge against him; what is controlling is the allegation of the acts complained of, and not the designation of the offense.”

We deny the petition.

As well stated by the Court of Appeals, there is an existing guideline of the CSC distinguishing simple and grave misconduct. In the case of Landrito vs. Civil Service Commission, we held that “in grave misconduct as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law or flagrant disregard of established rule, must be manifest,” which is obviously lacking in respondent’s case. Respondent maintains that as he was charged with simple misconduct, the CSC deprived him of his right to due process by convicting him of grave misconduct.

We sustain the ruling of the Court of Appeals that: (a) a basic requirement of due process is that a person must be duly informed of the charges against him and that (b) a person can not be convicted of a crime with which he was not charged.

Administrative proceedings are not exempt from basic and fundamental procedural principles, such as the right to due process in investigations and hearings.




The right to substantive and procedural due process is applicable in administrative proceedings.

The essence of due process in administrative proceedings is the opportunity to explain

one’s side or seek a reconsideration of the action or ruling complained of.[41] As found

by the Court of Appeals, Magno was clearly deprived of his right to due process when

he was convicted of a much serious offense, carrying a more severe penalty, without him

being properly informed thereof or being provided with the opportunity to be heard

thereon.

WHEREFORE, premises considered, the instant Petition for Certiorari and Prohibition

is DISMISSED, without prejudice to the outcome of the criminal cases still pending

against private respondent Rolando L. Magno for the same acts.

SO ORDERED.

MINITA V. CHICO-NAZARIOAssociate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO


Associate Justice

Chairperson

MA. ALICIA AUSTRIA-MARTINEZ ANTONIO EDUARDO B. NACHURAAssociate Justice Associate Justice

RUBEN T. REYES

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.


Associate Justice

Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO

Chief Justice

G.R. No. 169013 December 16, 2008

DEPARTMENT OF EDUCATION, represented by its Officer-in-Charge and Undersecretary, RAMON C. BACANI, petitioner, vs.GODOFREDO G. CUANAN, respondent.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the Decision1 dated May 16, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 87499 which set aside Resolution No. 041147 dated October 22, 2004 of the Civil Service Commission (CSC) finding respondent Godofredo G. Cuanan (Cuanan) guilty of sexual harassment and dismissing him from service, and the CA Resolution2 dated July 18, 2005 which denied the Motion for Reconsideration of the Department of Education (DepEd).

The factual background of the case is as follows:

On March 11, 1996, Luzviminda Borja and Juliana Castro, on behalf of their respective minor daughters, Lily Borja and Charo Castro, filed before the Department of Education, Culture and Sports - Regional Office No. III (DECS-RO No. III), Cabanatuan City, two separate administrative complaints3

for Sexual Harassment and Conduct Unbecoming a Public Officer against Cuanan, then Principal of Lawang Kupang Elementary School in San Antonio, Nueva Ecija.

Acting on the complaints, DECS-RO No. III Regional Director Vilma L. Labrador constituted an Investigating Committee, composed of three DepEd officials from the province, to conduct a formal investigation. Following the investigation, the Investigating Committee submitted its Investigation Report4 dated December 14, 1999, finding Cuanan guilty of sexual harassment and recommending his forced resignation without prejudice to benefits. In a Decision5 dated January 28, 2000, Regional Director Labrador concurred in the findings of the Investigating Committee and meted out the penalty of forced resignation to Cuanan without prejudice to benefits.

In an Order6 dated April 13, 2000, then DepEd Secretary Andrew Gonzales affirmed the Decision of Regional Director Labrador. On May 30, 2000, Cuanan filed a Petition for Reconsideration7 thereof, but the same was denied for lack of merit by Secretary Gonzales in a Resolution8 dated June 19, 2000.

Cuanan elevated his case to the CSC. On January 20, 2003, the CSC issued Resolution No. 030069,9

which set aside the June 19, 2000 Resolution of Secretary Gonzales and exonerated Cuanan from the charge of sexual harassment. On January 23, 2003, copies of the resolution were duly sent to the parties, including the DepEd.10 Cuanan received a copy of Resolution No. 030069 on January 31, 2003.11

In a Letter dated February 3, 2003, Cuanan requested his reinstatement as Elementary School Principal












I.12 In a 1st Indorsement, the District Supervisor recommended appropriate action.13 In a 2nd

Indorsement dated February 4, 2003, Schools Division Superintendent Dioscorides D. Lusung (Superintendent) recommended that Cuanan be reinstated to duty as School Principal of San Antonio District upon finality of the decision of the CSC.14 In a Letter15 dated February 10, 2003, Regional Director Ricardo T. Sibug informed the Superintendent that Cuanan could not be immediately reinstated to the service until an order of implementation was received from the Department Secretary.

Sometime in March 2003, DepEd Undersecretary Jose Luis Martin C. Gascon sent a letter to the CSC requesting a copy of CSC Resolution No. 030069 dated January 20, 2003. In a Letter16 dated March 25, 2003, the CSC informed the DepEd that a copy of the requested resolution was duly sent to it on January 23, 2003. Nonetheless, the CSC sent another copy of the resolution to the DepEd for its reference. The DepEd received said reference copy on March 28, 2003.17

On April 11, 2003, then DepEd Secretary Edilberto C. de Jesus filed a

Petition for Review/Reconsideration18 with the CSC. No copy of the pleading was served upon Cuanan.

On July 29, 2003, Secretary De Jesus filed a Supplemental Petition for Review/Reconsideration19

reiterating the prayer for reversal of the resolution. Again, no copy of the pleading was served upon Cuanan.

Subsequently, pursuant to Division Special Order No. 001 series of 2003 dated June 18, 2003, Cuanan was reinstated to his former position as school principal effective April 30, 2003.20 In Division Special Order No. 285, series of 2003 dated July 8, 2003, Cuanan was directed to return to duty. 21 Based thereon, Cuanan requested payment of salaries and his inclusion in the payroll, which the Division School Superintendent of Nueva Ecija duly endorsed on November 7, 2003.22

However, on October 22, 2004, the CSC issued Resolution No. 04114723 setting aside CSC Resolution No. 030069 dated January 20, 2003. It found Cuanan guilty of Sexual Harassment, Grave Misconduct and Conduct Grossly Prejudicial to the Best Interest of the Service and meted out the penalty of dismissal from the service with forfeiture of retirement benefits, cancellation of his service eligibility, and perpetual disqualification from holding public office. Cuanan received a copy of the Resolution on November 9, 2004.24

Thirteen days later, or on November 22, 2004, Cuanan filed a petition for certiorari25 with the CA seeking to annul Resolution No. 041147, alleging that the CSC should not have entertained the petition for review/reconsideration since the DepEd was not the complainant or the party adversely affected by the resolution; that the petition for review/reconsideration was filed out of time; and that Cuanan was not furnished copies of the pleadings filed by the DepEd in violation of procedural due process.

The DepEd sought the dismissal of the petition on the ground of improper remedy, the mode of review from a decision of the CSC being a petition for review under Rule 43 of the Rules of Court.

On May 16, 2005, the CA rendered a Decision26 granting the petition for certiorari and setting aside CSC Resolution No. 041147 dated October 12, 2004. The CA held that while a motion for reconsideration and a petition for review under Rule 43 were available remedies, Cuanan's recourse to a petition for certiorari was warranted, since the act complained of was patently illegal; that the CSC gravely abused its discretion in granting the petition for review/reconsideration filed by the DepEd without regard for Cuanan's fundamental right to due process, since he was not duly notified of the petition for review/reconsideration, nor was he required by the CSC to file a comment thereon, much less, given a copy of the said petition; that the DepEd failed to establish that the resolution was not yet
















final and executory when it filed its petition for review/reconsideration.

DepEd filed a Motion for Reconsideration,27 but the CA denied the same in its Resolution28 dated July 18, 2005.

Hence, the present petition on the following grounds:

I

WITH DUE RESPECT, THE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW IN TAKING COGNIZANCE OF THE PETITION IN CA-G.R. SP NO. 87499, THE SAME NOT BEING THE PROPER REMEDY IN ASSAILING CSC RESOLUTION NO. 041147 DATED OCTOBER 22, 2004.

II

WITH DUE RESPECT, THE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW IN ADJUDGING CSC AS HAVING COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING RESOLUTION NO. 041147 DATED OCTOBER 22, 2004.29

DepEd contends that the CA should have dismissed outright the petition for certiorari because CSC decisions are appealable to the CA by petition for review under Rule 43; that the filing of a motion for reconsideration was a precondition to the filing of a petition for certiorari under Rule 65; that the DepEd, even if not the complainant, may question the resolution of the CSC; that Cuanan failed to prove that the CSC's petition for review/reconsideration was not seasonably filed; that even if Cuanan was not served a copy of the pleadings filed by the DepEd, the CSC was not bound by procedural rules.

Cuanan, on the other hand, contends that the DepEd cannot file a motion for reconsideration from the CSC Resolution exonerating him, since it is not the complainant in the administrative case and therefore not a party adversely affected by the decision therein; that even if DepEd may seek reconsideration of the CSC Resolution, the petition for review/reconsideration was filed out of time; and that Cuanan's right to due process was violated when he was not given a copy of the pleadings filed by the DepEd or given the opportunity to comment thereon.

The Court finds it necessary, before delving on the grounds relied upon by the DepEd in support of the petition, to first resolve the question of whether the DepEd can seek reconsideration of the CSC Resolution exonerating Cuanan.

In a long line of cases, beginning with Civil Service Commission v. Dacoycoy,30 and reiterated in Philippine National Bank v. Garcia, Jr.,31 the Court has maintained that the disciplining authority qualifies as a party adversely affected by the judgment, who can file an appeal of a judgment of exoneration in an administrative case. CSC Resolution No. 02160032 allows the disciplining authority to appeal from a decision exonerating an erring employee, thus:

Section 2. Coverage and Definition of Terms. - x x x (l) PARTY ADVERSELY AFFECTED refers to the respondent against whom a decision in a disciplinary case has been rendered or to the disciplining authority in an appeal from a decision exonerating the said employee. (Emphasis supplied)

Hence, Cuanan's exoneration under CSC Resolution No. 030069 may be subject to a motion for reconsideration by the DepEd which, as the appointing and disciplining authority, is a real party in interest.

Now, as to the merits of DepEd's arguments, the Court finds none.

The remedy of an aggrieved party from a resolution issued by the CSC is to file a petition for review







thereof under Rule 4333 of the Rules of Court within fifteen days from notice of the resolution. Recourse to a petition for certiorari under Rule 65 renders the petition dismissible for being the wrong remedy. Nonetheless, there are exceptions to this rule, to wit: (a) when public welfare and the advancement of public policy dictates; (b) when the broader interest of justice so requires; (c) when the writs issued are null and void; or (d) when the questioned order amounts to an oppressive exercise of judicial authority.34 As will be shown forthwith, exception (c) applies to the present case.

Furthermore, while a motion for reconsideration is a condition precedent to the filing of a petition for certiorari, immediate recourse to the extraordinary remedy of certiorari is warranted where the order is a patent nullity, as where the court a quo has no jurisdiction; where petitioner was deprived of due process and there is extreme urgency for relief; where the proceedings in the lower court are a nullity for lack of due process; where the proceeding was ex parte or one in which the petitioner had no opportunity to object.35 These exceptions find application to Cuanan's petition for certiorari in the CA.

At any rate, Cuanan's petition for certiorari before the CA could be treated as a petition for review, the petition having been filed on November 22, 2004, or thirteen (13) days from receipt on November 9, 2004 of CSC Resolution No. 041147, clearly within the 15-day reglementary period for the filing of a petition for review.36 Such move would be in accordance with the liberal spirit pervading the Rules of Court and in the interest of substantial justice.37

Furthermore, CSC Resolution No. 030069 has long become final and executory. It must be noted that the records show that copies of CSC Resolution No. 030069 were duly sent to the parties, including DepEd, on January 23, 2003.38 Cuanan received a copy thereof on January 31, 2003,39 while the DepEd requested a copy sometime in March 2003, or about two months later. Under the Rules of Evidence, it is presumed that official duty has been regularly performed, unless contradicted.40 This presumption includes that of regularity of service of judgments, final orders or resolutions.

Consequently, the burden of proving the irregularity in official conduct -- that is, non-receipt of the duly sent copy of CSC Resolution No. 030069 -- is on the part of the DepEd, which in the present case clearly failed to discharge the same.41 Thus, the presumption stands that CSC Resolution No. 030069 dated January 20, 2003 had already become final and executory when the DepEd filed its Petition for Review/Reconsideration on April 11, 2003, more than two months later.

It is elementary that once judgment has become final and executory, it becomes immutable and can no longer be amended or modified. In Gallardo-Corro v. Gallardo,42 this Court held:

Nothing is more settled in law than that once a judgment attains finality it thereby becomes immutable and unalterable. It may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land. Just as the losing party has the right to file an appeal within the prescribed period, the winning party also has the correlative right to enjoy the finality of the resolution of his case. The doctrine of finality of judgment is grounded on fundamental considerations of public policy and sound practice, and that, at the risk of occasional errors, the judgments or orders of courts must become final at some definite time fixed by law; otherwise, there would be no end to litigations, thus setting to naught the main role of courts of justice which is to assist in the enforcement of the rule of law and the maintenance of peace and order by settling justiciable controversies with finality.43

Moreover, while it is true that administrative tribunals exercising quasi-judicial functions are free from the rigidity of certain procedural requirements, they are bound by law and practice to observe the












fundamental and essential requirements of due process in justiciable cases presented before them.44

The relative freedom of the CSC from the rigidities of procedure cannot be invoked to evade what was clearly emphasized in the landmark case of Ang Tibay v. Court of Industrial Relations:45

that all administrative bodies cannot ignore or disregard the fundamental and essential requirements of due process.

Furthermore, Section 43.A.46 of the Uniform Rules in Administrative Cases in the Civil Service provides:

Section 43.A. Filing of Supplemental Pleadings. - All pleadings filed by the parties with the Commission, shall be copy furnished the other party with proof of service filed with the Commission.

Any supplemental pleading to supply deficiencies in aid of an original pleading but which should not entirely substitute the latter can be filed only upon a favorable action by the Commission on the motion of a party to the case. The said motion should be submitted within five (5) days from receipt of a copy of the original pleading and it is discretionary upon the Commission to allow the same or not or even to consider the averments therein.(Emphasis supplied)

Cuanan undoubtedly was denied procedural due process. He had no opportunity to participate in the proceedings for the petition for review/ reconsideration filed by the DepEd, since no copy of the pleadings filed by the DepEd were served upon him or his counsel; nor was he even required by the CSC to file his comments thereon. Considering that pleadings filed by the DepEd were not served upon Cuanan, they may be treated as mere scraps of paper which should not have merited the attention or consideration of the CSC.

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 87499 are AFFIRMED.

SO ORDERED.

OFFICE OF THE OMBUDSMAN,

Petitioner,

- versus -

G.R. No. 168309

Present:

YNARES-SANTIAGO, J.,

Chairperson,

AUSTRIA-MARTINEZ,

style="font-size:14.0pt;mso-




MARIAN D. TORRES and MARICAR D. TORRES,

Respondents.

bidi-font-size:10.0pt"CORONA,*

NACHURA, and

REYES, JJ.

Promulgated:

January 29, 2008

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

This is a petition[1] for review on certiorari under Rule 45 of the Rules of Court

filed by petitioner Office of the Ombudsman seeking the reversal of the Decision[2]

dated style="font-size:

14.0pt;line-height:150%"January 6, 2004 and the Resolution[3] dated style="font-size:

14.0pt;line-height:150%"May 27, 2005 of the Court of Appeals (CA) in CA-G.R. SP No.

69749.

The case arose from an administrative complaint for Dishonesty, Grave

Misconduct, and Falsification of Official Document filed before the Office of the

Ombudsman (docketed as OMB-ADM-0-00-0926) by then Barangay Chairman

Romancito L. Santos of Concepcion, Malabon, against Edilberto Torres (Edilberto),

http://sc.judiciary.gov.ph/jurisprudence/2008/jan2008/168309.htm#_ftn4




Maricar D. Torres (Maricar), and Marian D. Torres (Marian), then Municipal Councilor,

Legislative Staff Assistant, and Messenger, respectively, of the Sangguniang Bayan of

Malabon. Maricar and Marian are daughters of Edilberto.

