G.R. No. 172206, July 03, 2013 - OFFICE OF THE OMBUDSMAN, Petitioner, v. ERNESTO M. DE CHAVEZ, ROLANDO L. LONTOC, SR., DR. PORFIRIO C. LIGAYA, ROLANDO L. LONTOC, JR. AND GLORIA M. MENDOZA, Respondents.

This resolves the Petition for Review on Certiorari under Rule 45 of the Rules of  Court, praying that the Resolution¹ of the Court of Appeals (CA), dated April 7, 2006, be reversed and set aside.

The crux of the controversy is whether the Batangas State University Board of Regents (BSU-BOR) could validly enforce the Office of the Ombudsman's Joint Decision dated February 14, 2005 and Supplemental Resolution dated July 12, 2005, finding herein respondents guilty of dishonesty and grave misconduct and imposing the penalty of dismissal from service with its accessory penalties, despite the fact that said Joint Decision and Supplemental Resolution are pending appeal before the CA.

On August 18, 2005, the BSU-BOR received an Order from Deputy Ombudsman Victor Fernandez directing the former to enforce the aforementioned Office of the Ombudsman's Joint Decision and Supplemental Resolution.  Pursuant to said Order, the BSU-BOR issued Resolution No. 18, series of 2005, dated August 22, 2005, resolving to implement the Order of the Office of the Ombudsman.  Thus, herein respondents filed a petition for injunction with prayer for issuance of a temporary restraining order or preliminary injunction before the Regional Trial Court of Batangas City, Branch 4 (RTC), against the BSU-BOR.  The gist of the petition before the RTC is that the BSU-BOR should be enjoined from enforcing the Ombudsman's Joint Decision and Supplemental Resolution because the same are still on appeal and, therefore, are not yet final and executory.

On September 26, 2005, the RTC ordered the dismissal of  herein respondents' petition for injunction on the ground of lack of cause of action.  Respondents filed their notice of appeal and promptly filed a Motion for Issuance of a Temporary Restraining Order and/or Injunction dated December 8, 2005 with the CA.  On February 17, 2006, the CA issued a Resolution granting respondents' prayer for a temporary restraining order enjoining the BSU-BOR from enforcing its Resolution No. 18, series of 2005.

Thereafter, on March 7, 2006, the Office of the Ombudsman filed a Motion to Intervene and to Admit Attached Motion to Recall Temporary Restraining Order, with the Motion to Recall Temporary Restraining Order attached thereto.  Respondents opposed said motion and then filed an Urgent Motion for Issuance of a Writ of Preliminary Injunction. On April 7, 2006, the CA issued the Resolution subject of the present petition, pertinent portions of which are reproduced below:cralavvonlinelawlibrary

At the outset, let it be emphasized that We are accepting and taking cognizance of the pleadings lodged by the Office of the Ombudsman only in so far as to afford it with ample opportunity to  comment on and oppose appellants' application for injunctive relief, but not for the purpose of allowing the Ombudsman to formally and actively intervene in the instant appeal.  Basically, this is a regular appeal impugning the disposition of the trial court, the pivotal issue of which is only for the appellants and the Board of Regents of BSU to settle and contest, and which may be completely adjudicated upon without the active participation of the Office of the Ombudsman.

x x x x

In the final reckoning, We stand firm by Our conclusion that the administrative penalty of dismissal from the service imposed upon herein appellants is not yet final and immediately executory in nature in view of the appeal interposed therefrom by the appellants before this Court, and this fact, in the end, impelled Us to act with favor upon appellants' prayer for injunctive relief to stay the execution of the impugned Resolution of the Board of Regents of BSU.

Wherefore, premises considered, the Ombudsman's Motion to Recall the TRO is denied.  On the other hand, appellants' Urgent Motion for Issuance of a Writ of Preliminary Injunction is granted.  Accordingly, let a Writ of Preliminary Injunction be issued, as it is hereby issued, conditioned upon the posting by the appellants of an Injunction Bond in the sum of Php10,000.00, enjoining the Board of Regents of BSU, and all other persons and agents acting under its command authority, pending the complete resolution of this appeal, from effecting the enforcement and implementation of its Resolution No. 18, Series of 2005 issued pursuant to the July 12, 2005 Supplemental Resolution of the Ombudsman, Central Office.

SO ORDERED.²

Petitioners then filed a petition for review on certiorari before this Court, assailing the aforequoted CA Resolution dated  April 7, 2006, alleging that:cralavvonlinelawlibrary

I.
WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS DISREGARDED THE WELL-ENTRENCHED RULE AGAINST FORUM SHOPPING WHEN, INSTEAD OF OUTRIGHTLY DISMISSING RESPONDENTS' PETITION, THE SAID COURT TOOK COGNIZANCE OF THE PETITION AND SUBSEQUENTLY ISSUED ITS RESOLUTIONS DATED 17 FEBRUARY 2006 AND 7 APRIL 2006, RESPECTIVELY;chanroblesvirtualawlibrary

