THIRD DIVISION
G.R. No. 211450, July 23, 2018
OFFICE OF THE OMBUDSMAN, Petitioner, v. LOVING F. FETALVERO, JR., Respondent.
D E C I S I O N
LEONEN, J.:
Complainants in administrative proceedings carry the burden of proving their allegations with substantial evidence or such "relevant evidence that a reasonable mind might accept as adequate to support a conclusion."1
This resolves the Petition for Review2 filed by the Office of the Ombudsman assailing the April 15, 2013 Decision3 and February 20, 2014 Resolution4 of the Court of Appeals in CA-G.R. SP No. 119495.
The facts as borne by the records are as follows:
Lockheed Detective and Watchman Agency, Inc. (Lockheed) was the security services contractor for Philippine Ports Authority's Port District Office-Luzon. When the time came to bid for a new security provider, Lockheed applied for accreditation to bid for the security services contract.5
Officers from the Port Police Department reviewed Lockheed's performance and gave it a rating of 78.30 or "fair." Lockheed's fair rating effectively disqualified it from being accredited to bid for the new security services contract.6
Philippine Ports Authority Assistant General Manager for Operations Benjamin Cecilio (Cecilio) referred Lockheed's rating to Port District Office-Luzon for its review and comments. Port District Office-Luzon Security Staff Officer Captain Geronimo R. Grospe (Grospe), in tum, directed Lockheed to comment on its rating from the Port Police Department.7
Lockheed submitted its comment, and Grospe, finding merit in its arguments for reconsideration, recommended the reconsideration of its rating and the issuance of its Certificate of Accreditation to bid for the new security services contract.8
Port District Office-Luzon Port District Manager Hector Miole (Miole) also recommended the recomputation of Lockheed's rating and the issuance of its Certificate of Accreditation.9
Cecilio directed Port District Office-Luzon Superintendent Loving F. Fetalvero, Jr. (Fetalvero) to review Grospe's and Miole's recommendations against the guidelines and to draft a reply.10
Port Management Office-Puerto Princesa, Palawan Station Commander Aquilino Peregrina (Peregrina) submitted Lockheed's reevaluation performance to Miole.11
Cecilio eventually adapted Grospe's and Miele's recommendations and issued Lockheed a Certificate of Final Rating, with a readjusted rating of 83.97, or satisfactory, from the original rating of 78.30, or fair, making Lockheed eligible for the accreditation to bid.12
Port Police Department Division Manager Maximo Aguirre (Aguirre) filed a complaint-affidavit against Cecilio, Fetalvero, Miele, Grospe, and Peregrine for Grave Misconduct and Dishonesty.13
Aguirre claimed that Cecilio issued Lockheed's Certificate of Final Rating without going through the prescribed procedure under the Philippine Ports Authority Memorandum Circular No. 18-2000.14
Aguirre also averred that the Port Police Officers who gave Lockheed its original rating did not participate in its reevaluation, contrary to the claims of Peregrine that they did. Furthermore, the Port Police Officers who rated Lockheed denied reevaluating Lockheed and changing its rating. Thus, Aguirre asserted that Cecilio committed deceit, misrepresentation, and deception because the reassessment was without basis and was done to favor Lockheed.15
On May 21, 2003, Graft Investigation and Prosecution Officer I Moreno F. Generoso (Officer Generoso) dismissed16 the complaint. However, in his November 25, 2004 Review Resolution,17 Assistant Special Prosecutor III Roberto T. Agagon recommended the reversal of the May 21, 2003 Decision and the dismissal from service of the charged officers.