Maricar was appointed as Legislative Staff Assistant on style="font-size:14.0pt;line-

height:150%"February 16, 1995, while Marian was appointed as Messenger on style="font-

size:14.0pt;line-height:150%"May 24, 1996. At the time of their public employment, they

were both enrolled as full-time regular college students – Maricar, as a full-time student

at the University of Santo Tomas (UST) and Marian as a dentistry-proper student at the

style="font-size:14.0pt;line-height:

150%"College of style="font-size:14.0pt;line-height:

150%"Dentistry of style="font-size:14.0pt;line-height:150%"Centro style="font-size:14.0pt;line-

height:150%"Escolar style="font-size:14.0pt;line-height:150%"University. During the period

subject of this case, they were able to collect their respective salaries by submitting

Daily Time Records (DTR) indicating that they reported for work every working day,

from style="font-size:14.0pt;line-height:150%"8:00 a.m. to style="font-size:14.0pt;line-

height:150%"5:00 p.m.

After due proceedings held in the Office of the Ombudsman, Graft Investigation Officer

(GIO) Moreno F. Generoso, in the Decision[4] dated November 9, 2001, found Maricar

and Marian administratively guilty of Dishonesty and Falsification of Official Document

and recommended the imposition of the penalty of dismissal from the service. The

charge against Edilberto was dismissed, having become moot and academic in view of

his re-election on May 14, 2001 in accordance with the ruling in Aguinaldo v. Santos[5]

that “a public official cannot be removed for administrative misconduct committed

during a prior term, since his re-election to office operates as a condonation of the

officer’s previous misconduct to the extent of cutting off the right to remove him



therefor." Upon recommendation of Deputy Special Prosecutor Robert E. Kallos,

Ombudsman Aniano A. Desierto affirmed the findings of GIO Generoso but tempered

the penalty to one (1) year suspension from service without pay.

Aggrieved, Maricar and Marian went to the CA via a petition[6] for certiorari

under Rule 65 of the Rules of Court.

In a Decision dated style="font-size:14.0pt;line-height:150%"January 6, 2004, the CA

granted the petition. While affirming the findings of fact of the Office of the

Ombudsman, the CA set aside the finding of administrative guilt against Maricar and

Marian ratiocinating in this wise:

It is undisputed that petitioners are confidential employees of their father. As such, the task they were required to perform, is upon the instance of their father, and the time they were required to report may be intermittent. To our mind, the false entries they made in their daily time records on the specific dates contained therein, had been made with no malice or deliberate intent so as to constitute falsification. The entries made may not be absolutely false, they may even be considered as having been made with a color of truth, not a downright and willful falsehood which taken singly constitutes falsification of public documents. As Cuello Calon stated: “La mera inexactud no es bastante para integrar este delito.” In the present case, the daily time records have already served their purpose. They have not caused any damage to the government or third person because under the facts obtaining, petitioners may be said to have rendered service in the interest of the public, with proper permission from their superior.

It may be true that a daily time record is an official document. It is not falsified if it does not pervert its avowed purpose as when it does not cause damage to the government. It may be different in the case of a public document with continuing interest affecting the public welfare, which is naturally damaged if that document is falsified when the truth is necessary for the safeguard and protection of that general interest. The keeping and submission of daily time records within the context of petitioners’ employment, should be taken only for the sake of administrative procedural convenience or as a matter of practice, but not for reason of strict legal obligation.

Assuming that petitioners are under strict legal obligation to keep and submit daily time records, still we are disposed to the view that the alleged false entries do not constitute falsification for having been made with no malice or deliberate intent.


The following pronouncement in the case of Lecaroz vs. Sandiganbayan may serve as a guidepost, to wit: “[I]f what is proven is mere judgmental error on the part of the person committing the act, no malice or criminal intent can be rightfully imputed to him. x x x. Ordinarily, evil intent must unite with an unlawful act for a crime to exist. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting. As a general rule, ignorance or mistake as to particular facts, honest and real, will exempt the doer from felonious responsibility. The exception of course is neglect in the discharge of duty or indifference to consequences, which is equivalent to criminal intent, for in this instance, the element of malicious intent is supplied by the element of negligence and imprudence. In the instant case, there are clear manifestations of good faith and lack of criminal intent on the part of petitioners.”

As a final note, there may be some suspicions as to the real intention of private complainant in instituting the action before public respondent, caution should be taken to prevent the development of circumstances that might inevitably impair the image of the public office. Private complainant is a government official himself, as such he should avoid so far as reasonably possible, a situation which would normally tend to arouse any reasonable suspicion that he is utilizing his official position for personal gain or advantage to the prejudice of party litigants or the public in general. For “there may be occasion then where the needs of the collectivity that is the government may collide with his private interest as an individual.”

In closing, it must be borne in mind that the evident purpose of requiring government employees to keep a daily time record is to show their attendance in office to work and to be paid accordingly. Closely adhering to the policy of no work no pay, a daily time record is primarily, if not solely, intended to prevent damage or loss to the government as would result in instances where it pays an employee for no work done. The integrity of the daily time record as an official document, however, remains untarnished if the damage sought to be prevented has not been produced. The obligation to make entries in the daily time records of employees in the government service is a matter of administrative procedural convenience in the computation of salary for a given period, characteristically, not an outright and strict measure of professional discipline, efficiency, dedication, honesty and competence. The insignificant transgression by petitioners, if ever it is one, would not tilt the scales of justice against them, for courts must always be, as they are, the repositories of fairness and justice.[7]

Petitioner moved to reconsider the reversal of its Decision by the CA, but the

motion was denied in the CA Resolution dated style="font-size:14.0pt;line-height:150%"May

27, 2005. Hence, this petition based on the following grounds:

I

THE FILLING-UP OF ENTRIES IN THE OFFICIAL DAILY TIME RECORDS (DTRs) IS


NOT A MATTER OF ADMINISTRATIVE PROCEDURAL CONVENIENCE, BUT RATHER REQUIRED BY CIVIL SERVICE LAW TO ENSURE THAT THE PROPER LENGTH OF WORK-TIME IS OBSERVED BY PUBLIC OFFICIALS AND EMPLOYEES, INCLUDING CONFIDENTIAL EMPLOYEES LIKE HEREIN PRIVATE RESPONDENTS. THE FALSIFICATION OF DTRs WOULD RENDER THE AUTHORS THEREOF ADMINISTRATIVELY LIABLE FOR DISHONESTY AND GRAVE MISCONDUCT FOR THE DAMAGING FALSE NARRATION AND THE COLLECTION OF FULL COMPENSATION FOR INEXISTENT WORK.

II

THE ELEMENT OF DAMAGE TO THE GOVERNMENT IS NOT A REQUISITE FOR ONE TO BE HELD ADMINISTRATIVELY LIABLE FOR DISHONESTY AND MISCONDUCT. ASSUMING IT IS FOR ARGUMENT’S SAKE, DAMAGE WAS CAUSED THE GOVERNMENT WHEN PRIVATE RESPONDENTS FALSIFIED THEIR DAILY TIME RECORDS IN ORDER TO COLLECT THEIR SALARIES.

III

THE ELEMENT OF INTENT OR MALICE APPLIES TO CRIMINAL PROSECUTION, NOT TO AN OFFENSE OF DISHONESTY AND MISCONDUCT.[8]

Petitioner’s first submission is that the filling-up of entries in the official DTR is

not a matter of administrative procedural convenience but is a requirement by Civil

Service Law to ensure that the proper length of work-time is observed by all public

officials and employees, including confidential employees such as respondents. It argues

that DTRs, being representations of the compensable working hours rendered by a

public servant, ensure that the taxpaying public is not shortchanged. To bolster this

position, petitioner cited Rule XVII on Government Office Hours of the Omnibus Rules

Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service

Laws, to wit:

SECTION 1. It shall be the duty of each head of department or agency to require all officers and employees under him to strictly observe the prescribed office hours. When the head of office, in the exercise of discretion allows government officials and employees to leave the office during the office


hours and not for official business, but to attend socials/events/functions and/or wakes/interments, the same shall be reflected in their time cards and charged to their leave credits.

SEC. 2. Each head of department or agency shall require a daily time record of attendance of all the officers and employees under him including those serving in the field or on the water, to be kept in the proper form and, whenever possible, registered in the bundy clock.

Service “in the field” shall refer to service rendered outside the office proper and service “on the water” shall refer to service rendered on board a vessel which is the usual place of work.

SEC. 3. Chiefs and Assistant Chiefs of agencies who are appointed by the President, officers who rank higher than these chiefs and assistant chiefs in the three branches of government, and other presidential appointees need not punch in the bundy clock, but attendance and all absences of such officers must be recorded.

SEC. 4. Falsification or irregularities in the keeping of time records will render the guilty officer or employee administratively liable without prejudice to criminal prosecution as the circumstances warrant.

SEC. 5. Officers and employees of all departments and agencies except those covered by special laws shall render not less than eight hours of work a day for five days a week or a total of forty hours a week, exclusive of time for lunch. As a general rule, such hours shall be from eight o’clock in the morning to twelve o’clock noon and from one o’clock to five o’clock in the afternoon on all days except Saturdays, Sundays and Holidays.

SEC. 6. Flexible working hours may be allowed subject to the discretion of the head of department or agency. In no case shall the weekly working hours be reduced in the event the department or agency adopts the flexi-time schedule in reporting for work.

SEC. 7. In the exigency of the service, or when necessary by the nature of the work of a particular agency and upon representations with the Commission by the department heads concerned, requests for the rescheduling or shifting of work schedule of a particular agency for a number of working days less than the required five days may be allowed provided that government officials and employees render a total of forty hours a week and provided further that the public is assured of core working hours of eight in the morning to five in the afternoon continuously for the duration of the entire workweek.

SEC. 8. Officers and employees who have incurred tardiness and undertime regardless of minutes per day exceeding [at least] ten times a month for two (2) consecutive months or for 2 months in a semester shall be subject to disciplinary action.[9]


Petitioner posits that, by reason of the above provisions, making false entries in the

DTRs should not be treated in a cavalier fashion, but rather with a modicum of

sacredness because the DTR mirrors the fundamental maxim of transparency, good

governance, public accountability, and integrity in the public service pursuant to the

constitutional precept that “public office is a public trust.” Consequently, the officer or

employee who falsifies time records should incur administrative liability.

On its second and third submissions, petitioner assailed the position of the CA that

respondents cannot be held guilty of falsification because they did not cause any damage

to the government and there was no intent or malice on their part when they made the

false entries in their respective DTRs during the questioned period of service.

According to petitioner, respondents were not criminally prosecuted for falsification

under the Revised Penal Code, but were being held administratively accountable for

dishonesty, grave misconduct, and falsification of official documents; thus, the elements

of damage and intent or malice are not prerequisites. It further claimed that for this

purpose, only substantial evidence is required, and this had been strongly established.

Petitioner also argued that, even if the element of damage is mandatory, respondents had

caused damage to the government when they received their full salaries for work not

actually rendered.

In their Comment,[10] respondents claimed that the CA correctly dismissed the

administrative charges against them as the integrity of their DTRs had remained

untarnished and that they acted in good faith in making the entries in their DTRs. They

said that the CA clearly elaborated the legal basis for its ruling in their favor. They even

argued that the administrative charges lodged by Romancito Santos were based on mere

conjectures and conclusions of fact, such that it was not impossible for college students


to work eight (8) hours a day and attend classes. They further claimed that petitioner

failed to prove that they actually attended their classes which they were enrolled in.

Respondents also argued that petitioner erred in not having dismissed outright the

administrative charges against them because, at the time the complaint was filed, the

charges had already prescribed under Section 20 (5) of Republic Act No. 6770 (The

Ombudsman Act of 1989), to wit:

(5) The complaint was filed after one year from the occurrence of the act or omission complained of.

They said that the acts complained of occurred in 1996 to 1997, while the case was filed

only on February 2000, or after the lapse of more or less three (3) years.

Respondent Maricar also asseverated that the doctrine laid down in Aguinaldo v.

Santos[11] should also apply to her considering that she was elected as City Councilor

of Malabon City in the 2004 elections. She also claimed that the instant case adversely

affected their lives, particularly in her case, for while she graduated from the University

of the East College of Law in 2004, she was only able to take the bar examinations in

2005 due to the pendency of the administrative case against her. She also cited the fact

that the criminal case involving the same set of facts was dismissed, insinuating that, as

a result of this, the administrative case should have likewise been dismissed.

The petition is impressed with merit.

At the outset, it must be stressed that this is an administrative case for dishonesty, grave


misconduct, and falsification of official document. To sustain a finding of

administrative culpability only substantial evidence is required, not overwhelming or

preponderant, and very much less than proof beyond reasonable doubt as required in

criminal cases.[12] Substantial evidence means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.

The following facts are borne out by the records: (1) Maricar was appointed as

Legislative Staff Assistant in the Office of then Councilor of Malabon, Edilberto Torres,

on February 16, 1995;[13] (2) Marian was appointed as Messenger in the same office on

May 24, 1996;[14] (3) at the time of Maricar’s appointment to and employment in her

position (1995-1997), she was a full-time regular college student at UST;[15] (4) at the

time of Marian’s appointment and employment as messenger in her father’s office

(1996-2000), she was a full-time regular dentistry-proper student at the College of

Dentistry of Centro Escolar University;[16] (5) during the employment of respondents in

government service, they submitted DTRs indicating that they religiously reported for

work from 8:00 a.m. to 5:00 p.m. during work days;[17] (6) by reason thereof,

respondents collected their full salaries during the entire time of their employment in

their respective positions;[18] and, (7) these all occurred with the full knowledge and

consent of their father.[19]

It is also worthy to note that the factual finding made by petitioner, i.e., that

respondents made false entries in their respective DTRs for the period subject of this

case, was affirmed by the CA in the assailed Decision dated January 6, 2004.[20]

On the basis of these established facts, petitioner was correct in holding

respondents administratively guilty of dishonesty and falsification of official document.

Dishonesty is defined as the “disposition to lie, cheat, deceive, or defraud;










untrustworthiness, lack of integrity.”[21] Falsification of an official document, as an

administrative offense, is knowingly making false statements in official or public

documents. Both are grave offenses under the Uniform Rules on Administrative Cases

in the Civil Service, which carry with it the penalty of dismissal on the first offense.[22]

Falsification of DTRs amounts to dishonesty.[23] The evident purpose of requiring

government employees to keep a time record is to show their attendance in office to

work and to be paid accordingly. Closely adhering to the policy of no work-no pay, a

DTR is primarily, if not solely, intended to prevent damage or loss to the government as

would result in instances where it pays an employee for no work done.[24]

Respondents’ claim of good faith, which implies a sincere intent not to do any falsehood

or to seek any undue advantage, cannot be believed. This Court pronounced –

Good faith, here understood, is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage. An individual’s personal good faith is a concept of his own mind and, therefore, may not conclusively be determined by his protestations alone. It implies honesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry. The essence of good faith lies in an honest belief in the validity of one’s right, ignorance of a superior claim, and absence of intention to overreach another. x x x[25]

In this case, respondents knew fully well that the entries they made in their

respective DTRs were false considering that it was physically impossible for them to

have reported for full work days when during those times they were actually attending

their regular classes, which undoubtedly would take up most of the daytime hours of the

weekdays. With this knowledge, respondents did not bother to correct the DTR entries

to honestly reflect their attendance at their workplace and the actual work they

performed. Worse, they repeatedly did this for a long period of time, consequently






allowing them to collect their full salaries for the entire duration of their public

employment as staff members of their father.

