[G.R. NO. 160596 : March 20, 2009]
REPUBLIC OF THE PHILIPPINES, represented by the Office of the Ombudsman, Petitioner, v. IGNACIO BAJAO, Respondent**
D E C I S I O N
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the May 22, 2003 Decision1 of the Court of Appeals (CA) which reversed the September 27, 2001 Decision2 of the Office of the Deputy Ombudsman for the Visayas (Ombudsman) in OMB-VIS-ADM-2000-0854, and the October 13, 2003 CA Resolution3 which denied the Ombudsman's Motion for Reconsideration.
The relevant facts are as follows:
On the basis of a Complaint4 filed by Candijay, Bohol Municipal Vice-Mayor Antonio L. Po and Sangguniang Bayan Members Deodoro G. Hinacay, Gaspar G. Amora, Philbert H. Bertumen, Leonardo A. Tutor, Peregrine Castrodes and Sergio G. Amora, Jr. (complainants) against Municipal Treasurer Ignacio Bajao (respondent) for Failure to Make Delivery of Public Funds punishable under Article 221 of the Revised Penal Code and Section 3(F) of Republic Act (R.A.) No. 3019, and for Grave Abuse of Authority in relation to respondent's withholding of complainants' uniform allowance for 1999, the Office of the Ombudsman (Visayas) issued a decision, the dispositive portion of which reads:
IN VIEW OF ALL THE FOREGOING, after finding respondent to be administratively liable for Simple MISCONDUCT a penalty of one (1) month suspension from office without pay is hereby imposed, with a warning that a repetition of the same act will be dealt with more severely.
The Ombudsman also issued an Order dated January 14, 2002, directing the immediate implementation of its decision pursuant to Administrative Order No. 14, dated July 30, 2000, amending Rule III of Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman) which provides that a penalty not exceeding one month suspension is final and unappealable.6
Respondent filed with the CA a Special Civil Action for Certiorari and an Amended Petition for Special Civil Action for Certiorari under Rule 65 of the Rules of Court. Respondent disputed the factual basis of the Ombudsman decision as well as its authority to directly impose a penalty of suspension, arguing that the Ombudsman may only recommend to the proper disciplining authority the implementation of such penalty.7
The CA issued a Temporary Restraining Order against the implementation of the Ombudsman decision.10 Thereafter, it rendered the May 22, 2003 Decision assailed herein, declaring that the Ombudsman exceeded its authority in penalizing respondent. According to the CA, the Constitution itself and R.A. No. 6770 or the Ombudsman Act of 1989, limit the authority of the Ombudsman in administrative cases to recommending the appropriate penalty to be imposed on an erring public official or employee, leaving the adoption and enforcement of the recommended penalty to the discretion of the immediate disciplining authority. The CA elaborated:
Paragraph 3, Section 13, Article XI of the Constitution dealing specifically on the power of the Ombudsman, provides:
(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.
In conjunction thereto, Section 12 of Article XI states:
Sec. 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.
We must give Our assent to the stand of petitioner that the operative phrase in Paragraph 3, Section 13, Article XI, is "to recommend". The word "recommend" has been defined by Black's Law Dictionary as "an action which is advisory in nature rather than one having any binding effect."11
x x x
Even under the Ombudsman Act of 1989, wherein the Legislature sought to put more teeth, so to speak, to the Office of the Ombudsman, it may be gleaned from the language of the law that punitive prerogatives have still be withheld from the Ombudsman in so far as the official complained against is concerned. Paragraph 3 of Section 15 of the said law reads:
Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties:
[x x x x]
(3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer; (Emphasis supplied)cralawlibrary
x x x
Thus, even Republic Act No. 6770 recognizes that the power of the Ombudsman to adjudicate penalty after investigation is merely recommendatory or suggestive, for otherwise, the law would not have to provide for the Ombudsman to first go to the disciplining authority and direct the latter to take appropriate action against the erring government functionary. This is as it should be. For to give it a contrary construction would be productive of nothing but mischief, such being at war with the explicit language of the Fundamental Law. As the spring cannot rise higher than its source, neither can a statute be at variance with the Constitution.
x x x
Indeed, the Supreme Court in Tapiador v. Office of the Ombudsman, per Justice Sabino de Leon, stated, albeit in an obiter dictum, that "(b)esides, assuming that petitioner were administratively liable, the Ombudsman has no authority to directly dismiss the petitioner from the government service, more particularly from his position in the BID. Under Section 13, subparagraph (3), of Article XI of the 1987 Constitution, the Ombudsman can only 'recommend' the removal or the public official or employee found to be at fault, to the public official concerned.
