FIRST DIVISION
G.R. No. 193336, September 26, 2018
OFFICE OF THE OMBUDSMAN, Petitioner, v. ELMER M. PACURIBOT, Respondent.
D E C I S I O N
LEONARDO-DE CASTRO, C.J.:
The Office of the Ombudsman filed this Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the Court of Appeals Decision1 dated August 7, 2009 and Resolution2 dated July 12, 2010 in CA-G.R. SP No. 02895-MIN which set aside the directive of the OMB for the immediate implementation, even before finality, of a decision it rendered in an administrative case against respondent Elmer M. Pacuribot penalizing him with nine (9) months suspension from office for Immorality or Disgraceful or Immoral Conduct.
The facts are not disputed.
Respondent, Municipal Treasurer of El Salvador, Province of Misamis Oriental, was administratively charged by his wife before the Ombudsman of Immorality and Conduct Unbecoming of Public Officer allegedly for fathering two children with another woman. The case against respondent was docketed as OMB-M-A-07-029-B.
After the proceedings, the Ombudsman rendered its Decision3 dated July 23, 2008 against respondent, which was approved by then Acting Ombudsman Orlando C. Casimiro on November 27, 2008, disposing of the case as follows:
WHEREFORE, foregoing premises considered, this Office finds substantial evidence to hold ELMER PACURIBOT y MAGANA guilty of Immorality or Disgraceful and Immoral Conduct. In the absence of mitigating and aggravating circumstances, he is thus meted the penalty of NINE (9) MONTHS SUSPENSION pursuant to Sec. 52.A.15, Rule IV of CSC Resolution No. 991936, otherwise known as the Uniform Rules on Administrative Cases in the Civil Service, in relation to Sec. 54.b, Sec. 56.d, and Sec. 58.d, Rule IV thereof. On the other hand, the charge for Conduct Unbecoming of a Public Officer is hereby DISMISSED. Let a copy of this Decision be entered in respondent's 201 (Personal) File.
Section 7, Rule III (Procedure in Administrative Cases) of the Rules of Procedure of the Office of the Ombudsman, as amended by Administrative Order No. 17, provides:
xxxxOn April 21, 2009, respondent filed his Motion for Partial Reconsideration of the July 23, 2008 Decision of the Ombudsman seeking for the reversal of the judgment finding him administratively liable for Immorality or Disgraceful and Immoral Conduct and for the dismissal of the case against him. Respondent, in the same motion, asked that the directive of the Ombudsman for the immediate implementation of the said decision be recalled pending resolution of the said motion, or his appeal in case he files one.5
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 an 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.
Moreover, Memorandum Circular No. 61, Series of 2006 dated 11 April 2006 of the Ombudsman reads:
xxxx
The filing of a motion for reconsideration or a petition for review before the Office of the Ombudsman doc s .not operate to stay the immediate implementation of the foregoing Ombudsman decisions, orders or resolutions.Only a Temporary Restraining Order (TRO) or a Writ of Preliminary Injunction, duly issued by a court of competent jurisdiction, stays the immediate implementation of the said Ombudsman decisions, orders or resolutions.Accordingly, the Regional Director of the Bureau of Local Government Finance, Regional Office No. X is hereby directed to IMMEDIATELY implement the penalty imposed against ELMER P ACURIBOT y MAGANA and promptly submit to this Office, within ten (10) days from receipt hereof, a Compliance Report, indicating the subject OMB case number.
Compliance is respectfully enjoined consistent with Sec. 3 (e) of R.A. No. 3019 (Anti-Graft and Corrupt Practices Act) and Sec. 15(3) of R.A. No. 6770 (Ombudsman Act of 1989).
WHEREFORE, premises considered, the petition is GRANTED. The directive for the immediate implementation of the nine (9) month suspension imposed against [respondent] Elmer M. Pacuribot, as embodied in public respondent's July 23, 2008 Decision, is SET ASIDE.The Court of Appeals likewise denied the Ombudsman's motion for reconsideration of the above decision in its Resolution dated July 12, 2010.