Respondents’ protestations that petitioner failed to prove their actual attendance in

their regular classes and thus, suggest that they may not have been attending their

classes, is preposterous and incredible, simply because this is not in accord with the

natural course of things. The voluminous documentary evidence subpoenaed by

petitioner from UST and style="font-size:14.0pt;line-height:150%"Centro style="font-

size:14.0pt;line-height:150%"Escolar style="font-size:14.0pt;line-height:150%"University

showing the schedule of classes of respondents during the questioned period, along with

the certificates of matriculation painstakingly perused by GIO Generoso, strongly

militates against this claim. It would be the height of absurdity on the part of

respondents to voluntarily enroll in their respective courses, pay school fees, and not

attend classes but instead report for work. Even if this was remotely possible, such a

situation would be irreconcilable with the respondents having graduated from their

respective courses.

Without doubt, the scrutiny of the numerous school documents, the DTRs

submitted, and the payrolls from the office of the then Municipal Accountant of

Malabon overwhelmingly revealed that the classes in which respondents enrolled for

several school years were in stark conflict with the time entries in the DTRs, and several

payroll sheets showed that respondents collected their full salaries corresponding to the

DTR entries. These findings of fact made by petitioner, being supported by substantial

evidence, are conclusive;[26] more so that the finding of false entries in the DTRs was

affirmed by the CA.

Thus, the CA gravely erred when it exonerated respondents from administrative guilt


based on the findings of fact of petitioner which it even affirmed. The jurisprudence[27]

adopted by the appellate court in laying the legal basis for its ruling does not apply to the

instant case because said cases pertain to criminal liability for Falsification of Public

Document under the Revised Penal Code. The element of damage need not be proved to

hold respondents administratively liable.

But it cannot even be said that no damage was suffered by the government. When

respondents collected their salaries on the basis of falsified DTRs, they caused injury to

the government. The falsification of one’s DTR to cover up one’s absences or tardiness

automatically results in financial losses to the government because it enables the

employee concerned to be paid salaries and to earn leave credits for services which were

never rendered. Undeniably, the falsification of a DTR foists a fraud involving

government funds.[28]

Likewise, the existence of malice or criminal intent is not a prerequisite to declare the

respondents administratively culpable. What is merely required is a showing that they

made entries in their respective DTRs knowing fully well that they were false. This was

evident in the many documents viewed and reviewed by petitioner through GIO

Generoso.

On the issue of prescription, we agree with petitioner’s contention that the Office of the

Ombudsman is given by R.A. No. 6770 a wide range of discretion whether or not to

proceed with an investigation of administrative offenses even beyond the expiration of

one (1) year from the commission of the offense.[29]

Likewise, the dismissal of the criminal case involving the same set of facts cannot

benefit respondents to cause the dismissal of the administrative charges against them.




As we held in Tecson v. Sandiganbayan[30] --

[I]t is a basic principle of the law on public officers that a public official or employee is under a three-fold responsibility for violation of a duty or for a wrongful act or omission. This simply means that a public officer may be held civilly, criminally, and administratively liable for a wrongful doing. Thus, if such violation or wrongful act results in damages to an individual, the public officer may be held civilly liable to reimburse the injured party. If the law violated attaches a penal sanction, the erring officer may be punished criminally. Finally, such violation may also lead to suspension, removal from office, or other administrative sanctions. This administrative liability is separate and distinct from the penal and civil liabilities. x x x

Hence, there was no impropriety committed by petitioner when it conducted the

administrative investigation which led to the finding of guilt against respondents.

As regards the applicability of Aguinaldo, our pronouncement therein is clear that

condonation of an administrative offense takes place only when the public official is re-

elected despite the pendency of an administrative case against him. In the case of

Maricar, prior to her election as Councilor of now style="font-size:14.0pt;line-

height:150%"Malabon style="font-size:14.0pt;line-height:150%"City, she held an appointive,

not an elective, position, i.e., Legislative Staff Assistant, appointed by her very own

father, then Councilor Edilberto Torres.

As mentioned above, falsification of a DTR (an official document) amounts to

dishonesty. Thus, respondents should be held administratively liable. While dismissal

was originally recommended for imposition on respondents, the penalty was eventually

tempered to suspension of one (1) year without pay.

We agree with the imposition of the lower penalty considering that respondents’ public

employment with the then Sangguniang Bayan of Malabon, even while they were


regular college students, was of a confidential character, and the arrangement was with

the full knowledge and consent of their father who appointed them to their positions.

While this Court recognizes the relative laxity given to confidential employees in terms

of adjusted or flexible working hours, substantial non-attendance at work as blatant and

glaring as in the case of respondents cannot be countenanced. Collecting full salaries

for work practically not rendered is simply, downright reprehensible. Inevitably, this

leads to the erosion of the public’s faith in and respect for the government.

WHEREFORE, the Decision dated style="font-size:14.0pt;line-height:150%"January 6, 2004

and the Resolution dated style="font-size:14.0pt;line-height:150%"May 27, 2005 of the Court

of Appeals are REVERSED and SET ASIDE, and the Decision of the Office of the

Ombudsman dated style="font-size:14.0pt;line-height:150%"November 9, 2001 is

REINSTATED.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:


Associate Justice

Chairperson

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

RENATO C. CORONA

Associate Justice

RUBEN T. REYES

Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.


Associate Justice

Chairperson, Third Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO

Chief Justice`

[2011V360] DANILO MORO, Petitioner, versus GENEROSO REYES DEL CASTILLO, JR., RespondentDECISION

ABAD, J.:

This case is about the right of the petitioner to be reinstated through an action for quo warranto against the present holder meantime that petitioner has appealed from the Ombudsman’s decision dismissing him from the service for, among other grounds, misconduct in office.

The Facts and the Case

On December 7, 2005 the Ombudsman charged respondent Generoso Reyes Del Castillo, Jr. (Del Castillo), then Chief Accountant of the General Headquarters (GHQ) Accounting Center of the Armed Forces of the Philippines (AFP), with dishonesty, grave misconduct and conduct prejudicial to the best interest of the service in OMB-P-A-06-0031-A. The Ombudsman alleged that Del Castillo made false statements in his Statement of Assets and Liabilities from 1996 to 2004 and that he acquired properties manifestly out of proportion to his reported salary.

On April 1, 2006 the GHQ reassigned Del Castillo to the Philippine Air Force (PAF) Accounting Center by virtue of GHQ AFP Special Order 91 (SO 91).[1] Through the same order, petitioner Danilo Moro (Moro), then Chief Accountant of the Philippine Navy, took over the position of Chief Accountant of the GHQ Accounting Center.

Meantime, on August 30, 2006 the Ombudsman placed Del Castillo under preventive suspension for six months and eventually ordered his dismissal from the service on February 5, 2007.[2] The penalty imposed on him included cancellation of eligibility, forfeiture of retirement benefits, and perpetual disqualification from reemployment in the government. Del Castillo filed a motion for reconsideration, which is pending to this date.

Following the lapse of his six-month suspension or on March 12, 2007 Del Castillo attempted to reassume his former post of GHQ Chief Accountant. But, he was unable to do so since Moro declined to yield the position. Consequently, on April 4, 2007 Del Castillo filed a petition for quo warranto[3] against Moro with the Regional Trial Court[4] (RTC) of Parañaque City in Civil Case 07-0111.

Del Castillo claimed that Moro was merely detailed as GHQ Chief Accountant when the Ombudsman placed Del Castillo under preventive suspension. Since the latter’s period of suspension already lapsed, he was entitled to resume his former post and Moro was but a usurper. [5]

For his part, Moro pointed out in his Answer[6] that his appointment under SO 91 as GHQ Chief Accountant was a permanent appointment. Indeed, the GHQ had already reassigned Del Castillo to the PAF Accounting Center even before the Ombudsman placed him under preventive suspension. Del Castillo was, therefore, not automatically entitled to return to his former GHQ post despite the lapse of

http://www.ibpelibrary.com/2011/2011v360-danilo-moro-petitioner-versus-generoso-reyes-del-castillo-jr-respondent/



his suspension.

During the pendency of the quo warranto case before the RTC, Del Castillo refused to report at the PAF Accounting Center despite a memorandum from the AFP Acting Deputy Chief of Staff for Personnel that carried the note and approval of the AFP Chief of Staff.[7] Del Castillo insisted that he could not be placed under the PAF since he was the GHQ Chief Accountant.[8]

On October 10, 2007 the RTC dismissed Del Castillo’s petition,[9] holding that Moro held the position of GHQ Chief Accountant pursuant to orders of the AFP Chief of Staff. Moreover, the RTC found Del Castillo’s reassignment to the PAF Accounting Center valid. Under the Civil Service Commission (CSC) Rules, a reassignment may be made for a maximum of one year. Since Del Castillo’s preventive suspension kept him away for only six months, he had to return to the PAF to complete his maximum detail at that posting. Besides, said the trial court, the Ombudsman’s February 5, 2007 Order, which directed Del Castillo’s dismissal from the service for grave misconduct, among others, rendered the petition moot and academic. The RTC denied Del Castillo’s motion for reconsideration.

Instead of appealing from the order of dismissal of his action, Del Castillo filed a petition for certiorari with the Court of Appeals (CA) in CA-G.R. SP 103470. On October 13, 2008 the CA reversed the RTC Decision.[10] Notwithstanding the procedural error, the CA gave due course to the petition on grounds of substantial justice and fair play. It held that Del Castillo’s reassignment exceeded the maximum of one year allowed by law and that SO 91 was void since it did not indicate a definite duration for such reassignment. Further, the CA held as non-executory the Ombudsman’s dismissal of Del Castillo in view of his appeal from that dismissal. With the denial of his motion for reconsideration, Moro filed this petition via Rule 45 of the Rules of Court.

The Issue Presented

The key issue in this case is whether or not respondent Del Castillo is entitled to be restored to the position of Chief Accountant of the GHQ Accounting Center that he once held.

The Court’s Ruling

An action for quo warranto under Rule 66 of the Rules of Court may be filed against one who usurps, intrudes into, or unlawfully holds or exercises a public office.[11] It may be brought by the Republic of the Philippines or by the person claiming to be entitled to such office.[12] In this case, it was Del Castillo who filed the action, claiming that he was entitled as a matter of right to reassume the position of GHQ Chief Accountant after his preventive suspension ended on March 11, 2007. He argues that, assuming his reassignment to the PAF Accounting Center was valid, the same could not exceed one year. Since his detail at the PAF took effect under SO 91 on April 1, 2006, it could last not later than March 31, 2007. By then, Moro should have allowed him to return to his previous posting as GHQ Chief Accountant.

But, as Moro points out, he had been authorized under SO 91 to serve as GHQ Chief Accountant. Del Castillo, on the other hand, had been ordered dismissed from the service by the Ombudsman in OMB-P-A-06-0031-A. Consequently, he cannot reassume the contested position.

Del Castillo of course insists, citing Lapid v. Court of Appeals,[13] that only decisions of the Ombudsman that impose the penalties of public censure, reprimand, or suspension of not more than a month or a fine of one month salary are final, executory, and unappealable. Consequently, when the penalty is dismissal as in his case, he can avail himself of the remedy of appeal and the execution of the decision against him would, in the meantime, be held in abeyance.

But, the Lapid case has already been superseded by In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of DPWH.[14] The Court held in Datumanong that Section 7, Rule

III of Administrative Order 7, as amended by Administrative Order 17,[15] clearly provides that an appeal shall not stop a decision of the Ombudsman from being executory. The Court later reiterated this ruling in Office of the Ombudsman v. Court of Appeals.[16]

In quo warranto, the petitioner who files the action in his name must prove that he is entitled to the subject public office. Otherwise, the person who holds the same has a right to undisturbed possession and the action for quo warranto may be dismissed.[17]

Here, Del Castillo brought the action for quo warranto in his name on April 4, 2007, months after the Ombudsman ordered his dismissal from service on February 5, 2007. As explained above, that dismissal order was immediately executory even pending appeal. Consequently, he has no right to pursue the action for quo warranto or reassume the position of Chief Accountant of the GHQ Accounting Center.

WHEREFORE, the Court GRANTS the petition, REVERSES and SETS ASIDE the decision dated October 13, 2008 of the Court of Appeals in CA-G.R. SP 103470, and REINSTATES the October 10, 2007 decision of the Regional Trial Court in Civil Case 07-0111, which dismissed the complaint for quo warranto.

SO ORDERED.

ROBERTO A. ABADAssociate Justice

WE CONCUR:

ANTONIO T. CARPIOAssociate JusticeChairperson

ANTONIO EDUARDO B. NACHURAAssociate Justice

DIOSDADO M. PERALTAAssociate Justice

JOSE CATRAL MENDOZAAssociate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIOAssociate JusticeChairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONAChief Justice

[1] Records, p. 113.

[2] Rollo, pp. 88-115.

[3] Records, pp. 41-54.

[4] Branch 274.

[5] Records, pp. 47-48.

[6] Id. at 99-111.

[7] Id. at 121-122.

[8] Id. at 123.

[9] Rollo, pp. 48-54. Penned by Presiding Judge Fortunito L. Madrona.

[10] Id. at 58-87. Penned by Associate Justice Pampio A. Abarintos and concurred in by Associate Justices Amelita G. Tolentino and Arcangelita M. Romilla-Lontok.

[11] Rule 66, Section 1. Action by Government against individuals.

An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against:

(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise;

(b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or

(c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act.

[12] Rule 66, Section 5. When an individual may commence such an action.

A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action therefor in his own name.

[13] G.R. No. 142261, June 29, 2000, 334 SCRA 738.

[14] G.R. No. 150274, August 4, 2006, 497 SCRA 626.

[15] Section 7. Finality and execution of decision. – Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final, executory and unappealable. In all other cases, the decision may be appealed to the Court of Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules of Court, within fifteen (15) days from the receipt of the written Notice of the Decision or Order denying the Motion for Reconsideration.

An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal.

A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be ground for disciplinary action against said officer. (Emphasis supplied)

[16] G.R. No. 159395, May 7, 2008, 554 SCRA 75, 93-94.

[17] Feliciano v. Villasin, G.R. No. 174929, June 27, 2008, 556 SCRA 348, 366.

G.R. No. 178021 January 25, 2012

REPUBLIC OF THE PHILIPPINES, represented by the CIVIL SERVICE COMMISSION, Petitioner, vs.MINERVA M.P. PACHEO, Respondent.

D E C I S I O N

MENDOZA, J.:

Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court filed by petitioner Republic of the Philippines, represented by the Office of the Solicitor General (OSG), which assails the February 22, 2007 Decision1 and the May 15, 2007 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 93781. The CA reversed the November 21, 2005 Resolution of the Civil Service Commission (CSC) declaring the re-assignment of respondent Minerva M.P. Pacheos (Pacheo) not valid and ordering her reinstatement to her original station but without backwages under the principle of "no work, no pay."

The Facts

Pacheo was a Revenue Attorney IV, Assistant Chief of the Legal Division of the Bureau of Internal Revenue (BIR) in Revenue Region No. 7 (RR7), Quezon City.

On May 7, 2002, the BIR issued Revenue Travel Assignment Order (RTAO) No. 25-2002,3 ordering the reassignment of Pacheo as Assistant Chief, Legal Division from RR7 in Quezon City to RR4 in San Fernando, Pampanga. The BIR cited exigencies of the revenue service as basis for the issuance of the said RTAO.

Pacheo questioned the reassignment through her Letter dated May 9, 20024 addressed to Rene G. Banez, then Commissioner of Internal Revenue (CIR). She complained that the transfer would mean economic dislocation since she would have to spend P 200.00 on daily travel expenses or approximately P 4,000.00 a month. It would also mean physical burden on her part as she would be compelled to wake up early in the morning for her daily travel from Quezon City to San Fernando, Pampanga, and to return home late at night from San Fernando, Pampanga to Quezon City. She was of the view that that her reassignment was merely intended to harass and force her out of the BIR in the guise of exigencies of the revenue service. In sum, she considered her transfer from Quezon City to Pampanga as amounting to a constructive dismissal.

