FIRST DIVISION
G.R. No. 239871, March 18, 2021
LYNNA G. CHUNG, Petitioner, v. OFFICE OF THE OMBUDSMAN AND OFFICE OF THE OMBUDSMAN-FIELD INVESTIGATION OFFICE, Respondents.
D E C I S I O N
CAGUIOA, J.:
This is a Petition for Certiorari1 (Petition) under Rule 65 of the 1997 Rules of Civil Procedure, with an application for a temporary restraining order and a writ of preliminary injunction, assailing the: (1) Joint Resolution2 dated March 14, 2018 of the Office of the Ombudsman (Ombudsman) in OMB-C-C-16-0055 and OMB-C-A-16-0046; and (2) its Order3 dated May 8, 2018 denying petitioner Lynna G. Chung's (petitioner) motion for partial reconsideration.
The assailed Joint Resolution and Order found probable cause to indict petitioner, former Manager of the Administrative and Finance Department of the Philippine National Railways (PNR), along with five other PNR officials, for violation of Section 3(e)4 of Republic Act No. (RA) 30195 in connection with the PNR's procurement of rail fastenings, clips and insulators from Pandrol Korea Limited (Pandrol Korea).
[(A) Item No. 1: e-AT20123 Concrete Sleeper Fastening Assembly
(1) Delivery No. 1: 30,000 sets, in the total price of US$1,155,000.00; deadline of delivery is 16 weeks after opening of LC; (2) Delivery No. 2: 60,000 sets, in the total price of US$2,310,000.00; deadline of delivery is 16 weeks after opening of LC; (3) Delivery No. 3: 50,000 sets, in the total price of US$1,925,000.00; deadline of delivery is 16 weeks after opening of LC; and (4) Delivery No. 4: 30,000 sets, in the total price of US$1,155,000.00; deadline of delivery is 16 weeks after opening of LC.
(B) Item No. 2: Rail Clips and Insulators
(1) Rail Clips: 50,000 pieces in the total price of US$175,000.00; deadline of delivery is 16 weeks after opening of LC; (2) Rail Insulators: 50,000 pieces, in the total price of US$50,000.00; deadline of delivery is 16 weeks after opening of LC.]
x x x
5. Payment Schedule
The payment shall be made to the Supplier as herein mentioned:
a) In general, the PURCHASER will pay the SUPPLIER the corresponding value of the number of sets of concrete sleeper fastening assembly (consisting of rail clips, rail insulators, rail pads and shoulders) to be delivered in accordance with the Delivery Schedule indicated in Item 6 below. The PURCHASER shall submit a Purchase Order for each delivery indicated in the Delivery Schedule. The Purchase Order will indicate the expected date of delivery of the GOODS. b) For each scheduled payment, an advance payment equivalent to fifteen percent (15%) of the Price of the delivery shall be paid to the SUPPLIER within ten (10) calendar days from receipt of the SUPPLIER of a Purchase Order from the PURCHASER, subject to the provision of Item 5(c) below. c) Before the advance payment is made, the SUPPLIER shall submit to the PURCHASER a Letter of Guarantee covering the advance payment issued by a reputable local or foreign bank acceptable to the PURCHASER. This Letter of Guarantee shall be released upon presentation to the PURCHASER of the original Bill of Lading and related documents of the particular shipment of the GOODS. d) The payment of the remaining eighty-five percent (85%) of the amount for each delivery shall be paid to the SUPPLIER upon presentation to the advisory bank of the following shipment documents: (1) Packing List; (2) Bill of Lading; (3) Inspection Certificate; (4) Commercial Invoice; (5) Authenticated Export Declaration; (6) Marine Insurance Policy: at least one hundred ten percent (110%) of the total contract value of shipment and shall cease thirty (30) days after arrival of GOODS at the warehouse designated by the PURCHASER.12
WHEREFORE, this Office finds probable cause to indict respondent Manuel D. Andal for two (2) counts of violation of Section 3 (e) of Republic Act No. 3019, and respondents Rafael G. Mosura, Jr., Edgardo R. Remonte, Jose P. Marayag, Constantino [R]. Dominguez, and Lynna G. Chung for one (1) count of violation of Section 3 (e) of Republic Act No. 3019. Let the corresponding Information be filed against them before the proper court.
The charge against respondents Michael T. Defensor, Dolores C. Aserre, Gerard L. Rabonza, Teodoro B. Cruz, Jr., Feroisa T. Concordia, Ernesto A. Nieva, Jaewoo Chung, and Andronica T. Roma for violation of Section 3 (e) of Republic Act No. 3019 is DISMISSED.
The charges against ALL respondents for violation of Section 7 (a) of Republic Act No. 6713 and Section 3 (g), (h), and (i) of Republic Act No. 3019 are DISMISSED.