II.
WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS SERIOUSLY OVERLOOKED THE PROVISIONS OF RULE 58 OF THE 1997 REVISED RULES OF CIVIL PROCEDURE WHEN IT TOOK COGNIZANCE OF RESPONDENTS' UNVERIFIED PETITION AND SUBSEQUENTLY ISSUED ITS 17 FEBRUARY 2006 AND 7 APRIL 2006 RESOLUTIONS;chanroblesvirtualawlibrary

III.
THE ISSUANCE BY THE HONORABLE COURT OF APPEALS OF THE 17 FEBRUARY 2006 AND 7 APRIL 2006 RESOLUTIONS ENJOINING THE IMPLEMENTATION OF BOARD RESOLUTION NO. 18, SERIES OF 2005 ISSUED BY THE BOARD OF REGENTS OF BATANGAS STATE UNIVERSITY UNDULY DISREGARDS THE ESTABLISHED RULES RELATIVE TO IMPLEMENTATION OF OMBUDSMAN DECISION PENDING APPEAL, CONSIDERING THAT:cralavvonlinelawlibrary

1. BOARD RESOLUTION NO. 18, SERIES OF 2005 WAS ISSUED BY THE BOARD OF REGENTS OF THE BATANGAS STATE UNIVERSITY PURSUANT TO THE JOINT DECISION AND SUPPLEMENTAL RESOLUTION ISSUED BY THE OFFICE OF THE OMBUDSMAN.
   
   
2. UNDER THE OMBUDSMAN RULES OF PROCEDURE, AN APPEAL DOES NOT STAY THE EXECUTION OF DECISIONS, RESOLUTIONS OR ORDERS ISSUED BY THE OFFICE OF THE OMBUDSMAN.

IV.
RESPONDENTS ARE NOT ENTITLED TO THE INJUNCTIVE RELIEF PRAYED FOR IN THEIR UNVERIFIED MOTION FILED BEFORE THE HONORABLE COURT OF APPEALS.³nadcralavvonlinelawlibrary

Controverting petitioner's claims, respondents in turn allege that:cralavvonlinelawlibrary

1. PETITIONER (OMBUDSMAN) HAS NO LEGAL PERSONALITY TO INSTITUTE THE INSTANT PETITION INASMUCH AS IT IS NOT A PARTY TO THE APPEALED CASE PENDING BEFORE THE COURT OF APPEALS;chanroblesvirtualawlibrary

2. ASSUMING THAT THE PETITIONER HAS THE LEGAL PERSONALITY TO INTERVENE IN THE APPEALED CASE BEFORE THE COURT OF APPEALS, THE INSTANT PETITION IS NOT THE PROPER RECOURSE AVAILABLE TO THE PETITIONER; AND

3. THE COURT OF APPEALS DID NOT COMMIT ANY GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED RESOLUTIONS.⁴

At the outset, the Court must clarify that a petition for review on certiorari is not the proper remedy to question the CA  Resolution dated April 7, 2006 granting the Writ of Preliminary Injunction and denying petitioner's motion for intervention. Said Resolution did not completely dispose of the case on the merits, hence, it is merely an interlocutory order.  As such, Section 1, Rule 41 of the Rules of Court provides that no appeal may be taken therefrom.  However, where the assailed interlocutory order is patently erroneous and the remedy of appeal  would not afford adequate and expeditious relief, the Court allows certiorari as a mode of redress.⁵

In this case, the discussion below will show that the assailed Resolution is patently erroneous, and that granting the Office of the Ombudsman the opportunity to be heard in the case pending before the lower court is of primordial importance.  Thus, the Court resolves to relax the application of procedural rules by treating the petition as one for certiorari under Rule 65 of the Rules of Court.

The CA should have allowed the Office of the Ombudsman to intervene in the  appeal pending with the lower court.  The wisdom of this course of action has been   exhaustively explained in Office of the Ombudsman v. Samaniego.⁶   In said case, the CA also issued a Resolution denying the Office of the Ombudsman's motion to intervene.  In resolving the issue of whether the Office of the Ombudsman has legal interest to intervene in the appeal of its Decision, the Court expounded, thus:cralavvonlinelawlibrary

x x x  the Ombudsman is in a league of its own. It is different from other investigatory and prosecutory agencies of the government because the people under its jurisdiction are public officials who, through pressure and influence, can quash, delay or dismiss investigations directed against them. Its function is critical because public interest (in the accountability of public officers and employees) is at stake.

x x x x

The Office of the Obudsman sufficiently alleged its legal interest in the subject matter of litigation. Paragraph 2 of its motion for intervention and to admit the attached motion to recall writ of preliminary injunction averred:cralavvonlinelawlibrary

“2. As a competent disciplining body, the Ombudsman has the right to seek redress on the apparently erroneous issuance by this Honorable Court of the Writ of Preliminary Injunction enjoining the implementation of the Ombudsman's Joint Decision  x  x  x.”

In asserting that it was a "competent disciplining body," the Office of the Ombudsman correctly summed up its legal interest in the matter in controversy. In support of its claim, it invoked its role as a constitutionally mandated "protector of the people," a disciplinary authority vested with quasi-judicial function to resolve administrative disciplinary cases against public officials. To hold otherwise would have been tantamount to abdicating its salutary functions as the guardian of public trust and accountability.