Due to the then inaction of the BIR, Pacheo filed a complaint5 dated May 30, 2002, before the CSC- National Capital Region (CSC-NCR), praying for the nullification of RTAO No. 25-2002. In its July 22, 2002 Order,6 the CSC-NCR treated Pacheo’s Complaint as an appeal and dismissed the same, without prejudice, for failure to comply with Sections 73 and 74 of Rule V(b) of the Uniform Rules on Administrative Cases in the Civil Service.7

In its Letter-reply8 dated September 13, 2002, the BIR, through its Deputy Commissioner for Legal and Inspection Group, Edmundo P. Guevara (Guevara), denied Pacheo’s protest for lack of merit. It contended that her reassignment could not be considered constructive dismissal as she maintained her position as Revenue Attorney IV and was designated as Assistant Chief of Legal Division. It

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emphasized that her appointment to the position of Revenue Attorney IV was without a specific station. Consequently, she could properly be reassigned from one organizational unit to another within the BIR. Lastly, she could not validly claim a vested right to any specific station, or a violation of her right to security of tenure.

Not in conformity with the ruling of the BIR, Pacheo appealed her case before the CSC.

On November 21, 2005, the CSC issued Resolution No. 0516979 granting Pacheo’s appeal, the dispositive portion of which reads:

WHEREFORE, the instant appeal of Minerva M.P. Pacheo is hereby GRANTED. The Bureau of Internal Revenue Revenue Travel Assignment Order No. 25-2002 dated May 7, 2002, on the reassignment of Pacheo to the Legal Division Revenue Region No. 4 San Fernanado, Pampanga, is hereby declared NOT VALID. ACCORDINGLY, Pacheo should now be recalled to her original station. This Commission, however rules and so holds that the withholding by the BIR of Pacheo’s salary for the period she did not report to work is justified.

The CSCRO No. III is directed to monitor the implementation of this Resolution.

In granting Pacheo’s appeal, the CSC explained:

On the second issue, this Commission finds merit in appellant’s contention that her reassignment in not valid.

Of pertinent application thereto is Rule III, Section 6 of CSC Memorandum Circular No. 40, series of 1998, dated December 14, 1998, which provides:

Section 6. Other Personnel Movements. The following personnel movements which will not require issuance of an appointment shall nevertheless require an office order by duly authorized official.

a. Reassignment – Movement of an employee from one organizational unit to another in the same department or agency which does not involve reduction in rank, status or salary. If reassignment is done without consent of the employee being reassigned it shall be allowed for a maximum period of one year. Reassignment is presumed to be regular and made in the interest of public service unless proven otherwise or it constitutes constructive dismissal.

No assignment shall be undertaken if done indiscriminately or whimsically because the law is not intended as a convenient shield for the appointing/ disciplining authority to harass or oppress a subordinate on the pretext of advancing and promoting public interest.

Reassignment of small salaried employee is not permissible if it causes significant financial dislocation.’

Although reassignment is a management prerogative, the same must be done in the exigency of the service without diminution in rank, status and salary on the part of the officer or employee being temporarily reassigned. Reassignment of ‘small salaried’ employees, however is not allowed if it will cause significant financial dislocation to the employee reassigned. Otherwise the Commission will have to intervene.

The primary purpose of emphasizing ‘small salaried employees’ in the foregoing rule is to protect the ‘rank and file’ employees from possible abuse by the management in the guise of transfer/reassignment. The Supreme Court in Alzate v. Mabutas, (51 O.G. 2452) ruled:

‘ x x x [T]he protection against invalid transfer is especially needed by lower ranking employees. The Court emphasized this need when it ruled that officials in the unclassified service, presidential appointees, men in the government set up occupy positions in the higher echelon should be entitled to


security of tenure, unquestionable a lesser sol[ci]itude cannot be meant for the little men, that great mass of Common underprivileged employees-thousand there are of them in the lower bracket, who generally are without connections and who pin their hopes of advancement on the merit system instituted by our civil service law.’

In other words, in order to be embraced in the term ‘small-salaried employees’, the latter must belong to the ‘rank and file’; and, his/her salary would be significantly reduced by virtue of the transfer/reassignment. ‘Rank and file’ was categorized as those occupying the position of Division Chief and below, pursuant to CSC Resolution No. 1, series of 1991, dated January 28, 1991.

The facts established on record show that Pacheo belongs to the rank and file receiving an average monthly salary of Twenty Thousand Pesos (P 20,000.00) under the salary standardization law and a monthly take home pay of Fourteen Thousand Pesos (P 14,000.00). She has to spend around Four Thousand Pesos (P 4,000.00) a month for her transportation expenses as a consequence of her reassignment, roughly twenty eight percent (28%) of her monthly take home pay. Clearly, Pacheo’s salary shall be significantly reduced as a result of her reassignment.

In ANORE, Ma. Theresa F., this Commission ruled:

‘Anore, a lowly salaried employee, was reassigned to an isolated island 15 kilometers away from her original place of assignment. She has to travel by boat with only one trip a day to report to her new place of assignment in an office without any facilities, except its bare structure. Worst, the municipality did not provide her with transportation allowance. She was forced to be separated from her family, look for a boarding house where she can stay while in the island and spend for her board and lodging. The circumstances surrounding Anore’s reassignment is exactly the kind of reassignment that is being frowned upon by law.’

This Commission, however, rules and so holds that the withholding by the BIR of her salaries is justified as she is not entitled thereto since she is deemed not to have performed any actual work in the government on the principle of no work no pay.

Accordingly, Pacheo should now be reinstated to her original station without any right to claim back salary as she did not report to work either at her new place of assignment or at her original station.10

[Emphases in the original]

Still not satisfied, Pacheo moved for reconsideration. She argued that the CSC erred in not finding that she was constructively dismissed and, therefore, entitled to back salary.

On March 7, 2006, the CSC issued Resolution No. 06039711 denying Pacheo’s motion for reconsideration.

Undaunted, Pacheo sought recourse before the CA via a petition for review.

In its February 22, 2007 Decision, the CA reversed the CSC Resolution and ruled in favor of Pacheo, the fallo of which states:

WHEREFORE, the petition is GRANTED. Resolution nos. 051697 and 060397 dated November 21, 2005 and March 7, 2006, respectively, of the Civil Service Commission are REVERSED and SET ASIDE. A new judgment is hereby entered finding petitioner to have been constructively dismissed and ordering her immediate reinstatement with full backwages and benefits.

SO ORDERED.12

In setting aside CSC Resolution Nos. 051697 and 060397, the CA held that:

While this Court agrees that petitioner’s reassignment was not valid considering that a diminution in




salary is enough to invalidate such reassignment, We cannot agree that the latter has not been constructively dismissed as a result thereof.

It is well to remember that constructive dismissal does not always involve forthright dismissal or diminution in rank, compensation, benefits and privileges. For an act of clear discrimination, insensibility, or disdain by an employer may become so unbearable on the part of the employee that it could foreclose any choice by him except to forgo his continued employment.

The management prerogative to transfer personnel must be exercised without grave abuse of discretion and putting to mind the basic elements of justice and fair play. The employer must be able to show that the transfer is not unreasonable, inconvenient, or prejudicial to the employee.

In this case, petitioner’s reassignment will result in the reduction of her salary, not to mention the physical burden that she would suffer in waking up early in the morning to travel daily from Quezon City to San Fernando, Pampanga and in coming home late at night.

Clearly, the insensibility of the employer is deducible from the foregoing circumstances and petitioner may have no other choice but to forego her continued employment.

Moreover, it would be inconsistent to hold that the reassignment was not valid due to the significant reduction in petitioner’s salary and then rule that there is no constructive dismissal just because said reduction in salary will not render petitioner penniless if she will report to her new place of assignment. It must be noted that there is constructive dismissal when the reassignment of an employee involves a diminution in pay.

Having determined that petitioner has been constructively dismissed as a result of her reassignment, We shall resolve whether or not she is entitled to backwages.

In denying petitioner’s claim for backwages, the CSC held:

This Commission, however, rules and so holds that the withholding by the BIR of her salaries is justified as she is not entitled thereto since she is deemed not to have performed any actual work in the government on the principle of no work no pay.

Accordingly, Pacheo should now be reinstated to her original station without any right to claim back salary as she did not report for work either at her new place of assignment or at her original station."

Pacheo, while belonging to the rank-and-file employees, is holding a responsible position as an Assistant Division Chief, who could not just abandon her duties merely because she protested her re-assignment and filed an appeal afterwards.

We do not agree.

If there is no work performed by the employee there can be no wage or pay, unless of course the laborer was able, willing and ready to work but was illegally locked out, dismissed or suspended. The "No work, no pay" principle contemplates a "no work" situation where the employees voluntarily absent themselves.

In this case, petitioner was forced to forego her continued employment and did not just abandon her duties. In fact, she lost no time in protesting her reassignment as a form of constructive dismissal. It is settled that the filing of a complaint for illegal dismissal is inconsistent with a charge of abandonment. The filing of the complaint is proof enough of his desire to return to work, thus negating any suggestion of abandonment.

Neither do we agree with the OSG when it opined that:

No one in the Civil Service should be allowed to decide on whether she is going to accept or not any

work dictated upon by the exigency of the service. One should consider that public office is a public trust and that the act of respondent CIR enjoys the presumption of regularity. To uphold the failure of respondent to heed the RTAO would result in chaos. Every employee would put his or her vested interest or personal opinion over and above the smooth functioning of the bureaucracy.

Security of tenure is a right of paramount value as recognized and guaranteed under Sec. 3, Art. XIII of the 1987 Constitution.

The State shall afford full protection to labor, xxx and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to xxx security of tenure xxx

Such constitutional right should not be denied on mere speculation of any similar unclear and nebulous basis.

In Garcia, et al. v. Lejano, et al., the Supreme Court rejected the OSG’s opinion that when the transfer is motivated solely by the interest of the service of such act cannot be considered violative of the Constitution, thus:

"We do not agree to this view. While temporary transfers or assignments may be made of the personnel of a bureau or department without first obtaining the consent of the employee concerned within the scope of Section 79 (D) of the Administrative Code which party provides that ‘The Department Head also may, from time to time, in the interest of the service, change the distribution among the several Bureaus and offices of his Department of the employees or subordinates authorized by law,’ such cannot be undertaken when the transfer of the employee is with a view to his removal. Such cannot be done without the consent of the employee. And if the transfer is resorted to as a scheme to lure the employee away from his permanent position, such attitude is improper as it would in effect result in a circumvention of the prohibition which safeguards the tenure of office of those who are in the civil service. It is not without reason that this Court made the following observation:

To permit circumvention of the constitutional prohibition in question by allowing removal from office without lawful cause, in the form or guise of transfers from one office to another, or from one province to another, without the consent of the transferee, would blast the hopes of these young civil service officials and career men and women, destroy their security and tenure of office and make for a subservient, discontented and inefficient civil service force that sways with every political wind that blows and plays up to whatever political party is in the saddle. That would be far from what the framers of our Constitution contemplated and desired. Neither would that be our concept of a free and efficient Government force, possessed of self-respect and reasonable ambition."

Clearly, the principle of "no work, no pay" does not apply in this case. As held in Neeland v. Villanueva, Jr:

"We also cannot deny back salaries and other economic benefits on the ground that respondent Clerk of Court did not work. For the principle of "no work, no pay" does not apply when the employee himself was forced out of job. Xxx Indeed, it is not always true that back salaries are paid only when work is done. Xxx For another, the poor employee could offer no work since he was forced out of work. Thus, to always require complete exoneration or performance of work would ultimately leave the dismissal uncompensated no matter how grossly disproportionate the penalty was. Clearly, it does not serve justice to simply restore the dismissed employee to his position and deny him his claim for back salaries and other economic benefits on these grounds. We would otherwise be serving justice in halves."

An illegally dismissed government employee who is later ordered reinstated is entitled to back wages and other monetary benefits from the time of his illegal dismissal up to his reinstatement. This is only

fair and sensible because an employee who is reinstated after having been illegally dismissed is considered as not having left his office and should be given a comparable compensation at the time of his reinstatement.

When a government official or employee in the classified civil service had been illegally dismissed, and his reinstatement had later been ordered, for all legal purposes he is considered as not having left his office, so that he is entitled to all the rights and privileges that accrue to him by virtue of the office that he held.13

The CSC moved for reconsideration but its motion was denied by the CA in its May 15, 2007 Resolution.

Hence, this petition.

THE ISSUES

WHETHER OR NOT THE ASSAILED DECISION IS LEGALLY CORRECT IN DECLARING THAT RESPONDENT WAS CONSTRUCTIVELY DISMISED AND ENTITLED TO BACK WAGES, NOTWITHSTANDING RESPONDENT’S REFUSAL TO COMPLY WITH BIR RTAO No. 25-2002 WHICH IS IMMEDIATELY EXECUTORY PURSUANT TO SECTION 24 (F) OF P.D. 807.

WHETHER OR NOT RESPONDENT SUFFERED A DIMINUTION IN HER SALARY IN RELATION TO SECTION 6, RULE III OF CSC MEMORANDUM CIRCULAR No. 40, SERIES OF 1998, DATED DECEMBER 14, 1998, AS A RESULT OF THE ISSUANCE [OF] BIR RTAO No. 25-2002 ORDERING HER REASSIGNMENT FROM BIR RR No. 7 IN QUEZON CITY TO BIR RR No. 4 IN SAN FERNANDO, PAMPANGA.14

In her Memorandum,15 Pacheo asserts that RTAO No. 25-2002, on the pretense of the exigencies of the revenue service, was solely meant to harass her and force her to resign. As a result of her invalid reassignment, she was constructively dismissed and, therefore, entitled to her back salaries and monetary benefits from the time of her illegal dismissal up to her reinstatement.

In its own Memorandum,16 the CSC, through the OSG, argues that constructive dismissal is not applicable in this case because it was Pacheo herself who adamantly refused to report for work either in her original station or new place of assignment in clear violation of Section 24 (f) of Presidential Decree (PD) No. 807.17 Citing jurisprudence,18 the CSC avers that the RTAO is immediately executory, unless otherwise ordered by the CSC. Therefore, Pacheo should have first reported to her new place of assignment and then appealed her case to the CSC if she indeed believed that there was no justification for her reassignment. Since Pacheo did not report for work at all, she is not entitled to backwages following the principle of "no work, no pay."

THE COURT’S RULING

The petition fails to persuade.

It appears undisputed that the reassignment of Pacheo was not valid. In its memorandum, the OSG initially argues for the validity of RTAO No. 25-2002 authorizing Pacheo’s reassignment from Quezon City to San Fernando, Pampanga. Later, however, it specifically prays for the reinstatement of CSC Resolution Nos. 051697 and 060397, which categorically declared RTAO No. 25-2002 as not valid. In seeking such relief, the OSG has effectively accepted the finding of the CSC, as affirmed by the CA, that Pacheo’s reassignment was indeed invalid. Since the issue of Pacheo’s reassignment is already settled, the Court finds it futile to pass upon the same at this point.

The question that remains to be resolved is whether or not Pacheo’s assignment constitutes constructive







dismissal and, thus, entitling her to reinstatement and backwages. Was Pacheo constructively dismissed by reason of her reassignment?

The Court agrees with the CA on this point.

While a temporary transfer or assignment of personnel is permissible even without the employee's prior consent, it cannot be done when the transfer is a preliminary step toward his removal, or a scheme to lure him away from his permanent position, or when it is designed to indirectly terminate his service, or force his resignation. Such a transfer would in effect circumvent the provision which safeguards the tenure of office of those who are in the Civil Service.19

Significantly, Section 6, Rule III of CSC Memorandum Circular No. 40, series of 1998, defines constructive dismissal as a situation when an employee quits his work because of the agency head’s unreasonable, humiliating, or demeaning actuations which render continued work impossible. Hence, the employee is deemed to have been illegally dismissed. This may occur although there is no diminution or reduction of salary of the employee. It may be a transfer from one position of dignity to a more servile or menial job.

The CSC, through the OSG, contends that the deliberate refusal of Pacheo to report for work either in her original station in Quezon City or her new place of assignment in San Fernando, Pampanga negates her claim of constructive dismissal in the present case being in violation of Section 24 (f) of P.D. 807 [now Executive Order (EO) 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (6)].20 It further argues that the subject RTAO was immediately executory, unless otherwise ordered by the CSC. It was, therefore, incumbent on Pacheo to have reported to her new place of assignment and then appealed her case to the CSC if she indeed believed that there was no justification for her reassignment.

