[G.R. No. 154083, February 27, 2013]
OFFICE OF THE OMBUDSMAN, Petitioner, v. SAMSON DE LEON, Respondents.
D E C I S I O N
From the Municipal Hall, we proceeded to the quarrying area. Along our way, we have noticed a dump truck loaded with quarrying materials coming from the quarrying site. At this juncture, we signaled the truck driver to stop and then checked the driver’s license, the truck registration while my other companions took pictures of the truck.
Verification of the above hauler truck with Plate No. TKU-121 (Isuzu) is owned and operated by Mayor Lito Tanjuatco of Tanay, Rizal. The truck driver, a certain Alfredo Casamayor Payot informed this Investigator that he is paying One hundred (P100.00) Pesos per truckload of quarrying materials to the quarry operator, a certain Mr. Javier.
x x x x
Jonathan Llagas, Municipal Planning and Development Coordinator denied knowing Mr. Javier nor any quarrying activities going on in Baras, Rizal. When we informed him of our findings, he insisted that the quarrying operations is within the jurisdictional area of Tanay, Rizal. To cut short our discussion, we requested him to look and see the quarrying operations to determine the territorial boundaries, whether it is a part of Baras or Tanay and to submit his findings and action taken on our request. However, up to this writing, Jonathan Llagas failed to comply.
Per report received by the Office of the Assistant Ombudsman, EIO, stated that the quarrying activities in Baras, Rizal is still going on the following day, Saturday, April 18, 1998, after our visit on Friday, April 17, 1998, (p. 21, Records). With this information, this investigator proceeded back to the Baras, Rizal and conducted ocular inspection on May 8, 1998, before proceeding to the Laguna Lake Development Authority in Calauan, Laguna, in compliance with a Mission Order.
True enough, we were able to see for ourselves the continuing quarry operations and the quarried stones, soil and materials were dumped to a portion of the Laguna de Bay thereby reclaiming said portion allegedly to be developed as Resort and restaurant establishments.3
WHEREFORE , it is respectfully recommended that:
x x x x
3) Respondent SAMSON G. DE LEON, Provincial Environment and Natural Resources Officer, be penalized with one (1) year suspension without pay, for Gross Neglect of Duty.7
x x x x
- PUBLIC RESPONDENT OFFICE OF THE OMBUDSMAN ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN DISREGARDING THE FINDINGS AND CONCLUSIONS EMBODIED IN THE DECISION DATED 29 APRIL 1999.
- PUBLIC RESPONDENT OFFICE OF THE OMBUDSMAN ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN FINDING THE PETITIONER LIABLE FOR GROSS NEGLECT OF DUTY.
- PUBLIC RESPONDENTS ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN EFFECTING THE IMMEDIATE EXECUTION OF THE PENALTY OF SUSPENSION FOR A PERIOD OF ONE YEAR, ON THE PETITIONER.12
WHEREFORE, premises considered, the Memorandum dated October 20, 1999 issued by the Office of the Ombudsman in OMB-ADM-0-98-0414 is hereby MODIFIED in that petitioner SAMSON DE LEON is hereby penalized with THREE (3) MONTHS SUSPENSION without pay for SIMPLE NEGLECT OF DUTY. Furthermore, it appearing that he has already served such penalty, petitioner is hereby ordered REINSTATED to his former position.
THE COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THIS HONORABLE COURT CONSIDERING THAT:
IT DECREED PRIVATE RESPONDENT LIABLE FOR SIMPLE NEGLECT OF DUTY NOTWITHSTANDING THE UNDENIABLE FACT THAT HE FAILED TO PERFORM A TASK WHICH IS CLEARLY REPOSED ON HIM ON A REGULAR BASIS AND WHICH BREACH OF DUTY APPEARS FLAGRANT AND PALPABLE.
IT SUBSTITUTED ITS FINDING TO THAT OF THE OMBUDSMAN WHEN NO COGENT REASON EXISTS THEREFOR.