The Review Resolution held that while it was acceptable to move for the reconsideration of the issued rating, readjusting it from 78.30 to 83.97 was another matter altogether and constituted Grave Misconduct and Dishonesty.18
It likewise noted that Lockheed's reevaluation was irregularly made because the Port Police Officers who conducted the first evaluation denied being part of the reevaluation. Furthermore, Peregrine and Grospe had no personal knowledge of Lockheed's performance; hence, they had no basis for their reevaluation of the original rating. It also emphasized that the readjustment was done whimsically and capriciously since there were no documents or computations submitted to support the readjustment.19
The fallo of the Review Resolution read:
WHEREFORE, it is recommended that respondents Benjamin Cecilio, Loving Fetalvero, Jr., Hector Miole, Geronimo Gorospe (sic) and Aquilino Peregrino be held guilty of Grave Misconduct and Dishonesty and are meted the penalty of Dismissal from the service.20The recommendation was approved by Orlando C. Casimiro, the Deputy Ombudsman for the Military and Other Law Enforcement Offices.21
The undersigned respectfully recommends for the affirmation of the Review Resolution of Special Prosecutor III Agagon holding respondents, BENJAMIN B. CECILIO, LOVING F. FETALVERO, JR., HECTOR E. MIOLE, GERONIMO GROSPE, and AQUILINO PEREGRINO, liable for GRAVE MISCONDUCT and DISHONESTY.26 (Emphasis in the original)The recommendation was approved by Deputy Ombudsman for Luzon Mark E. Jalandoni.27
WHEREFORE, premises considered, the Petition for Review is GRANTED. The Review Resolution dated November 25, 2004 and Review Order dated October 20, 2006 of the Office of the Ombudsman in OMB-C-A-02-0023-A are hereby REVERSED and SET ASIDE. Administrative Case No. OMB-C-A-02-0023-A against petitioner Loving Fetalvero, Jr. is hereby DISMISSED.On February 20, 2014, the Court of Appeals denied35 the motions for reconsideration filed by the Office of the Ombudsman and Aguirre.
SO ORDERED.34 (Emphasis in the original)
23.4.1 The security agency/guards shall be rated on their performance and compliance to the Security Services Contract by Port Management Office (PMO) Port Police Division monthly and/or by the Office of the [Assistant General Manager for Operations] through the Port Police Department - Head Office, at least once every six months during the effectivity of the contract to ensure that the desired quality of service is rendered.The power of supervision involves oversight of a subordinate to ensure that the rules are followed. On the other hand, the power of control is broader as it involves laying down the actual rules to be followed. If the rules are not followed, the power of control allows the controlling officer to order that the act be done or undone, or even to supplant the subordinate's act with his or her own act.55
....
23.4.4. The Office of the [Assistant General Manager for Operations] shall issue a Certificate of Final Rating, based on the average rating of the Agency/Security Guards. Monthly Performance Ratings in the [Port Management Offices] within a certain [Port District Office] from the effectivity of the contract, and the average of the [Assistant General Manager for Operations], through the Port Police Department - Head Office rating on inspections conducted, pursuant to 23.4 hereof (with the last rating conducted at least one month before expiration of the contract) divided by two (for incumbent contractor).54 (Emphasis supplied)
In administrative law[,] supervision means 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, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.57Petitioner faults Cecilio for readjusting Lockheed's original rating from the Port Police Department, thereby leading to Lockheed's eligibility to participate in the bidding for a security service contract. However, as the controlling officer over the Port Police Department, Cecilio precisely had the authority to supplant its rating with a new one as long as the new rating was backed by the necessary evidence and he did not gravely abuse his authority to do so.
Needless to state, the ensuing review of the recommended ratings resulted in the re-adjustment of the ratings of [Lockheed] from Fair to Satisfactory (or from 78.3[0] to 83.97). The records of the case will reveal that the re-adjusted ratings were based on documents culled by the officials who conducted the review of the ratings consisting of Summary Reports and Monthly Performance Ratings. From these documents, it appears that there was sufficient basis to recommend the increase of the ratings of [Lockheed].Even petitioner admitted that the readjustment was not altogether devoid of evidentiary basis:
It becomes clear from the foregoing, that the re-adjustment of the ratings was based on reliable proof which was contained in the records of the [Philippine Ports Authority], and which can not be said of the initial ratings given to [Lockheed].58 (Emphasis supplied)
Moreover, if there be any re-adjustments made, it must have the accompanying documents/computations, not just re-adjusted whimsically and capriciously. The submissions of only the portion of the computation or comment in the logbook is not sufficient.59 (Emphasis supplied)As for respondent, petitioner claims that he was guilty of dishonesty and misconduct because of the undue preference that he purportedly extended to Lockheed.