Anent the first argument of CSC, the Court cannot sustain the proposition. It was legally impossible for Pacheo to report to her original place of assignment in Quezon City considering that the subject RTAO No. 25-2002 also reassigned Amado Rey B. Pagarigan (Pagarigan) as Assistant Chief, Legal Division, from RR4, San Fernando, Pampanga to RR7, Quezon City, the very same position Pacheo formerly held. The reassignment of Pagarigan to the same position palpably created an impediment to Pacheo’s return to her original station.

The Court finds Itself unable to agree to CSC’s argument that the subject RTAO was immediately executory. The Court deems it necessary to distinguish between a detail and reassignment, as they are governed by different rules.

A detail is defined and governed by Executive Order 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (6), thus:

(6) Detail. A detail is the movement of an employee from one agency to another without the issuance of an appointment and shall be allowed, only for a limited period in the case of employees occupying professional, technical and scientific positions. If the employee believes that there is no justification for the detail, he may appeal his case to the Commission. Pending appeal, the decision to detail the employee shall be executory unless otherwise ordered by the Commission. [Underscoring supplied]

On the other hand, a reassignment is defined and governed by E.O. 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (7), thus:

(7) Reassignment.—An employee may be reassigned from one organizational unit to another in the same agency; Provided, That such reassignment shall not involve a reduction in rank, status or salaries. [Underscoring supplied]

The principal distinctions between a detail and reassignment lie in the place where the employee is to be moved and in its effectivity pending appeal with the CSC. Based on the definition, a detail requires a



movement from one agency to another while a reassignment requires a movement within the same agency. Moreover, pending appeal with the CSC, an order to detail is immediately executory, whereas a reassignment order does not become immediately effective.1âwphi1

In the case at bench, the lateral movement of Pacheo as Assistant Chief, Legal Division from Quezon City to San Fernando, Pampanga within the same agency is undeniably a reassignment. The OSG posits that she should have first reported to her new place of assignment and then subsequently question her reassignment. It is clear, however, from E.O. 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (7) that there is no such duty to first report to the new place of assignment prior to questioning an alleged invalid reassignment imposed upon an employee. Pacheo was well within her right not to report immediately to RR4, San Fernando, Pampanga, and to question her reassignment.

Reassignments involving a reduction in rank, status or salary violate an employee’s security of tenure, which is assured by the Constitution, the Administrative Code of 1987, and the Omnibus Civil Service Rules and Regulations. Security of tenure covers not only employees removed without cause, but also cases of unconsented transfers and reassignments, which are tantamount to illegal/constructive removal.21

The Court is not unaware that the BIR is authorized to assign or reassign internal revenue officers and employees as the exigencies of service may require. This authority of the BIR, however, should be prudently exercised in accordance with existing civil service rules.

Having ruled that Pacheo was constructively dismissed, is she entitled to reinstatement and back wages? The Court agrees with the CA that she is entitled to reinstatement, but finds Itself unable to sustain the ruling that she is entitled to full back wages and benefits. It is a settled jurisprudence22 that an illegally dismissed civil service employee is entitled to back salaries but limited only to a maximum period of five (5) years, and not full back salaries from his illegal dismissal up to his reinstatement.

WHEREFORE, the petition is DENIED. The assailed February 22, 2007 Decision and May 15, 2007 Resolution of the Court of Appeals, in CA-G.R. SP No. 93781, are hereby AFFIRMED with MODIFICATION that respondent Minerva M.P. Pacheo is hereby ordered reinstated without loss of seniority rights but is only entitled to the payment of back salaries corresponding to five (5) years from the date of her invalid reassignment on May 7, 2002.

SO ORDERED.

JOSE CATRAL MENDOZAAssociate Justice

WE CONCUR:

ROQUE C. FACURA and EDUARDO F. TUASON,

G.R. No. 166495

Petitioners,

- versus –

COURT OF APPEALS, RODOLFO S. DE JESUS and



EDELWINA DG. PARUNGAO,Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

RODOLFO S. DE JESUS, G.R. No. 184129Petitioner,

- versus –

OFFICE OF THE OMBUDSMAN, EDUARDO F. TUASON, LOCAL WATER UTILITIES ADMINISTRATION (LWUA), represented by its new Administrator Orlando C. Hondrade,

Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

OFFICE OF THE OMBUDSMAN,Petitioner,

- versus - EDELWINA DG. PARUNGAO, and the HONORABLE COURT OF APPEALS (Former 7th Division),

Respondents.

G.R. No. 184263 Present:

CARPIO, J., Chairperson, NACHURA LEONARDO-DE CASTRO.∗ ABAD, and

MENDOZA, JJ.

Promulgated: February 16, 2011

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http://sc.judiciary.gov.ph/jurisprudence/2011/february2011/166495.htm#_ftn1

D E C I S I O N

MENDOZA, J.:

For resolution before this Court are the following:

G.R. No. 166495 is a petition for certiorari filed by Roque Facura (Facura) and Eduardo

Tuason (Tuason) assailing the Resolutions[1] dated September 22, 2004 and January 4,

2005 of the Court of Appeals (CA) in CA-G.R. SP No. 84902, which granted the

applications for preliminary mandatory injunction filed by Atty. Rodolfo De Jesus (De

Jesus) and Atty. Edelwina Parungao (Parungao) by ordering their reinstatement to their

former positions despite the standing order of dismissal issued by the Office of the

Ombudsman (Ombudsman) against them.

G.R. No. 184129 is an appeal, by way of Petition for Review on Certiorari under Rule 45 of the Rules of Court, filed by De Jesus, from the Decision[2] dated May 26, 2005 and Resolution[3] dated August 6, 2008 of the CA, in CA-G.R. SP No. 84902, which affirmed the Review and Recommendation[4] dated January 26, 2004 and Order[5] dated April 20, 2004 issued by the Ombudsman in OMB-C-A-02-0496-J, which dismissed De Jesus from the government service with prejudice to re-entry thereto.

G.R. 184263 is another appeal, by way of Petition for Review on Certiorari under Rule 45 of the Rules of Court, filed by the Ombudsman, from the Decision dated May 26, 2005 and Resolution dated August 6, 2008 of the CA, in CA-G.R. SP No. 84902, for ordering the reinstatement of Parungao as Manager of the Human Resources Management Department (HRMD) of the Local Water Utilities Administration (LWUA), thereby modifying the Review and Recommendation[6] dated January 26, 2004 and Order[7] dated April 20, 2004, issued by the Ombudsman in OMB-C-A-02-0496-J, which dismissed Parungao from the government service with prejudice to re-entry thereto.








These consolidated cases arose from a Joint Complaint-Affidavit filed with the

Ombudsman by Facura and Tuason against De Jesus and Parungao for violation of

Republic Act (R.A.) No. 3019 (the Anti-Graft and Corrupt Practices Act), dishonesty,

gross neglect of duty, grave misconduct, falsification of official documents, being

notoriously undesirable, and conduct prejudicial to the best interest of the service.

The Facts

The LWUA is a government-owned and controlled corporation chartered under

Presidential Decree (P.D) No. 198, as amended. De Jesus was the Deputy Administrator

for Administrative Services of LWUA, while Parungao was its HRMD Manager for

Administrative Services.

De Jesus was dismissed from the service per LWUA Board Resolution No. 061[8] dated March 28, 2001. Through Board Resolution No. 069 dated April 17, 2001, the Board denied his motion for reconsideration and prohibited De Jesus from acting on any matter as head of Administrative Services. On April 18, 2001, De Jesus appealed to the Civil Service Commission (CSC) to nullify Board Resolution Nos. 061 and 069.

On August 20, 2001, pending resolution of his petition with the CSC, De Jesus filed a petition for reinstatement with a newly-reconstituted LWUA Board, which granted it on September 4, 2001 through Board Resolution No. 172.[9] De Jesus then withdrew his petition with the CSC on September 5, 2001.

Under the CSC Accreditation Program, particularly under CSC Resolution No. 967701[10] dated December 3, 1996, LWUA has been granted the authority to take final action on appointment papers effective January 1, 1997. Under LWUA Officer Order No. 205.01[11] dated September 25, 2001, LWUA Administrator Lorenzo Jamora (Administrator Jamora) granted De Jesus the authority to sign/approve and issue appointment papers of appointees to vacant plantilla positions in LWUA which have been previously cleared or approved in writing by the Administrator or the Board of Trustees.





Prior to the grant of authority to De Jesus to sign appointment papers, in a letter[12] dated August 27, 2001 signed by Administrator Jamora, LWUA requested the Department of Budget and Management (DBM) for authority to hire confidential staff for the LWUA Board of Trustees. The request was to seek exemption for LWUA from Administrative Order No. 5 which prohibited the hiring of new personnel in order to generate savings.

While awaiting the reply of DBM on his request, Jamora, in an inter-office memorandum[13] dated October 23, 2001, directed the Office of Administrative Services (OAS), headed by De Jesus, and the Investment and Financial Services, to process the payment of the salaries and allowances of his two (2) newly appointed confidential staff who reported to him effective October 10, 2001. Upon receipt of the said inter-office memorandum, the OAS forwarded it to the HRMD headed by Parungao for appropriate action.

On December 11, 2001, LWUA received a reply letter[14] from DBM granting the

request to fill positions for the LWUA Board’s confidential staff. On the same day, on

the strength of said letter of approval, LWUA board members issued their respective

inter-office memoranda[15] and letter[16] containing the retroactive appointments of their

confidential staff, as follows: Board Chairman Francisco Dumpit appointed Michael M.

Raval and Ma. Geraldine Rose D. Buenaflor effective August 20, 2001; Trustee Bayani

Dato, Sr. appointed Albino G. Valenciano, Jr. effective August 20, 2001; and Trustee

Solomon Badoy appointed Kristina Joy T. Badoy and Noelle Stephanie R. Badoy

effective June 19, 2001. On December 18, 2001, Trustee Normando Toledo also issued

an inter-office memorandum[17] appointing, effective August 20, 2001, Marc Anthony S.

Verzosa and Ma. w:st="on"Lourdes M. Manaloto. These inter-office memoranda and

letter directed De Jesus to prepare their appointment papers. They bore the written

concurrence of Administrator Jamora as agency head and mandated appointing authority

of LWUA employees under the LWUA charter. Upon his receipt of the aforesaid inter-

office memoranda and letter, De Jesus forwarded them to the HRMD for the preparation

and processing of the corresponding appointment papers.







As HRMD head, Parungao forwarded the said documents to the Personnel Division to have them transformed into formal appointment papers, otherwise known as CSC Standard Form No. 33. The encoded standard forms indicated the names and positions of the confidential staff and the dates of signing and issuance of the appointments, which were the retroactive effectivity dates appearing in the inter-office memoranda and letter issued by the Board member. The concerned HRMD staff and Parungao affixed their initials below the printed name of De Jesus who, in turn, signed the formal appointment papers as respresentative of the appointing authority. The nine (9) appointment papers[18] bore Serial Nos. 168207, 168210, 168213, 168214, 168215, 168216, 168217, 168287, and 168288.

In Office Order No. 286.01 dated December 13, 2001 and Office Order No. 001.02

dated December 20, 2001 issued by De Jesus and Parungao, it was stated therein that the

following nine (9) personnel were appointed retroactively to the dates indicated below:

Ma. Geraldine Rose D. Buenaflor - August 20, 2001

Michael M. Raval - August 20, 2001

Albino G. Valenciano, Jr. - August 20, 2001

Noelle Stephanie R. Badoy - June 19, 2001

Kristina Joy T. Badoy - June 19, 2001

Jesusito R. Toren - October 15, 2001

Ma. Susan G. Facto - October 10, 2001

Ma. w:st="on"Lourdes M. Manaloto - August 20, 2001

Marc Anthony S. Versoza - August 20, 2001

On December 20, 2001, Administrator Jamora issued an inter-office memorandum[19] to the accounting department on the matter of payment of back salaries of the said confidential staff, stating therein that as approved by the DBM in its letter, the hiring of such personnel was authorized retroactive to their employment date, thus, ordering the immediate payment of their back salaries and other remunerations. On the same day, a LWUA disbursement voucher[20] was prepared and processed by the Accounting




Department, and Administrator Jamora thereafter approved the release of a Land Bank check amounting to P624,570.00 as part of the cash advance amounting to P692,657.31, for the payment of the back salaries.

The appointments of the subject confidential staff were reflected in the Supplemental

Quarterly Report on Accession for June and August 2001 and Quarterly Report on

Accession and Separation for October to December 2001 which were submitted to the

CSC on January 8, 2002.

On January 25, 2002, HRMD and OAS issued a Memorandum[21] for Administrator Jamora on the subject of the appointment papers of the nine (9) confidential staff of the Board. De Jesus and Parungao called his attention to the requirements under CSC Resolution No. 967701[22] of the submission to the CSC of two (2) copies of the Report on Personnel Actions (ROPA) within the first fifteen (15) days of the ensuing month together with the certified true copies of the appointments acted on, and appointments not submitted within the prescribed period would be made effective thirty (30) days prior to the date of submission to the CSC. It was explained that the appointment papers with retroactive effectivity dates violated the provisions of CSC Res. No. 967701 and Rule 7, Section 11 of the CSC Omnibus Rules on Appointments. For said reason, LWUA accreditation could be cancelled and the Administrator be held personally liable for the invalidated appointments. It was suggested instead that the appointments be re-issued effective December 12, 2001, the ROPA be dated January 15, 2002, and the earlier retroactive appointments be cancelled, as advised by a CSC Field Director in a previous informal consultation. It was also proposed that the salaries and benefits already paid be made on quantum meruit basis, based on actual services rendered as certified by the Board members.

Therefore, for the purpose of meeting the monitoring and reportorial requirements of the CSC in relation to the accreditation given to LWUA to take final action on its appointments, De Jesus and Parungao, with the prior approval of Administrator Jamora, re-issued the appointments of the Board’s nine (9) confidential staff. The appointment papers[23] were now all dated December 12, 2001, with Serial Nos. 168292, 168293, 168294, 168295, 168297, 168298, 168299, 168301, and 168304 and were transmitted to the CSC.




On February 28, 2002, Administrator Jamora again wrote a letter[24] to the DBM clarifying whether its December 11, 2001 letter, approving the hiring of the confidential staff of the LWUA Board, had retroactive effect. It was explained that the said confidential staff had started rendering services as early as August 20, 2001, when the Board assumed office because their services were urgently needed by the trustees.

Meanwhile, the LWUA Accounting Department, in a Brief to the Legal Department

dated March 2, 2002, sought its legal opinion on the subject of the first payment of

salary of the confidential staff. The Legal Department replied that a letter had been sent

to the DBM seeking clarification on whether the previous DBM approval retroacted to

the actual service of the confidential staff.

Thereafter, the Internal Control Office (ICO) of LWUA issued a memorandum dated

May 10, 2002, questioning the issuance of the retroactive appointment papers. It pointed

out that since the appointment papers submitted to the CSC indicated December 12,

2001 as effective date, the appointment of the involved personnel to the government

service should be considered effective only on said date, with their salaries and other

compensation computed only from December 12, 2001. Thus, there was an overpayment

made as follows:

Ma. Geraldine Rose D. Buenaflor - P107,730.09

Michael M. Raval - P111,303.16

Albino G. Valenciano, Jr. - P107, 730.09

Noelle Stephanie R. Badoy - P157, 210.34

Kristina Joy T. Badoy - P163, 130.69

It was further recommended that the Legal Department conduct an investigation to

identify the person liable to refund to LWUA the overpayments made to the subject

personnel and that the Accounting Department take appropriate actions to recover the

overpayment.


On June 5, 2002, LWUA received DBM’s reply letter[25] on June 5, 2002, informing Administrator Jamora that the previously granted authority on the hiring of the confidential staff to the LWUA Board may be implemented retroactive to the date of actual service rendered by the employees involved.

In a Brief to Administrator Jamora dated July 26, 2002, signed by De Jesus and initialed

by Parungao, the issues raised by ICO in its Memorandum on the retroactive

appointments of the concerned confidential staff and overpayments were deemed

clarified with the reply letter of the DBM on the retroactive implementation of the

authority granted to LWUA in the previous letter of approval.