IT HELD THAT THE DECISION OF THE OMBUDSMAN IS NOT IMMEDIATELY EXECUTORY.16
In the case at bench, petitioner, although guilty of neglect in the performance of his official duties, may only be held liable for Simple Neglect of Duty. Petitioner’s offense is not of such nature to be considered brazen, flagrant and palpable as would amount to a Gross Neglect of Duty. As pointed out by petitioner, as early as May 1997, upon the complaint of one Teresita G. Fabian, he ordered the inspection of the subject property located in Baras, Rizal. Relying on the report of Forrester Ferrer and Engineer Aide Velasquez, petitioner indorsed to the Provincial Mining Regulatory Board the former’s findings that there were “extraction” in the area. The same findings were likewise forwarded to the Regional Executive Director of the DENR. A reinvestigation of the area was again conducted in July 1997 upon petitioner’s instruction with the findings that there were no illegal quarrying activities being undertaken in the premises although a payloader and a back hoe can be seen in the area. Nonetheless, petitioner should not have merely relied on the reports and instead confirmed such findings by personally proceeding to the premises and verifying the findings, specially since the report cited the presence of large machineries, and that there was visible extraction in the area. While the Court is not inclined to conclude that there were indeed illegal quarrying activities in the area, nevertheless, prudence dictates that petitioner should have brought it upon himself to confirm the findings of the investigation. Moreover, in this day and age where environmental concerns are not to be trifled with, it devolves upon petitioner, as the Provincial Environment and Natural Resource Officer, to oversee the protection and preservation of the environment within his province. The Court cannot accept petitioner’s passing the buck, so to speak, to the Regional Director of the DENR for to do so would be tolerating bureaucracy and inefficiency in government service.
Be that as it may, as the Court previously stated, petitioner’s negligence does not amount to a gross neglect of duty. Given that his neglect is not that odious, petitioner should only be liable for Simple Neglect of Duty and should accordingly be meted out the penalty of three (3) months suspension without pay.17
1. Plans, organizes, directs and coordinates the overall office and field activities and operation of the province concerning environmental and natural resources programs/projects;
2. Supervises and enforces discipline to personnel pertaining to norm and conduct in the effective performance of tasks pursuant to manual operation guidelines and establish[ed] practices;
3. Makes final review and correction of administrative and technical report submitted by subordinates;
4. Coordinates with local government units, national office officials and other concern (sic) parties related to the conduct and operation of the office;
5. Execute[s] and implement[s] policy, rules and regulations work programs and plans laid down by the Regional Office;
6. Approves routine and non-policy determining papers and renders administrative and technical decision(s) within the limit(s) of delegated authorities;
7. Occasionally conduct[s] field inspection to obtain on the spot information about the needs and problems of the provincial office; and
8. Perform[s] such other duties as maybe (sic) assigned.19
x x x Nonetheless, petitioner should not have merely relied on the reports and instead confirmed such findings by personally proceeding to the premises and verifying the findings, specially since the report cited the presence of large machineries, and that there was visible extraction in the area. While the court is not inclined to conclude that there were indeed illegal quarrying activities in the area, nevertheless, prudence dictates that petitioner should have brought it upon himself to confirm the findings of the investigation. Moreover, in this day and age where environmental concerns are not to be trifled with, it devolves upon petitioner, as the Provincial Environment and Natural Resource Officer to oversee the protection and preservation of the environment with his province. The Court cannot accept petitioner’s passing the buck so to speak. x x x.21
x x x. Book 5, Title 1, Chapter 6 of the Administrative Code of 1987 cited by the OSG is not applicable as said rule governs administrative cases decided by the Civil Service Commission. In this case, petitioner was adjudged liable by the Office of the Ombudsman, hence RA 6670 of the Ombudsman Act of 1989 shall govern. In this regard, Section 27 of RA 6670 provides that ‘(A)ny order, directive, or decision, imposing the penalty of public censure or reprimand, a suspension of not more than a month’s salary shall be final and unappealable.” Logically, therefore, suspension of more than one (1) month is not deemed final and executory. (Underscoring in the original)
Section 21. Official Subject to Disciplinary Authority; Exceptions. — The Office of 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 only by impeachment or over Members of Congress, and the Judiciary.
In fine, the manifest intent of the lawmakers was to bestow on the Office of the Ombudsman full administrative disciplinary authority in accord with the constitutional deliberations. Unlike the Ombudsman-like agencies of the past the powers of which extend to no more than making findings of fact and recommendations, and the Ombudsman or Tanodbayan under the 1973 Constitution who may file and prosecute criminal, civil or administrative cases against public officials and employees only in cases of failure of justice, the Ombudsman under the 1987 Constitution and R.A. No. 6770 is intended to play a more active role in the enforcement of laws on anti-graft and corrupt practices and other offenses committed by public officers and employees. The Ombudsman is to be an “activist watchman,” not merely a passive one. He is vested with broad powers to enable him to implement his own actions.30
The Court of Appeals held that the order of the Ombudsman imposing the penalty of dismissal is not immediately executory. The Court of Appeals applied the ruling in Lapid v. Court of Appeals, that all other decisions of the Ombudsman which impose penalties that are not enumerated in Section 27 of RA 6770 are neither final nor immediately executory.