Similarly, the allegations against respondent Fetalvero deserves scant consideration considering that the Memorandum dated May 2, 2001 which he submitted together with the draft Certificate of Final Rating predated April 25, 2001 and the computation of ratings of [Lockheed] was regular.Petitioner attempts to pin liability on respondent by insisting that the Certificate of Final Rating issued by Cecilio was "loosely based"63 on the reply that petitioner drafted. However, as respondent's reply is a compilation of Lockheed's ratings, it is inevitable that it will be referred to for the issuance of Certificate of Final Rating in Lockheed's favor. This cannot be interpreted as respondent's positive act to recompute or adjust Lockheed's rating to give it undue preference.
We likewise, do not find any irregularity on the Re-evaluated Performance of [Lockheed] since he (Fetalvero) only conducted the numerical computation pursuant to [Philippine Ports Authority Memorandum Circular No.] 18-2000.62 (Emphasis supplied)
| Very truly yours, |
(SGD) | |
WILFREDO V. LAPITAN | |
Division Clerk of Court |
Endnotes:
1De Jesus v. Guerrero III, 614 Phil. 520, 528-529 (2009) [Per J. Quisumbing, Second Division].
2Rollo, pp. 11-29.
3 Id. at 31-39. The Decision was penned by Associate Justice Sesinando E. Villon and concurred in by Associate Justices Florito S. Macalino and Pedro B. Corales of the Seventeenth Division, Court of Appeals, Manila.
4 Id. at 41-44. The Resolution was penned by Associate Justice Sesinando E. Villon and concurred in by Associate Justices Florito S. Macalino and Pedro B. Corales of the Former Seventeenth Division, Court of Appeals, Manila.
5 Id. at 67.
6 Id. at 68.
7 Id.
8 Id.
9 Id. at 68-69.
10 Id. at 69.
11 Id.
12 Id. at 70.
13 Id. at 66-67.
14 Id. at 67.
15 Id. at 69-70.
16 Id. at 66.
17 Id. at 66-72.
18 Id. at 70.
19 Id. at 71-72.
20 Id. at 72.
21 Id.
22 Id. at 45.
23 Id. at 45-65.
24 Id. at 62-63.
25 Id. at 63.
26 Id. at 64.
27 Id.
28 Id. at 31.
29 Id. at 36.
30 Id. at 31-39.
31 Id. at 36-37.
32 Id. at 37-38.
33 Id. at 38.
34 Id. at 38-39.
35 Id. at 41-44.
36 Id. at 11-29.
37 Id. at 18.
38 Id.
39 Id. at 18-19.
40 634 Phil. 54 (2010) [Per J. Carpio, Second Division].
41Rollo, pp. 19-20.
42 Id. at 20.
43 Id. at 20-22.
44 Id. at 22.
45 Id. at 86-89.
46 Id. at 86-87.
47 Id. at 87.
48 Id. at 103-112.
49 Id. at 104.
50De Jesus v. Guerrero III, 614 Phil. 520, 528-529 (2009) [Per J. Quisumbing, Second Division].
51Rollo, pp. 18-19.
52 Id. at 15 and 18.
53 Id. at 53.
54 Id. at 67.
55Pimentel, Jr. v. Aguirre, 391 Phil. 84, 99-100 (2000) [Per J. Panganiban, En Banc] citing Drilon v. Lim, 305 Phil. 146 (1994) [Per J. Cruz, En Banc].
56 97 Phil. 143 (1955) [Per J. Padilla, First Division].
57 Id. at 147-148.
58 Id. at 37.
59 Id. at 71.
60 Id. at 14.
61 Id. at 86.
62 Id. at 37.
63 Id. at 18.
64Office of the Ombudsman v. Torres, 567 Phil. 46, 58 (2008) [Per J. Nachura, Third Division], citing Black's Law Dictionary, 6th Ed. (1990).
65Aquino v. General Manager of the GSIS, 130 Phil. 488, 492 (1968) [Per J. Reyes, J.B.L., En Banc].
66In re: Impeachment of Horrilleno, 43 Phil. 212, 214 (1922) [Per J. Malcolm, First Division].
67 Id.