Meanwhile, on November 20, 2001, in relation to the earlier appeal of De Jesus (which he withdrew upon his reinstatement by the newly reconstituted LWUA Board), the CSC issued Resolution No. 011811,[26] which remanded the case to LWUA for the conduct of an investigation regarding De Jesus’ dismissal, to be finished within three (3) calendar months, failure of which would result in the dismissal of the case against De Jesus.

On August 15, 2002, the CSC issued Resolution No. 021090[27] ruling that CSC Resolution No. 011811 had not been rendered moot and academic by the reinstatement of De Jesus by the LWUA Board. It further declared the reinstatement as illegal, null and void. The Board was directed to recall the reinstatement of De Jesus, and LWUA was ordered to continue the conduct of the investigation on De Jesus as earlier directed, within three (3) calendar months from receipt of the resolution. For failure of LWUA to conduct an investigation within the required period, CSC Resolution No. 030504[28] was issued dated May 5, 2003 considering the dismissal case closed and terminated.

Complaint of Facura and Tuason

On October 18, 2002, Facura and Tuason filed a Joint Affidavit-Complaint[29] before the Evaluation and Preliminary Investigation Bureau of the Ombudsman against De Jesus and Parungao charging them with: 1) violation of Section 3(e) of R.A. No. 3019; and 2) dishonesty, gross neglect of duty, grave misconduct, falsification of official documents, being notoriously undesirable, and conduct prejudicial to the best interest of the service,






for the fabrication of fraudulent appointments of nine (9) coterminous employees of LWUA.

Facura and Tuason alleged that the retroactive appointment papers were fabricated and

fraudulent as they were made to appear to have been signed/approved on the dates

stated, and not on the date of their actual issuance. They further alleged that with malice

and bad faith, De Jesus and Parungao willfully and feloniously conspired not to submit

the fraudulent appointment papers to the CSC, and to submit instead the valid set of

appointment papers bearing the December 12, 2001 issuance date.

They questioned the issuance of the fraudulent appointments in favor of the nine (9)

confidential staff, to the prejudice of the government in the amount of P692,657.31, as

these were used as basis for the payment of their back salaries. They also alleged that De

Jesus’ reinstatement was illegal and that he had lost authority to sign any LWUA

documents effective upon the issuance of LWUA Board Resolution Nos. 061 and 069.

Thus, the actions undertaken by him in signing the fraudulent appointments were all

misrepresented and, therefore, unlawful. They further alleged that contrary to law, De

Jesus continued to receive his salary and benefits as Deputy Administrator of LWUA

despite having already been dismissed. They cited the string of criminal and

administrative cases against De Jesus before the trial courts and the Ombudsman.

In their Joint Counter-Affidavit,[30] De Jesus and Parungao alleged that they were mere rank-and-file employees who had no knowledge of or participation in personnel matters; that their actions in issuing the two sets of appointments were all documented and above-board; that as subordinate employees, they had no discretion on the matter of the retroactive appointments of the nine confidential staff specifically requested by the Board members; and that the re-issuance of the second set of appointments effective December 12, 2001 was duly approved by Administrator Jamora. They denied any financial damage on the part of LWUA since the retroactive payment of salaries was justified under the DBM letter approving the hiring of personnel retroactive to the date of actual services rendered by them.


The Ruling of the Ombudsman

The complaint was originally referred to the Ombudsman’s Preliminary Investigation

and Administrative Adjudication Bureau – B, and assigned to Graft Investigation and

Prosecution Officer I Vivian Magsino-Gonzales (Pros. Magsino-Gonzales). After

evaluating the documents on file, Pros. Magsino-Gonzales dispensed with the

preliminary conference and preliminary investigation of the case. In her Decision dated

September 30, 2003, she recommended the outright dismissal of the case, ratiocinating

that the Ombudsman did not have the jurisdiction to resolve the issues of fraudulent

appointments of the nine confidential staff and their alleged overpayment to the damage

of LWUA and the government and to decide on the status of De Jesus as a dismissed

employee which, in her view, belonged to the primary jurisdiction and technical

expertise of the CSC.

Said recommendation was disapproved by the Ombudsman and the case was referred for

review to Special Prosecution Officer Roberto Agagon (Special Pros. Agagon) of the

Preliminary Investigation and Administrative Adjudication Bureau – A. Without

conducting a preliminary conference or investigation, Special Pros. Agagon came up

with the assailed Review and Recommendation finding De Jesus and Parungao guilty of

grave misconduct, dishonesty, gross neglect of duty, and falsification, the dispositive

portion of which reads:

WHEREFORE, respondents Rodolfo S. De Jesus and Edelwina DG. Parungao are meted out the penalty of Dismissal from the service with prejudice to re-entry into the government service.

On March 24, 2004, Facura and Tuason filed their Motion for Reconsideration but the

same was denied in the assailed Order dated April 20, 2004.

The Ombudsman found that during De Jesus’ dismissal from the service at the

LWUA, and despite the advice of the CSC to await the final resolution of his appeal, De

Jesus illegally issued appointments to several co-terminous employees in June and

August 2001. The appointments were found to have been prepared and issued by De

Jesus and Parungao after the former had been terminated from LWUA, therefore,

without authority to sign/act on any official LWUA document/official matter, which fact

he was fully aware of, thereby making the solemnity of the documents questionable. All

said appointments were, thus, found to be fraudulent, illegal, and of no legal force and

effect. Since these were also prepared and initialed by Parungao, a conspiracy to commit

falsification through dishonesty was found to have been present.

It was also found that the DBM approved the LWUA request on retroactivity of payment

of back salaries because not all facts attendant to the illegal appointments had been

disclosed to said office. The deliberate concealment of the illegal appointment papers

was dishonest. The attachment of the illegal appointments to the LWUA Disbursement

Voucher for payment of backsalaries, to the prejudice and damage of the government,

was also cited as another deliberate concealment and distortion with false narration of

facts.

The Ombudsman also viewed the second set of appointment papers as to have been

issued for no apparent reason and designed to legalize the illegal appointments issued in

June and August 2001. Thus, dishonesty on the part of De Jesus was found to be present

for acting against a series of orders issued by the CSC and for the falsification of the

illegal appointment papers.

The Ruling of the Court of Appeals

Aggrieved, De Jesus and Parungao filed a petition for review with the CA on July 5,

2004 which was docketed as CA-G.R. SP No. 84902, praying, among others, for the

issuance of a Temporary Restraining Order (TRO) and/or preliminary prohibitory

injunction to enjoin the implementation of the order of dismissal against them. The CA,

in its Resolution dated July 20, 2004, deferred action on the application for TRO and

gave Facura and Tuason time to comment.

After the petition to the CA was filed, LWUA implemented the order of dismissal

against De Jesus and Parungao. Administrator Jamora issued Office Order No. 151204

notifying De Jesus and Parungao of their dismissal from the LWUA effective at the close

of office hours on July 23, 2004.

On August 12, 2004, the CA granted the application for TRO so as not to render

the issues raised in the petition moot and academic. On August 24, 2004, Facura and

Tuason filed their Manifestation with Extremely Urgent Motion for Dissolution of the

issued TRO because the act to be enjoined, the implementation of the dismissal order,

was fait accompli.

On September 22, 2004, the CA issued the assailed Resolution denying Facura and

Tuason’s motion to dissolve the TRO, and granting the issuance of a writ of preliminary

mandatory injunction in favor of De Jesus and Parungao, which reads as follows:

WHEREFORE, the foregoing considered, the Motion to Dissolve TRO filed by respondents is hereby DENIED. Accordingly, let writ of preliminary mandatory injunction issue enjoining LWUA and the Office of the Ombudsman from enforcing the assailed Order and are thereby directed to maintain and/or restore the status quo existing at the time of the filing of the present petition by reinstating petitioners to their former positions pending the resolution of this case upon the filing of petitioner’s bond in the amount of P40,000.00 each, which will answer for whatever damages respondents may sustain in the event that the petition is not granted.

The CA found that the right to appeal from decisions of the Ombudsman imposing a penalty other than public censure or reprimand, or a penalty of suspension of more than one month or a fine equivalent to more than one month’s salary, granted to parties by Section 27 of R.A. No. 6770 (the Ombudsman Act) should generally carry with it the

stay of these decisions pending appeal citing Lopez v. Court of Appeals.[31] The right to a writ of preliminary mandatory injunction was deemed to be in order because De Jesus’ and Parungao’s right to be protected under R.A. No. 6770 was found to exist prima facie, and the acts sought to be enjoined are violative of such right.

On October 4, 2004, Facura, Tuason and LWUA moved for the reconsideration of

the September 22, 2004 Resolution, which motion was opposed by De Jesus and

Parungao. Their Motions for Reconsideration were denied by the CA on January 4,

2005, as follows:

WHEREFORE, the foregoing considered, the respondents’ respective Motions for Reconsideration of the Resolution dated 22 September 2004 are hereby DENIED. Petitioner De Jesus’ Most Urgent Motion to Deputize the Philippine National Police to Implement the Injunctive Writ dated 29 September 2004 is GRANTED and accordingly the said entity is hereby deputized to implement the injunctive relief issued by this Court.

Facura and Tuason then filed the present Petition for Certiorari with this Court

questioning the above-mentioned Resolutions of the CA, docketed as G.R. No. 166495.

Pending resolution of the said Petition, the CA rendered its decision in CA-G.R. SP No.

84902, dated May 26, 2005, the dispositive portion of which reads:

WHEREFORE, the foregoing considered, the petition is GRANTED and the assailed Review and Recommendation and Order are MODIFIED hereby ordering the reinstatement of petitioner Parungao as Manager of the Human Resource Management Department of LWUA with back pay and without loss of seniority. The dismissal of petitioner De Jesus from the government service with prejudice to re-entry thereto is AFFIRMED.

Facura, Tuazon and the Ombudsman filed their respective Motions for Partial

Reconsideration, while De Jesus filed his Motion for Reconsideration. These were

denied by the CA in its Resolution dated August 6, 2008.

The CA believed that at the time De Jesus signed the two sets of appointment papers, the

CSC had not divested itself of jurisdiction and authority over his dismissal case. Thus,

he misrepresented his authority to do so as his dismissal was still in effect and for


resolution by the CSC. The CA agreed with De Jesus that it was his ministerial duty to

comply with the request of the Board members. However, he failed to perform his

ministerial duty, for if he had in fact done so, the second set of appointments would not

have been issued as the first set of appointments with retroactive effectivity dates would

have already been submitted to the CSC.

The CA further found the request for approval to the DBM to apply the earlier granted

authority to hire retroactively as a disingenuous attempt to provide a semblance of

legality to the intended retroactive appointments. It held that the approval or disapproval

of appointment to the government was the sole office of the CSC, and not the DBM, as

the LWUA authority to take final action on its appointments was by virtue of CSC’s

accreditation program. De Jesus’ failure to submit the retroactive appointment papers as

prescribed under the CSC accreditation was viewed by the CA as a concealment of such

retroactivity and, thus, dishonesty. To its mind, the CSC was deliberately made unaware

of what the DBM was doing, and vice versa.

Parungao was exonerated by the CA after having been found that she took steps to

clarify the matter with the CSC, informed her superiors about her misgivings and the

legal effects of the retroactive appointments, and published such retroactive

appointments in the LWUA Quarterly Reports on Accession, thus, demonstrating her

good faith.

In its Resolution denying the motions for reconsideration filed by Facura, Tuazon and De Jesus, the CA ruled, among others, that the case of De Jesus v. Sandiganbayan[32] could not be used as basis to absolve administrative liability, as the present case was not limited solely to falsification and preparation of the two sets of appointment papers. The CA found that De Jesus failed to comply with CSC rules due to his failure to submit the first set of appointment papers to the CSC. Dishonesty was found present when De Jesus submitted the first set of appointment papers to the DBM and the second set to CSC to comply with reportorial requirements, ensuring that the DBM was unaware of what the CSC was doing and vice versa. The CSC resolutions dismissing the complaint against


De Jesus were found to have no bearing as the dismissal case was already before the CSC for resolution when De Jesus affixed his signature. Thus, De Jesus had no authority to sign the appointment papers and by doing so, he defied the CSC directive recalling his reinstatement. Violation of CSC rules on appointment was found to be distinct from misrepresentation of authority to sign appointment papers.

Hence, the present Petitions for Review on Certiorari separately filed by De Jesus and

the Ombudsman, docketed as G.R. Nos. 185129 and 184263, respectively.

THE ISSUES

The issues presented for resolution by Facura (now deceased) and Tuason in G.R. No.

166495 are as follows:

a. Whether or not an appeal of the Ombudsman’s decision in administrative

cases carries with it the suspension of the imposed penalty;

b. Whether or not petitioners were heard before the issuance of the writ of

preliminary mandatory injunction; and

c. Whether or not private respondents are entitled to the writ of preliminary

mandatory injunction.

The assignment of errors presented by De Jesus in G.R. No. 184129, are as follows:

I

THE COURT OF APPEALS GROSSLY ERRED IN NOT APPLYING THE DOCTRINE OF CONCLUSIVENESS OF JUDGMENT AND/OR RES JUDICATA ARISING FROM SC DECISION DATED OCTOBER 17, 2007 IN G.R. NOS. 164166 & 164173-80 AND CSC RES. NOS. 03-0504, 07-0146 & 07-0633.

II

THE COURT OF APPEALS GROSSLY ERRED IN NOT FINDING PETITIONER TO HAVE ACTED IN GOOD FAITH WHEN HE OBEYED THE PATENTLY LAWFUL ORDERS OF HIS SUPERIORS.

III

THE COURT OF APPEALS GROSSLY ERRED IN STILL RELYING ON CSC RES. NO. 01-1811 AND RES. NO. 02-1090 AFTER HAVING BEEN RENDERED MOOT AND ACADEMIC BY CSC RES. NO. 03-0405.

IV

THE COURT OF APPEALS GROSSLY ERRED IN FINDING PETITIONER TO HAVE COMMITTED AN ACT OF DISHONESTY IN RELATION TO THE CSC ACCREDITATION PROGRAM.

V

PUBLIC RESPONDENT OFFICE OF THE OMBUDSMAN AND THE COURT OF APPEALS DO NOT HAVE JURISDICTION TO COLLATERALLY RULE AGAINST PETITIONER’S TITLE AS DEPUTY ADMINISTRATOR OF LWUA.

VI

THE COURT OF APPEALS GROSSLY ERRED IN FAILING TO APPRECIATE AS MITIGATING CIRCUMSTANCES THE EDUCATION AND LENGTH OF SERVICE OF PETITIONER IN THE IMPOSITION OF SUPREME PENALTY OF DISMISSAL.

VII

THE COURT OF APPEALS GROSSLY ERRED IN STILL FINDING PETITIONER GUILTY OF MISREPRESENTATION OF AUTHORITY AFTER EXONERATING ATTY. EDELWINA DG. PARUNGAO.

The issue presented for resolution by the Ombudsman in G.R. No. 184263 is as follows:

WHETHER OR NOT THE COURT OF APPEALS ERRED IN RULING THAT NO SUBSTANTIAL EVIDENCE EXISTS AGAINST RESPONDENT PARUNGAO FOR THE ADMINISTRATIVE OFFENSE OF DISHONESTY WHICH WARRANTS HER DISMISSAL FROM THE SERVICE .

THE RULING OF THE COURT

G.R. No. 166495

The issue of whether or not an appeal of the Ombudsman decision in an administrative

case carries with it the immediate suspension of the imposed penalty has been laid to

rest in the recent resolution of the case of Ombudsman v. Samaniego,[33] where this

Court held that the decision of the Ombudsman is immediately executory pending

appeal and may not be stayed by the filing of an appeal or the issuance of an injunctive

writ, to wit:

Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman,[34] as amended by Administrative Order No. 17 dated September 15, 2003, provides:

SEC. 7. Finality and execution of decision. – Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final, executory and unappealable. In all other cases, the decision may be appealed to the Court of Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the written Notice of the Decision or Order denying the motion for reconsideration. An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal.