Moreover, the Office of the Ombudsman had a clear legal interest in the inquiry into whether respondent committed acts constituting grave misconduct, an offense punishable under the Uniform Rules in Administrative Cases in the Civil Service. It was in keeping with its duty to act as a champion of the people and preserve the integrity of public service that petitioner had to be given the opportunity to act fully within the parameters of its authority.

It is true that under our rule on intervention, the allowance or disallowance of a motion to intervene is left to the sound discretion of the court after a consideration of the appropriate circumstances. However, such discretion is not without limitations. One of the limits in the exercise of such discretion is that it must not be exercised in disregard of law and the Constitution. The CA should have considered the nature of the Ombudsman's powers as provided in the Constitution and RA 6770.

x x x x

Both the CA and respondent likened the Office of the Ombudsman to a judge whose decision was in question. This was a tad too simplistic (or perhaps even rather disdainful) of the power, duties and functions of the Office of the Ombudsman. The  Office of the Ombudsman cannot be detached, disinterested and neutral specially when defending its decisions. Moreover, in administrative cases against government personnel, the offense is committed against the government and public interest. What further proof of a direct constitutional and legal interest in the accountability of public officers is necessary?⁷

Here, since its power to ensure enforcement of its Joint Decision and Supplemental Resolution is in danger of being impaired, the Office of the Ombudsman had a clear legal interest in defending its right to have its judgment carried out.  The CA patently erred in denying the Office of the Ombudsman's motion for intervention.

A discussion of the next issue of the propriety of the issuance of a writ of preliminary injunction in this case would necessarily touch on the very merits of the case, i.e., whether the concerned government agencies and instrumentalities may execute the Office of the Ombudsman's order to dismiss a government employee from service even if the Ombudsman's decision is pending appeal.  It would also be a great waste of time to remand the case back to the CA, considering that the entire records of the proceedings have already been elevated to this Court.  Thus, at this point, the Court shall fully adjudicate the main issue in the case.

Note that for a writ of preliminary injunction to issue, the following essential requisites must concur, to wit:  (1) that the invasion of the right is material and substantial; (2) that the right of complainant is clear and unmistakable; and, (3) that there is an urgent and paramount necessity for the writ to prevent serious damage.⁸  In the present case, the right of respondents cannot be said to be clear and unmistakable, because the prevailing jurisprudence is that the penalty of dismissal from the service meted on government employees or officials is immediately executory in accordance with the valid rule of execution pending appeal uniformly observed in administrative disciplinary cases.  In Facura v. Court of Appeals,⁹ the Court fully threshed out this matter, thus:cralavvonlinelawlibrary

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, 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:cralavvonlinelawlibrary

“Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman,  as amended by Administrative Order No. 17 dated September 15, 2003, provides:cralavvonlinelawlibrary

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. 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, we held:cralavvonlinelawlibrary

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.

x x x x

x x x  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 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, 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. [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.¹⁰

From the foregoing elaboration, there can be no cavil that respondents do not have any right to a stay of the Ombudsman's decision dismissing them from service.  Perforce, the BSU-BOR acted properly in issuing Resolution No. 18, series of 2005, dated August 22, 2005, pursuant to the order of the Ombudsman, as its legally-mandated duty. The CA's Resolution granting respondents' prayer for a writ of preliminary injunction is patently erroneous.

WHEREFORE, the petition is GRANTED.  The Resolution of the Court of Appeals, dated April 7, 2006, is SET ASIDE.  The Order of the Regional Trial Court of  Batangas City, Branch 4, dated September 26, 2005 in Civil Case No. 7775, is REINSTATED.

SO ORDERED.

Velasco, Jr., (Chairperson), Abad, Mendoza, and Leonen, JJ., concur.



N O T I C E  OF J U D G M E N T

Sirs/Mesdames:cralavvonlinelawlibrary

Please take notice that on ___July 3, 2013___ a Decision, copy attached herewith, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on July 12, 2013 at 10:35 a.m.

Endnotes:

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¹ Penned by Associate Justice Rosmari D. Carandang, with Associate Justices Andres B. Reyes, Jr. and Japar B. Dimaampao, concurring; rollo, pp. 55-63.cralawlibrary

²Rollo, pp. 57-63.cralawlibrary

³ Id. at. 22-24.cralawlibrary

⁴ Id. at 101.cralawlibrary

⁵Equitable PCI Bank, Inc. vs. Fernandez, G.R. No. 163117, December 18, 2009, 608 SCRA 433, 439-440

⁶ G.R. No. 175573, September 11, 2008, 564 SCRA 567.cralawlibrary

⁷ Id. at 576-581. (Emphasis supplied; citations omitted)

⁸ Strategic Alliance Development Corporation vs. Star Infrastructure Development Corporation, G.R. No. 187872, April 11, 2011, 647 SCRA 545, 555-556.cralawlibrary

⁹ G.R. No. 184263,  February 16, 2011, 643 SCRA 428.cralawlibrary

¹⁰ Id. at 450-454.