In fine, We find, and so hold, that the Office of the Ombudsman has only the power to investigate possible misconduct of a government official or employee in the performance of his functions, and thereafter recommend to the disciplining authority the appropriate penalty to be meted out, and that it is the disciplining authority that has the power or prerogative to impose such penalty.12
The CA further absolved respondent of the offense of simple misconduct in view of findings that respondent was justified in withholding complainants' uniform allowance for lack of authorization from the municipal mayor for the release of said funds as required under the Local Government Code and its implementing rules, as well as Local Budget Circular No. 68 of the Department of Budget and Management.13 The dispositive portion of the CA Decision reads:
WHEREFORE, the Petition is hereby GRANTED. The impugned Order [sic] of the Office of the Ombudsman, having been issued without grave abuse of discretion amounting to excess of jurisdiction, hereby ANNULLED AND SET ASIDE.
The Ombudsman's motion for reconsideration was denied by the CA.15
Through the Solicitor General, the Ombudsman filed the present petition which the Court initially denied, also for having been filed out of time; but upon motion for reconsideration by the Ombudsman, the petition was eventually given due course per its Resolution dated April 12, 2004.18
The claim of respondent - - that the present petition is barred by the Ombudsman prior petition (G.R. No. 160501), which was dismissed - - is not plausible. Suffice it to state that the Court gave due course to the present petition, for it raises highly meritorious arguments, dealing with the undue diminution of the constitutionally mandated investigatory power of the Ombudsman, against which the Ombudsman must be accorded every opportunity to defend itself;19 and that the assailed decision of the CA is blatantly erroneous.20
Exactly the same issues raised in the petition, to wit:
Is the Office of the Ombudsman empowered to conduct administrative adjudication proceedings against public officers over whom it has jurisdiction?
Are orders/decisions of the Office of the Ombudsman imposing the penalty of suspension of one month appealable?21
In Office of the Ombudsman v. Court of Appeals and Armilla, therein respondents Armilla, all employees of the Department of Environment and Natural Resources, were found by the Ombudsman administratively liable for simple misconduct and meted the penalty of suspension for one month. On Petition for Certiorari filed by Armilla, et al., the CA held that the Ombudsman committed grave abuse of discretion in imposing the penalty of one-month suspension. Citing Tapiador v. Office of the Ombudsman,25 the CA declared that the Ombudsman's power in administrative cases is limited to the recommendation of the penalty of removal, suspension, demotion, fine, censure, or prosecution of a public officer or employee found to be at fault; accordingly, it has no power to impose the penalty of suspension on Armilla, et al.
The CA adopted the same view in Office of the Ombudsman v. Court of Appeals and Santos where it held that the Ombudsman had no authority to directly penalize therein respondent Lorena Santos, but may only recommend to her agency, the Land Transportation Franchising and Regulatory Board, the imposition of an administrative penalty against her.
In both cases, the Court reversed the CA and declared that the scope of the authority of the Ombudsman in administrative cases as defined under the Constitution and R.A. No. 6770 is broad enough to include the direct imposition of the penalty of removal, suspension, demotion, fine or censure on an erring public official or employee. In Office of the Ombudsman v. Court of Appeals and Armilla, the Court held:
Still in connection with their administrative disciplinary authority, the Ombudsman and his deputies are expressly given the power to preventively suspend public officials and employees facing administrative charges in accordance with Section 24 of Republic Act No. 6770:
Sec. 24. Preventive Suspension. - The Ombudsman and his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.
Section 25 thereof sets forth the penalties as follows:
Sec. 25. Penalties. - (1) In administrative proceedings under Presidential Decree No. 807, the penalties and rules provided therein shall be applied.
(2) In other administrative proceedings, the penalty ranging from suspension without pay for one year to dismissal with forfeiture of benefits or a fine ranging from five thousand pesos (
P5,000.00) to twice the amount malversed, illegally taken or lost, or both at the discretion of the Ombudsman, taking into consideration circumstances that mitigate or aggravate the liability of the officer or employee found guilty of the complaint or charges.
As referred to in the above provision, under Presidential Decree No. 807, the penalties that may be imposed by the disciplining authority in administrative disciplinary cases are removal from the service, transfer, demotion in rank, suspension for not more than one year without pay, fine in an amount not exceeding six months' salary, or reprimand.
Section 27 of Republic Act No. 6770 provides for the period of effectivity and finality of the decisions of the Office of the Ombudsman:
Sec. 27. Effectivity and Finality of Decisions. - (1) All provisionary orders of the Office of the Ombudsman are immediately effective and executory.
x x x
Findings of facts 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.
x x x
All these provisions in Republic Act No. 6770 taken together reveal the manifest intent of the lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the entire gamut of administrative adjudication which entails the authority to, inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers and employees pending an investigation, determine the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and, necessarily, impose the said penalty.