A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be a ground for disciplinary action against such officer. [Emphases supplied]

The Ombudsman’s decision imposing the penalty of suspension for one year is immediately executory pending appeal.[35] It cannot be stayed by the mere filing of an appeal to the CA. This rule is similar to that provided under Section 47 of the Uniform Rules on Administrative Cases in the Civil Service.

In the case of In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of the DPWH,[36] we held:

The Rules of Procedure of the Office of the Ombudsman are clearly procedural and no vested right of the petitioner is violated as he is considered preventively suspended while his case is on appeal. Moreover, in the event he wins on appeal, he shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal. Besides, there is no such thing as a vested interest in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office.

Following the ruling in the above cited case, this Court, in Buencamino v. Court of Appeals,[37] upheld the resolution of the CA denying Buencamino’s application for preliminary injunction against the immediate implementation of the suspension order against him. The Court stated therein that the CA did not commit grave abuse of discretion in denying petitioner’s application for injunctive relief because Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman was amended by Administrative Order No. 17 dated September 15, 2003.

Respondent cannot successfully rely on Section 12, Rule 43 of the Rules of Court which provides:




SEC. 12. Effect of appeal ― The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just.

In the first place, the Rules of Court may apply to cases in the Office of the Ombudsman suppletorily only when the procedural matter is not governed by any specific provision in the Rules of Procedure of the Office of the Ombudsman.[38] Here, Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman, as amended, is categorical, an appeal shall not stop the decision from being executory.

Moreover, Section 13 (8), Article XI of the Constitution authorizes the Office of the Ombudsman to promulgate its own rules of procedure. In this connection, Sections 18 and 27 of the Ombudsman Act of 1989[39] also provide that the Office of the Ombudsman has the power to "promulgate its rules of procedure for the effective exercise or performance of its powers, functions and duties" and to amend or modify its rules as the interest of justice may require. For the CA to issue a preliminary injunction that will stay the penalty imposed by the Ombudsman in an administrative case would be to encroach on the rule-making powers of the Office of the Ombudsman under the Constitution and RA 6770 as the injunctive writ will render nugatory the provisions of Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman.

Clearly, Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman supersedes the discretion given to the CA in Section 12,[40] Rule 43 of the Rules of Court when a decision of the Ombudsman in an administrative case is appealed to the CA. The provision in the Rules of Procedure of the Office of the Ombudsman that a decision is immediately executory is a special rule that prevails over the provisions of the Rules of Court. Specialis derogat generali. When two rules apply to a particular case, that which was specially designed for the said case must prevail over the other.[41] [Emphases supplied]

Thus, Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman, as

amended by Administrative Order (A.O.) No. 17, is categorical in providing that an

appeal shall not stop an Ombudsman decision from being executory. This rule applies to

the appealable decisions of the Ombudsman, namely, those where the penalty imposed is

other than public censure or reprimand, or a penalty of suspension of more than one

month, or a fine equivalent to more than one month’s salary. Hence, the dismissal of De





Jesus and Parungao from the government service is immediately executory pending

appeal.

The aforementioned Section 7 is also clear in providing that in case the penalty is

removal and the respondent wins his appeal, he shall be considered as having been under

preventive suspension and shall be paid the salary and such other emoluments that he

did not receive by reason of the removal. As explained above, there is no such thing as a

vested interest in an office, or an absolute right to hold office, except constitutional

offices with special provisions on salary and tenure. The Rules of Procedure of the

Ombudsman being procedural, no vested right of De Jesus and Parungao would be

violated as they would be considered under preventive suspension, and entitled to the

salary and emoluments they did not receive in the event that they would win their

appeal.

The ratiocination above also clarifies the application of Rule 43 of the Rules of Court in

relation to Section 7 of the Rules of Procedure of the Office of the Ombudsman. The

CA, even on terms it may deem just, has no discretion to stay a decision of the

Ombudsman, as such procedural matter is governed specifically by the Rules of

Procedure of the Office of the Ombudsman.

The CA’s issuance of a preliminary mandatory injunction, staying the penalty of

dismissal imposed by the Ombudsman in this administrative case, is thus an

encroachment on the rule-making powers of the Ombudsman under Section 13 (8),

Article XI of the Constitution, and Sections 18 and 27 of R.A. No. 6770, which grants

the Office of the Ombudsman the authority to promulgate its own rules of procedure.

The issuance of an injunctive writ renders nugatory the provisions of Section 7, Rule III

of the Rules of Procedure of the Office of the Ombudsman.

The CA, however, cannot be blamed for so ruling because at that time the Court’s

rulings were not definite and, thus, nebulous. There were no clear-cut guidelines yet.

Even the initial ruling in Samaniego on style="font-size:14.0pt;line-height:150%;font-

family:\"Times New Roman\",\"serif\";

color:black" lang="EN-PH"September 11, 2008, stated in effect that the mere filing by a

respondent of an appeal sufficed to stay the execution of the joint decision against him.

The Samaniego initial ruling merely followed that in the case of Office of the

Ombudsman v. Laja,[42] where it was stated:

[O]nly orders, directives or decisions of the Office of the Ombudsman in administrative cases imposing the penalty of public censure, reprimand, or suspension of not more than one month, or a fine not equivalent to one month salary shall be final and unappealable hence, immediately executory. In all other disciplinary cases where the penalty imposed is other than public censure, reprimand, or suspension of not more than one month, or a fine not equivalent to one month salary, the law gives the respondent the right to appeal. In these cases, the order, directive or decision becomes final and executory only after the lapse of the period to appeal if no appeal is perfected, or after the denial of the appeal from the said order, directive or decision. It is only then that execution shall perforce issue as a matter of right. The fact that the Ombudsman Act gives parties the right to appeal from its decisions should generally carry with it the stay of these decisions pending appeal. Otherwise, the essential nature of these judgments as being appealable would be rendered nugatory. [Emphasis in the original].

Having ruled that the decisions of the Ombudsman are immediately executory pending

appeal, The Court finds it unncessary to determine whether or not Facura and Tuason

were heard before the issuance of the writ of preliminary mandatory injunction.

G.R. Nos. 184129 & 184263

The Court now looks into the issue of whether De Jesus was rightfully dismissed

from the government service, and whether Parungao was righfully exonerated by the

CA.

Conclusiveness of Judgment

De Jesus contends that under the doctrine of conclusiveness of judgment and/or res judicata, the present case is bound by the decision of this Court in De Jesus v.


Sandiganbayan.[43]

The original complaint filed with the Ombudsman by Facura and Tuason spawned two

cases, an administrative proceeding docketed as OMB-C-A-0496-J, which is the subject

of this present case, and a proceeding for the determination of probable cause for the

filing of criminal charges docketed as OMB-C-C-02-0712-J.

As to the criminal charges, probable cause was found to be present by the Ombudsman,

and nine (9) informations for falsification of public documents were separately filed

against De Jesus and Parungao with the Sandiganbayan docketed as Criminal Case Nos.

27894-27902. After his Motion to Quash was denied, De Jesus filed a petition for

certiorari with this Court docketed as G.R. Nos. 164166 & 164173-80, entitled De Jesus

v. Sandiganbayan.[44] This petition was resolved on October 17, 2007 in favor of De

Jesus with the finding that the evidence could not sustain a prima facie case. His

Motion to Quash was granted for lack of probable cause to form a sufficient belief as to

the guilt of the accused. The Court stated that there was no reasonable ground to believe

that the requisite criminal intent or mens rea was present, finding that nothing in the two

sets of appointment papers constituted an absolutely false narration of facts.

As a result, the criminal cases filed with the Sandiganbayan were consequently dismissed on March 14, 2008.[45] Copies of the decisions of this Court and the Sandiganbayan were submitted to the CA through a Manifestation with Most Urgent Ex-Parte Motion on April 24, 2008.

De Jesus cited the case of Borlongan v. Buenaventura[46] to support his argument

that this administrative case should be bound by the decision in De Jesus v.

Sandiganbayan.[47] In Borlongan, similar to the situation prevailing in this case, the

complaint-affidavit filed with the Ombudsman also spawned two cases – a proceeding

for the determination of probable cause for the filing of criminal charges, and an

administrative case subject of the petition. In said case, this Court found that its factual






findings regarding the proceeding for the determination of probable cause bound the

disposition of the factual issues in the administrative case under the principle of

conclusiveness of judgment, as both the probable cause proceeding and the

administrative case require the same quantum of evidence, that is, substantial evidence.

Furthermore, the factual backdrop in the proceeding for the determination of probable

cause, which this Court declared as insufficient to hold respondents for trial, was the

same set of facts which confronted this Court in the administrative case.

On the other hand, the Ombudsman, Tuason and LWUA raised the jurisprudential principle that the dismissal of a criminal case involving the same set of facts does not automatically result in the dismissal of the administrative charges due to the distinct and independent nature of one proceeding from the other. They further countered that the only issue resolved in De Jesus was the absence of mens rea, which was not a mandatory requirement for a finding of falsification of official documents as an administrative offense;[48] and although it was found that there was no absolutely false narration of facts in the two sets of appointment papers, the issue in this administrative case was not limited solely to falsification of official documents. It was further contended that the evidence and admissions in the administrative case were different from the evidence in the criminal case, thus, the findings in the criminal case could not bind the administrative case. Finally, they argued that the doctrine of res judicata would only apply to judicial or quasi-judicial proceedings and not to administrative matters.[49] The Court agrees with De Jesus insofar as the finding regarding the falsification of

official documents is concerned.

The doctrine of res judicata is set forth in Section 47 of Rule 39 of the Rules of Court,

as follows:

Sec. 47. Effect of judgments or final orders. - The effect of a judgment or final order rendered by a court of the w:st="on"Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows:

x x x

(b)In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between



the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and

(c)In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which actually and necessarily included therein or necessary thereto.

The principle of res judicata lays down two main rules: (1) the judgment or decree of a

court of competent jurisdiction on the merits concludes the litigation between the parties

and their privies and constitutes a bar to a new action or suit involving the same cause of

action either before the same or any other tribunal; and (2) any right, fact, or matter in

issue directly adjudicated or necessarily involved in the determination of an action

before a competent court in which a judgment or decree is rendered on the merits is

conclusively settled by the judgment therein and cannot again be litigated between the

parties and their privies whether or not the claims or demands, purposes, or subject

matters of the two suits are the same.[50] The first rule which corresponds to paragraph

(b) of Section 47 above, is referred to as "bar by former judgment"; while the second

rule, which is embodied in paragraph (c), is known as "conclusiveness of judgment."[51]

As what is involved in this case is a proceeding for the determination of probable cause and an administrative case, necessarily involving different causes of action, the applicable principle is conclusiveness of judgment. The Court in Calalang v. Register of Deeds of Quezon City[52] explained such, to wit:

The second concept - conclusiveness of judgment- states that a fact or question which was in issue in a former suit and was there judicially passed upon and determined by a court of competent jurisdiction, is conclusively settled by the judgment therein as far as the parties to that action and persons in privity with them are concerned and cannot be again litigated in any future action between such parties or their privies, in the same court or any other court of concurrent jurisdiction on either the same or different cause of action, while the judgment remains unreversed by proper authority. It has been held that in order that a judgment in one action can be conclusive as to a particular matter in another action between the same parties or their privies, it is essential that the issue be identical. If a particular point or question is in issue in the second action, and the judgment will depend on the determination of that particular point or question, a former judgment between the same parties or their privies will be final and conclusive in the second if that same point or question was in issue and adjudicated in the first suit (Nabus v. Court of Appeals, 193 SCRA 732 [1991]). Identity of




cause of action is not required but merely identity of issue.

Justice Feliciano, in Smith Bell & Company (Phils.), Inc. v. Court of Appeals (197 SCRA 201, 210 [1991]), reiterated Lopez v. Reyes (76 SCRA 179 [1977]) in regard to the distinction between bar by former judgment which bars the prosecution of a second action upon the same claim, demand, or cause of action, and conclusiveness of judgment which bars the relitigation of particular facts or issues in another litigation between the same parties on a different claim or cause of action.

The general rule precluding the relitigation of material facts or questions which were in issue and adjudicated in former action are commonly applied to all matters essentially connected with the subject matter of the litigation. Thus, it extends to questions necessarily implied in the final judgment, although no specific finding may have been made in reference thereto and although such matters were directly referred to in the pleadings and were not actually or formally presented. Under this rule, if the record of the former trial shows that the judgment could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties and if a judgment necessarily presupposes certain premises, they are as conclusive as the judgment itself.

Under the principle of conclusiveness of judgment, when a right or fact has been judicially tried and determined by a court of competent jurisdiction, or when an opportunity for such trial has been given, the judgment of the court, as long as it remains unreversed, should be conclusive upon the parties and those in privity with them. Simply put, conclusiveness of judgment bars the relitigation of particular facts or issues in another litigation between the same parties on a different claim or cause of action.[53]

Although involving different causes of action, this administrative case and the proceeding for probable cause are grounded on the same set of facts, involve the same issue of falsification of official documents, and require the same quantum of evidence[54]– substantial evidence, as was similarly found in Borlongan, and correctly relied upon by De Jesus.

It was ruled in De Jesus that there was no reasonable ground to believe that the requisite criminal intent or mens rea was present. Although the presence of mens rea is indeed unnecessary for a finding of guilt in an administrative case for falsification of official documents,[55] it was expressly found by this Court in De Jesus that there was no absolutely false narration of facts in the two sets of appointment papers. The pertinent portion is quoted hereunder as follows:




Criminal intent must be shown in felonies committed by means of dolo, such as falsification. In this case, there is no reasonable ground to believe that the requisite criminal intent or mens rea was present. The Ombudsman assails the first set of documents with dates of appointment earlier than December 12, 2001. Clearly, the first set of CSC Form No. 33 was prepared earlier as shown by the serial numbers. The first set has serial numbers 168207, 168210, 168213, 168214, 168215, 168216, 168217, 168287 and 168288; while the second set has serial numbers 168292, 168293, 168294, 168295, 168297, 168298, 168299, 168301 and

168304. The Ombudsman also admits this fact. Indeed, petitioner admits having signed two sets of appointment papers but nothing in said documents constitutes an absolutely false narration of facts. The first set was prepared and signed on the basis of the inter-office memoranda issued by the members of the Board appointing their respective confidential staff conformably with the DBM approval. There was no untruthful statement made on said appointment papers as the concerned personnel were in fact appointed earlier than December 12, 2001. In fact, the DBM also clarified that the authority to hire confidential personnel may

be implemented retroactive to the date of actual service of the employee concerned. In any

case, Jamora authorized the issuance of the second set of appointment papers. Following the CSC Rules, the second set of appointment papers should mean that the first set was ineffective and that the appointing authority, in this case, the members of the Board, shall be liable for

the salaries of the appointee whose appointment became ineffective. There was nothing willful or felonious in petitioner's act warranting his prosecution for falsification. The evidence is insufficient to sustain a prima facie case and it is evident that no probable cause exists to form a sufficient belief as to the petitioner's guilt.[56] [Emphasis supplied]

Hence, the finding that nothing in the two sets of appointment papers constitutes an

absolutely false narration of facts is binding on this case, but only insofar as the issue of

falsification of public documents is concerned, and not on the other issues involved

herein, namely, the other acts of De Jesus and Parungao which may amount to

dishonesty, gross neglect of duty, grave misconduct, being notoriously undesirable, and

conduct prejudicial to the best interest of the service, as charged in the complaint.

Contrary to Tuason and LWUA’s contentions, the factual finding of this Court in De

Jesus as to the absence of falsification is based on the same evidence as in this

administrative case. There are, however, other evidence and admissions present in this

case as cited by Tuason and LWUA which pertain to other issues and not to the issue of

falsification.


Meanwhile the doctrine in Montemayor v. Bundalian[57] that res judicata applies

only to judicial or quasi-judicial proceedings, and not to the exercise of administrative

powers, has been abandoned in subsequent cases[58] which have since applied the

principle of res judicata to administrative cases. Hence, res judicata can likewise be

made applicable to the case at bench. Thus, given all the foregoing, the factual finding in

De Jesus that there was no false statement of facts in both sets of appointment papers, is

binding in this case.