The Regional Director, Bureau of Local Government Finance, Department of Finance, Region X, Cagayan de Oro City, is hereby directed to recall Regional Office Special Personnel Order No. 015-2009 dated April 23, 2009, implementing the immediate suspension of petitioner, and to reinstate petitioner to his present position as Municipal Treasurer of El Salvador, Misamis Oriental, pending resolution of petitioner's motion for a partial consideration of public respondent's July 23, 2008 Decision finding petitioner guilty of Immorality or Disgraceful and Immoral Conduct.10
In his Comment12 filed on July 1, 2011, respondent asserts that the suspension imposed upon him by the Ombudsman should not be made immediately executory pending finality of his appeal pursuant to the Court's pronouncement in Samaniego on 2008. However, respondent also acknowledges that the Court already modified its ruling in Samaniego on 2010 whereby the Court overturned and corrected its earlier ruling that the Ombudsman's decision rendered in an administrative case is immediately executory pending appeal and may not be stayed by the filing of the appeal or the issuance of an injunctive writ. He also conceded that the issue before the Court may be deemed moot and academic as he had already served in full his nine months suspension from office and since then he was unable to report to work because his health condition deteriorated fast and became bedridden. Respondent urges the Court, nonetheless, to resolve the present petition in his favor, as well as for the benefit of those similarly situated, by reverting to and applying the ruling which the Court adopted in Samaniego on 2008 which he claims as more humane and in keeping with due process.V.
GROUND FOR THE ALLOWANCE OF THE PETITION
THE TWENTY-FIRST DIVISION OF THE COURT OF APPEALS, CAGAYAN DE ORO STATION, GRAVELY ERRED IN FINDING THAT PETITIONER COMMITTED GRAVE ABUSE OF DISCRETION AND IN SETTING ASIDE THE IMMEDIATE IMPLEMENTATION OF PETITIONER'S DECISION IN OMB CASE NO. OMB-M-A-07-029-B.VI.
DISCUSSION
- The subject decision of the Office of the Ombudsman is immediately executory pursuant to Section 7, Rule III of Administrative Order No. 07, as amended by Administrative Order No. 17[; and]
- With all due respect, the Honorable Court's ruling in the Samaniego case did not effectively divest the Office of the Ombudsman of its disciplinary and rule making powers.11
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:Since then, the Court has consistently applied the above-quoted ruling in a string of cases.23SEC. 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.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.
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. x x x.
In the case of In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of the DPWH, 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, upheld the resolution of the [Court of Appeals] denying Buencamino's application for preliminary injunction against the immediate implementation of the suspension order against him. The Court stated therein that the [Court of Appeals] 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. 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.
WHEREFORE, the second motion for partial reconsideration is hereby GRANTED. Our decision dated September 11, 2008 is MODIFIED insofar as it declared that the imposition of the penalty is stayed by the filing and pendency of CA-G.R. SP No. 89999. The decision of the Ombudsman is immediately executory pending appeal and may not be stayed by the filing of the appeal or the issuance of an injunctive writ.22 (Emphasis supplied, citations omitted.)
Endnotes:
* On official leave.
1 Rollo, pp. 35-42; penned by Associate Justice Jane Aurora C. Lantion with Associate Justices Romulo V. Borja and Edgardo T. Lloren.
2 Id. at 29-33.
3 Id. at 61-69.
4 Id. at 66-68.
5 Id. at 75-84.
6 Id. at 74.
7 Id. at 43-60.
8 586 Phil. 497 (2008).
9 Rollo, pp. 108-110.
10 Id. at 41.
11 Id. at 8-9 and 15.
12 Id. at 133-137.
13 Id. at 149-154.
14 Id. at 157-158.
15 Id. at 159-176.
16 Id. at 178.
17 Id. at 198-200.
18 Id. at 212-213.
19 Perez v. Abiera, 159-A Phil. 575, 580 (1975).
20 159 Phil. 417, 419 (1975).
21 646 Phil. 445, 449 (2010).
22 Id. at 448-451.
23 Ombudsman-Mindanao v: Ibrahim, 786 Phil. 221 (2 016); Department of the Interior and LocalĀ Government v. Gatuz, 771 Phil. 153 (2015); Office of the Ombudsman v. Valencerina, 739 Phil. 11 (2014); Office of the Ombudsman v. De Leon, 705 Phil. 26 (2013); Office of the Ombudsman v. Court of Appeals , 655 Phil. 541 (2011).