Moreover, in Office of the Ombudsman v. Court of Appeals and Santos, the Court drew attention to subparagraph 3 of Sec. 15 of R.A. No. 6770, which provides:
Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties:
x x x
(3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer. (Emphasis supplied)cralawlibrary
The Court held that the aforecited proviso - - that the refusal, without just cause, of any officer to comply with an order of the Ombudsman to penalize an erring officer or employee with removal, suspension, demotion, fine, censure, or prosecution is a ground for disciplinary action against said officer - - is a strong indication that the Ombudsman's "recommendation" is not merely advisory in nature but is actually mandatory within the bounds of law.
It being settled that the Ombudsman has the authority to impose administrative penalties, it did not act with grave abuse of discretion in the present case when it meted the penalty of suspension on respondent for simple misconduct. The CA therefore erred in granting the Petition for Certiorari of respondent.
The next issue is whether the imposition of such penalty can no longer be appealed to the CA.
The Court had occasion to resolve the same issue in Herrera v. Bohol.26 In said case, the Ombudsman found therein petitioner Herrera guilty of simple misconduct and imposed upon him the penalty of suspension for one month without pay. Herrera filed an appeal with the CA, but the same was dismissed on the ground "that the questioned decision of the Ombudsman is unappealable x x x." Citing Lopez v. Court of Appeals,27 the Court affirmed the decision of the CA, thus:
x x x [T]he Court, again citing Sec. 27 of R.A. No. 6770, Sec. 7, Rule III of the Rules of Procedure of the Office of the Ombudsman and Lapid v. Court of Appeals, reiterated that decisions of the Ombudsman in administrative cases imposing the penalty of public censure, reprimand, or suspension of not more than one month, or a fine equivalent to one month salary shall be final and unappealable. The penalty imposed upon herein petitioner being suspension for one month without pay, we hold the same final and unappealable, as correctly ruled by the Court of Appeals. (Emphasis added)
Thus, the CA erred when it reviewed on appeal the factual basis of the Ombudsman decision despite its being final and unappealable under Sec. 27 of R.A. No. 6770. As we held in Republic v. Francisco,28 considering that a decision of the Ombudsman imposing the penalty of suspension for not more than one month is final and unappealable, "it follows that the CA ha[s] no appellate jurisdiction to review, rectify or reverse the same." This is not to say that decisions of the Ombudsman cannot be questioned - such decisions are still subject to the test of arbitrariness or grave abuse of discretion through a Petition for Certiorari under Rule 65 of the Rules of Court. However, as earlier discussed, the Ombudsman did not act with grave abuse of discretion in imposing on respondent the penalty of suspension without pay for not more than one month, the same being within its ample authority to impose under the Constitution and R.A. No. 6770.
WHEREFORE, the petition is GRANTED. The May 22, 2003 Decision and October 13, 2003 Resolution of the Court of Appeals are REVERSED and SET ASIDE.
* In lieu of Justice Minita V. Chico-Nazario, per Special Order No. 590 dated March 17, 2009.
** The present petition impleaded the Court of Appeals as respondent. Pursuant to Section 4, Rule 45 of the Rules of Court, the name of the Court of Appeals is deleted from the title.
1 Penned by Associate Justice Romeo A. Brawner and concurred in by Associate Justices Eliezer R. de Los Santos and Regalado E. Maambong; rollo, p. 48.
2 CA rollo, p. 29.
3 Rollo, p. 64.
4 CA rollo, p. 35.
5 Id. at 33-34.
6 Id. at 134.
7 Id. at 96-98.
8 CA rollo, p. 326.
9 Id. at 299.
10 Id. at 116.
11 Rollo, p. 51.
12 Rollo, pp. 57-58.
13 Rollo, pp. 59-60.
14 Id. at 60.
15 Id. at 67.
16 Docketed as G.R. No. 160501.
17 Entry of Judgment dated March 15, 2004, rollo, p. 164.
18 Id. at 153.
19 Ombudsman v. Court of Appeals, G.R. No. 159395, May 7, 2008, 554 SCRA 75.
21 Petition, rollo, p. 17.
22 G.R. No. 160675, June 16, 2006, 491 SCAR 92.
23 G.R. No. 167844, November 22, 2006, 507 SCRA 593.
24 G.R. No. 155320, February 5, 2004, 422 SCRA 282.
25 429 Phil. 47, 58 (2002).
26 Supra note 24. See also Office of the Ombudsman v. Alano, G.R. No. 149102, February 15, 2007, 516 SCRA 18; Barata v. Abalos, Jr., G.R. No. 142888, June 6, 2001, 358 SCRA 575.
27 G.R. No. 144573, September 24, 2002, 389 SCRA 570.
28 G.R. No. 163089, December 6, 2006, 510 SCRA 377.