In Lapid v. Court of Appeals, the Court anchored its ruling mainly on Section 27 of RA 6770 , as supported by Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman. The pertinent provisions read:
Section 27 of RA 6770
SEC. 27. Effectivity and Finality of Decisions. – (1) All provisionary orders at the Office of the Ombudsman are immediately effective and executory.
A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after receipt of written notice and shall be entertained only on any of the following grounds:
(1) New evidence has been discovered which materially affects the order, directive or decision;
(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The motion for reconsideration shall be resolved within three (3) days from filing: Provided, That only one motion for reconsideration shall be entertained.
Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month’s salary shall be final and unappealable.
In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court.
The above rules may be amended or modified by the Office of the Ombudsman as the interest of justice may require. (Emphasis supplied)
Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman (AO 07):
Sec. 7. Finality 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 and unappealable. In all other cases, the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari, shall have been filed by him as prescribed in Section 27 of RA 6770. (Emphasis supplied)
The Court held in Lapid v. Court of Appeals that the Rules of Procedure of the Office of the Ombudsman “mandate that decisions of the Office of the Ombudsman where the penalty imposed is other than public censure or reprimand, suspension of not more than one month salary are still appealable and hence, not final and executory.”
Subsequently, on 17 August 2000, the Ombudsman issued Administrative Order No. 14-A (AO 14-A), amending Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman. The amendment aims to provide uniformity with other disciplining authorities in the execution or implementation of judgments and penalties in administrative disciplinary cases involving public officials and employees. Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman, as amended by AO 14-A, reads:
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 and unappealable. In all other cases, the decision may be appealed within ten (10) 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.(Emphasis supplied)
On 15 September 2003, AO 17 was issued, amending Rule III of the Rules of Procedure of the Office of the Ombudsman. Thus, Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman was further amended and now reads:
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)
Hence, in the case of In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of DPWH, the Court noted that Section 7 of AO 17 provides for execution of the decisions pending appeal, which provision is similar to Section 47 of the Uniform Rules on Administrative Cases in the Civil Service.
More recently, in the 2007 case of Buencamino v. Court of Appeals, the primary issue was whether the decision of the Ombudsman suspending petitioner therein from office for six months without pay was immediately executory even pending appeal in the Court of Appeals. The Court held that the pertinent ruling in Lapid v. Court of Appeals has already been superseded by the case of In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of DPWH, which clearly held that decisions of the Ombudsman are immediately executory even pending appeal.”32 (Emphasis supplied)
1Rollo, pp. 34-38; penned by Associate Justice Ma. Alicia Austria-Martinez (later Presiding Justice of the CA and Member of this Court, now retired), with Associate Justice Hilarion L. Aquino (retired) and Associate Justice Mercedes Gozo-Dadole (retired) concurring.
2 Id. at 56-60.
3 Id. at 57-58.
4 Id. at 61-65.
5 Id. at 66-74.
6 Id. at 75-79.
7 Id. at 79.
8 Id. at 80-91.
9 Id. at 92-97.
10 Id. at 98.
11 Id. at 99-112.
12 Id. at 104.
13 Id. at 113-122.
14 Id. at 37.
15 Id. at 41-55.
16 Id. at 17-18.
17 Id. at 36-37.
18 Rule IV, Section 52 (A) of the Uniform Rules of Administrative Cases in the Civil Service.
19Rollo, p. 123.
21 Id. at 36-37.
22 Fernandez v. Office of the Ombudsman, G.R. No. 193983. March 14, 2012, 668 SCRA 351, 364.
23Philippine Retirement Authority v. Rupa, G.R. No. 140519, August 21, 2001, 363 SCRA 480, 487.
24 Fernandez v. Office of the Ombudsman, supra note 22.
25 Republic v. Canastillo, G.R. No. 172729, June 8, 2007, 524 SCRA 546, 555.
26 Republic Act No. 6770 also provides:
Section 13. Mandate. — The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people.
27 Section 16, Republic Act No. 6770, states:
Section 16. Applicability. — The provisions of this Act shall apply to all kinds of malfeasance, misfeasance, and non-feasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office.
28 Section 19, Republic Act No. 6770, says:
Section 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.
29 G.R. No. 165416, G.R. No. 165584, and G.R. No. 165731, January 22, 2008, 542 SCRA 253.
30 Id. at 270.
31 GR No. 159395, May 7, 2008, 554 SCRA 75.
32 Id. at 91-95.