Even granting that the principle of conclusiveness of judgment is inapplicable to the case at bench, this Court finds no cogent reason to deviate from the factual findings in De Jesus based on a careful review of the evidence on record. The existence of malice or criminal intent is not a mandatory requirement for a finding of falsification of official documents as an administrative offense. What is simply required is a showing that De Jesus and Parungao prepared and signed the appointment papers knowing fully well that they were false.[59]

The Court, however, believes that in this case, at the time each set of appointment papers

were made, De Jesus and Parungao believed they were making true statements. They

prepared and signed the first set on the basis of the inter-office memoranda issued by the

Board members appointing their respective confidential staff conformably with DBM

approval. The second set was prepared to correct the retroactive appointments to

conform to the CSC reportorial requirements, and the same was also approved by

Administrator Jamora. There was no reason for De Jesus and Parungao to believe such

to be false. Irregular it is perhaps, not being in conformity with the CSC rules on

accreditation, but not false. Therefore, this Court finds that no falsification of official

documents occured.

Legality of Reinstatement and Authority to Sign

The CA held that, as evinced from CSC Resolution No. 011811, which ordered




LWUA to conduct an investigation, the CSC had not divested itself of jurisdiction and

authority over De Jesus’ dismissal case at the time he issued and signed both sets of

appointment papers. The CA ruled that in doing so, he defied the CSC directive recalling

his reinstatement.

De Jesus argues that, his title is not open to indirect challenge and can only be

assailed in a proceeding for quo warranto; and that absent any judicial declaration, he

remained to be a de jure officer, and even if he were only a de facto officer, his acts were

done under color of authority and, thus, valid and binding. De Jesus further argues that

the pendency of his appeal to the CSC did not render his reinstatement illegal, as he had

no choice but to rely on the regularity of the LWUA board resolution which reinstated

him, and this reinstatement should have rendered superfluous the CSC resolution

ordering investigation. He further contends that it was wrong for the CA to rely on the

CSC resolutions which were interlocutory. Since CSC Resolution No. 030504 ultimately

dismissed the case against him and in effect nullified his prior dismissal from LWUA, he

should be considered as never having left his office. Said CSC resolution should have

also rendered the previous CSC resolutions moot and academic.

De Jesus also cites CSC Resolution Nos. 07-0633 and 07-0146, which relate to other

complaints filed against him, and which recognize the legality of his reinstatement and

affirm CSC Resolution No. 030504 as res judicata. He argues that this case should be

bound by the three aforementioned CSC resolutions under the principle of res judicata.

A brief review of the relevant facts is necessary to resolve the issue at hand. LWUA

dismissed De Jesus on March 28, 2001. He appealed to the CSC on April 18, 2001. He

was reinstated on September 4, 2001 and so withdrew his appeal with the CSC the next

day. Notwithstanding, in connection with his appeal, the CSC issued Resolution No.

011811 on November 20, 2001 ordering LWUA to investigate. The two sets of

appointment papers were signed by De Jesus in December 2001. It was only on August

15, 2002 that the CSC issued Resolution No. 021090, which recalled De Jesus’

reinstatement and declared it illegal and void. However, De Jesus title was conclusively

established on May 5, 2003 by CSC Resolution No. 030504, which finally dismissed the

case against him.

Thus, prior to the CSC resolution recalling his reinstatement and declaring it illegal and

void, De Jesus cannot be faulted for relying on the LWUA board resolution reinstating

him as Deputy Administrator. Furthermore, the CSC resolution recalling his

reinstatement and declaring it illegal and void was issued only after the appointment

papers were prepared and signed. Thus, there was no misrepresentation of authority on

the part of De Jesus when he signed the appointment papers because he did so after he

was reinstated by the LWUA Board and before such reinstatement was declared illegal

and void by the CSC.

More important, the dismissal case against him was ultimately dismissed, thereby

conclusively establishing his right to his title and position as Deputy Administrator of

LWUA.

Duties under the CSC Accreditation Program

The CA also found that De Jesus failed to comply with the CSC rules under the

Accreditation Program due to his failure to submit the first set of retroactive

appointment papers to the CSC. Such failure was said to constitute a concealment of the

retroactivity from the CSC and, thus, dishonesty on his part. Parungao, on the other

hand, was reinstated by the CA after having been found that she took steps to clarify the

matter with the CSC; that she informed her superiors about her misgivings and the legal

effects of the retroactive appointments; and that she published such retroactive

appointments in the LWUA Quarterly Reports on Accession, thus, demonstrating her

good faith.

De Jesus argues that, as Deputy Administrator, it was not his responsibility to

comply with the CSC rules under the Accreditation Program. He contends that the CA

itself recognized this fact when it stated that it was the responsibility of the LWUA

Administrator to know and implement the terms and conditions of accreditation. The

CA even further stated that it was the Human Resources Management Officer who had

the responsibility of preparing and submitting the appointment papers with the ROPA.

On the other hand, Tuason and LWUA argue that under Executive Order (E.O.) No. 286,

the Office of the Deputy Administrator has direct supervision over the HRMD, and so

De Jesus should be held liable for failure to submit the first set of appointment papers in

accordance with the CSC rules.

Under CSC Resolution No. 967701[60] granting LWUA authority to take final action on its appointments under the CSC Accreditation Program, the following was said to have been violated:

6. That for purposes of immediate monitoring and records keeping, the LWUA shall submit within the first fifteen calendar days of each ensuing month to the CSFO two copies of the monthly Report on Personnel Actions (ROPA) together with certified true copies of appointments acted upon;

7. That failure to submit the ROPAs within the prescribed period shall render all appointments listed therein lapsed and ineffective;

8. That appointments issued within the month but not listed in the ROPA for the said month shall become ineffective 30 days from issuance;

x x x


As culled from the CSC letter[61] dated November 11, 1996, addressed to then LWUA

Admistrator De Vera, which accompanied CSC Resolution No. 967701, the following

responsibilities under the CSC Accreditation Program were reiterated thus:

The LWUA Administrator/appointing authority shall:

- Take final action on all appointments that he issues/signs;

- Exercise delegated authority to take final action on appointments following the terms and conditions stipulated in the Resolution and within the limits and restrictions of Civil Service Law, rules, policies and standards;

- Assume personal liability for the payment of salaries for actual services rendered by employees whose appointments have been invalidated by the CSNCRO.

On the other hand, the Human Resources Management Officer shall:

- Ensure that all procedures, requirements, and supporting papers to appointments specified in MC No. 38, s. 1997 and MC Nos. 11 and 12, s. 1996 have been complied with and found to be in order before the appointment is signed by the appointing authority;

x x x

- Prepare and submit within the first fifteen calendar days of each ensuing month to the CSFO concerned two copies of the monthly ROPA together with certified true copies of appointments issued and finally acted upon; and

x x x

[Emphases supplied]

Under LWUA Office Order No. 205.01,[62] Administrator Jamora authorized De Jesus to sign appointment papers of appointees to vacant plantilla positions in LWUA which were previously approved by the Administrator or the Board of Trustees. Thus:



In the exigency of the service and to facilitate/expedite administrative works, the Deputy Administrator, Administrative Services, is hereby authorized under delegated authority to act on and sign for and in behalf of the Administrator, documents such as Office Orders, Appointment Papers, Inter-Office Memoranda and other administrative documents including communications to CSC and/or DBM relating to filling up of vacant positions, either by promotion or recruitment, as well as transfer of personnel, which have been previously cleared/approved in writing by the Administrator, or by the Board of Trustees, as the case may be. Also delegated is the authority to act and sign for and in behalf of the Administrator, the Notice(s) of Salary Adjustment (NOSA) and Notice(s) of Salary Increment (NOSI). [Emphases supplied]

It is clear from the above that the responsibility to submit within the first fifteen (15)

calendar days of each ensuing month to the CSFO two copies of the monthly ROPA

together with certified true copies of appointments acted upon lies with the Human

Resources Management Officer (HRMO), namely, Parungao. Even granting that De

Jesus, as Deputy Administrator, has direct supervision over the Human Resources and

Management Department, it is the HRMO who is expressly tasked with the duty to

submit to the CSC the ROPA with true copies of appointments finally acted upon.

Therefore, De Jesus, as Deputy Administrator, cannot be held liable for such failure to

submit the first set of appointment papers with the ROPA as prescribed under the CSC

accreditation rules.

The authority to exercise the delegated authority to take final action on appointment

papers is lodged in the LWUA Administrator. The only duty of De Jesus is to sign

appointment papers previously approved by the Administrator or Board. Thus, De Jesus’

duty to sign appointment papers is only ministerial in nature, while the discretionary

power to take final action on appointments remains lodged in the LWUA Administrator.

De Jesus is, thus, bound only to sign appointment papers previously approved by the

LWUA Administrator or Board, in accordance with LWUA Office Order No. 205.01,

having no power to exercise any discretion on the matter.

In exercising his ministerial duty of signing the appointment papers, De Jesus obeyed

the patently lawful order of his superior. CSC Resolution No. 967701 does not charge

De Jesus with the duty to know and comply with the rules of the Accreditation Program,

that being the province of the LWUA Administrator and HRMO, as expressly provided

for in the CSC letter. Therefore, so long as the appointment papers were approved by the

Administrator or Board, the order to sign them is patently lawful. Hence, De Jesus

cannot be faulted for obeying the patently lawful orders of his superior. Furthermore,

there is no evidence on record to indicate that he acted in bad faith, as what he did was

in conformity with the authority granted to him by LWUA Office Order No. 205.01.

The same, however, cannot be said of Parungao. As HRMO, she was expressly charged

with the duty to prepare and submit within the first fifteen calendar days of each ensuing

month to the CSFO concerned two copies of the monthly ROPA together with certified

true copies of appointments issued and finally acted upon. Thus, she must necessarily be

aware that failure to submit the ROPAs within the prescribed period shall render all

appointments listed therein lapsed and ineffective, and that appointments issued within

the month but not listed in the ROPA for the said month shall become ineffective 30

days from issuance. Knowing this, she should never have given her approval by

initialing the first set of retroactive appointments as she should have known that they

would be ineffective under the CSC accreditation rules.

No Dishonesty, Mere Confusion

With the finding that the request for approval of the DBM to apply the earlier

granted authority retroactively was a disingenuous attempt to provide a semblance of

legality to the intended retroactive appointments, the CA held that the approval or

disapproval of appointment to the government was the sole office of the CSC, and not

the DBM. Furthermore, dishonesty was found present when De Jesus submitted the first

set of appointment papers to the DBM and the second set to the CSC, apparently to

ensure that the DBM was unaware of what the CSC was doing and vice versa.

A careful perusal of the records will show that the request for approval to the DBM, characterized by the CA as an attempt to provide a semblance of legality, was the act of Administrator Jamora and not of De Jesus or Parungao. The request letter[63] to the DBM was signed by Jamora. Therefore, neither De Jesus nor Parungao can be held liable for the act. The Court also failed to find any evidence on record that De Jesus deliberately ensured that DBM was unaware of what the CSC was doing and vice versa. It has already been discussed that De Jesus’ only duty was to sign the appointment papers in accordance with the LWUA office order granting him authority to do so. All responsibilities relating to the reportorial requirements pertain to Parungao as the HRMO.

Furthermore, the appointment papers provided to the DBM were referenced by

Administrator Jamora in his request letter, and not by De Jesus or Parungao. The first set

of appointment papers was never submitted to the CSC not because the retroactivity of

the appointments was being concealed, but precisely because it was realized that such

did not comply with the reportorial requirements. Given the foregoing, there could have

been no dishonesty on the part of De Jesus and Parungao.

Instead, it appears that the root of the dilemma in the case at bench lies in

confusion rather than dishonesty. This confusion pertains to the misunderstanding of the

roles of the CSC and the DBM vis-a-vis the issuance of appointment papers. Such

confusion can be gleaned from the brief to Administrator Jamora signed by De Jesus and

initialed by Parungao, stating that the issues on the retroactive appointments and

overpayments were deemed settled with the reply letter of the DBM on the retroactive

implementation of the authority previously granted.

The CA correctly stated that the approval or disapproval of appointment to the

government is the sole office of the CSC, and not the DBM, as the very authority given


to LWUA to take final action on its appointments is by virtue of CSC’s accreditation

program.[64] Thus, the DBM approval to retroact its previously granted authority to hire

the LWUA confidential staff is subject to an appointment validly issued in accordance

with CSC rules. In other words, the DBM approval for retroactivity presupposed valid

appointments. DBM’s approval was mistakenly understood to pertain to both the back

salaries and the validity of the staff’s appointments when, in fact, DBM’s approval

related only to LWUA’s authority to hire and not to the validity of the appointments of

the hired personnel. Therefore, back salaries should only have been due upon the

effectivity of valid appointments, which is within the authority of the CSC to approve,

and not of the DBM.

Dishonesty refers to a person’s "disposition to lie, cheat, deceive, or defraud;

untrustworthiness; lack of integrity; lack of honesty, probity or integrity in principle;

lack of fairness and straightforwardness; disposition to defraud, deceive or betray."[65]

The absence of dishonesty on the part of De Jesus and Parungao is supported by their

good faith in complying with the orders of Administrator Jamora. Their good faith is

manifested in several circumstances. First, their brief to Administrator Jamora, stating

that the issues on the retroactive appointments and overpayments were deemed settled

with the reply letter of the DBM, demonstrates that they actually and honestly believed

that the letter had in fact resolved the issue. Second, their memorandum[66] to

Administrator Jamora explained that the appointment papers with retroactive effectivity

dates would be violative of the provisions of CSC Res. No. 967701 and CSC Omnibus

Rules on Appointments Rule 7, Section 11. Third, an informal consultation[67] was held

with the CSC Field Director to seek advice regarding the retroactive appointments,

wherein it was suggested that the appointments be re-issued effective December 12,

2001, hence, the issuance of the second set of appointment papers. Finally, such

retroactive appointments were published in the LWUA Quarterly Reports on Accession.

The foregoing circumstances are apparently contrary to any intention to defraud or





deceive.

Parungao - GuiltyOf Simple Neglect of Duty

Simple neglect of duty is defined as the failure to give proper attention to a task

expected from an employee resulting from either carelessness or indifference.[68] In this

regard, the Court finds Parungao, as HRMO, guilty of simple neglect of duty. Given her

duties under the CSC Accreditation Program, she should have been aware of the

reportorial requirements, and of the fact that it is the CSC which has authority over

appointments, and not the DBM. Had she given the proper attention to her responsibility

as HRMO, the first set of appointment papers would never have been issued, thereby

avoiding the present predicament altogether.

When a public officer takes an oath of office, he or she binds himself or herself to faithfully perform the duties of the office and use reasonable skill and diligence, and to act primarily for the benefit of the public. Thus, in the discharge of duties, a public officer is to use that prudence, caution and attention which careful persons use in the management of their affairs.[69] Parungao failed to exercise such prudence, caution and attention.

Simple neglect of duty is classified under the Uniform Rules on Administrative Cases in

the Civil Service as a less grave offense punishable by suspension without pay for one

month and one day to six months. Finding no circumstance to warrant the imposition of

the maximum penalty of six months, and considering her demonstrated good faith, the

Court finds the imposition of suspension without pay for one month and one day as

justified.



WHEREFORE,

(1) in G.R. No. 166495, the petition is GRANTED. The assailed September 22, 2004

and January 4, 2005 Resolutions of the Court of Appeals are hereby REVERSED and

SET ASIDE. The writ of preliminary mandatory injunction issued in CA-G.R. SP No.

84902 is ordered DISSOLVED.

(2) in G.R. No. 184129, the petition is GRANTED, and in G.R. No. 184263, the

petition is PARTIALLY GRANTED. The assailed May 26, 2005 Decision and August

6, 2008 Resolution of the Court of Appeals in CA-G.R. SP No. 84902, are hereby

REVERSED and SET ASIDE, and a new one entered

a. ordering the reinstatement of Rodolfo S. De Jesus as Deputy Administrator of the

LWUA with full back salaries and such other emoluments that he did not receive by

reason of his removal; and

b. finding Human Resources Management Officer Edelwina DG. Parungao GUILTY

of Simple Neglect of Duty and hereby imposing the penalty of suspension from office

for one (1) month and one (1) day without pay.

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