The administrative charge for Grave Misconduct against respondents Dolores C. Aserre and Feroisa T. Concordia is DISMISSED.chanroblesvirtualawlibrary
SO ORDERED.24
For recommending the Direct Contracting to Pandrol Korea, respondent-PNR-BAC members Mosura, Jr., Remonte, Marayag, and Dominguez should be charged for violation of Section 3 (e) of R.A. No. 3019. They gave unwarranted benefits, advantage or preference to Pand[r]ol Korea in the discharge of their functions as PNR-BAC members through gross inexcusable negligence. As BAC members, they are expected to be knowledgeable of the procurement laws and should be judicious and meticulous in performing their functions; yet they failed to deliver on these expectations when they resorted to Direct Contracting with Pand[r]ol Korea without following the requirements set therefor under R.A. No. 9184, its IRR-A, and the GPM Volume 2 as discussed above. Respondent Lynna Chung cannot be charged for the offense as a member of the PNR-BAC since she had no participation in the decision to recommend the resort to Direct Contracting.33 (Emphasis and italics in the original; underscoring supplied)
x x x To establish a prima facie case against petitioner for violation of Sec. 3, par. (e), RA 3019, the prosecution must show not only the defects in the bidding procedure, a circumstance which we need not presently determine, but also the alleged evident bad faith, gross inexcusable negligence or manifest partiality of petitioner in affixing his signature on the purchase order and repeatedly endorsing the award earlier made by his subordinates despite his knowledge that the winning bidder did not offer the lowest price. Absent a well-grounded and reasonable belief that petitioner perpetrated these acts in the criminal manner he is accused of, there is no basis for declaring the existence of probable cause.
x x x
The instant case brings to the fore the importance of clearly differentiating between acts simply negligent and deeds grossly and inexcusably negligent punishable under Sec. 3, par. (e), of the Anti-Graft and Corrupt Practices Act. While we do not excuse petitioner's manner of reviewing the award of the supply of tomato paste in favor of Elias General Merchandising, whereby he cursorily perused the purchase order and readily affixed his signature upon it, since he could have checked the supporting documents more lengthily, it is our considered opinion that his actions were not of such nature and degree as to be considered brazen, flagrant and palpable to merit a criminal prosecution for violation of Sec. 3, par. (c), of RA 3019. To paraphrase Magsuci v. Sandiganbayan, petitioner might have indeed been lax and administratively remiss in placing too much reliance on the official documents and assessments of his subordinates, but for conspiracy of silence and inaction to exist it is essential that there must be patent and conscious criminal design, not merely inadvertence, under circumstances that would have pricked curiosity and prompted inquiries into the transaction because of obvious and definite defects in its execution and substance. To stress, there were no such patent and established flaws in the award made to Elias General Merchandising that would have made his silence tantamount to tacit approval of the irregularity.51
x x x [I]t must be emphasized that the instant case involves a finding of probable cause for a criminal case for violation of Section 3(e) of R.A. No. 3019, and not for violation of R.A. No. 9184. Hence, even granting that there may be violations of the applicable procurement laws, the same does not mean that the elements of violation of Section 3(e) of R.A. No. 3019 are already present as a matter of course. For there to be a violation under Section 3(e) of R.A. No. 3019 based on a breach of applicable procurement laws, one cannot solely rely on the mere fact that a violation of procurement laws has been committed. It must be shown that (1) the violation of procurement laws caused undue injury to any party or gave any private party unwarranted benefits, advantage or preference; and (2) the accused acted with evident bad faith, manifest partiality, or gross inexcusable negligence. x x x53 (Emphasis supplied)
Respondent Lynna Chung and private respondent Jaewoo Chung's failure to disclose their relationship does not result in any liability since the subject procurement was not made through public bidding. Section 47 of R.A. No. 9184 requires that "all bids shall be accompanied by a sworn affidavit of the bidder that it is not related to the head of the procuring entity by consanguinity or affinity up to the third civil degree." This provision, which also covers such a relationship between a BAC member and an officer of a bidder-corporation, does not apply to procurements by Direct Contracting — as in the instant case, albeit wrongly resorted to since no bidding is involved therein. Moreover, even if there appears to be a conflict of interest on the part of respondent Lynna Chung, it was not shown that she exerted influence in ensuring the award of the contract to Pandrol Korea, which her adopted son — private respondent Jaewoo Chung — represented as Manila Liaison Officer of Pandrol Limited.56 (Emphasis supplied)
Endnotes:
1Rollo, Vol. I, pp. 3-52.
2 Id. at 53-111. Penned by Graft Investigation and Prosecution Officer II John Paul P. Galang and approved by Ombudsman Conchita Carpio Morales.
3 Id. at 113-119.
4 SEC. 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
x x x
(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
5 ANTI-GRAFT AND CORRUPT PRACTICES ACT.
6 SECTION 50. Direct Contracting. —
Direct Contracting or single source procurement is a method of procurement of goods that does not require elaborate bidding documents. The supplier is simply asked to submit a price quotation or a pro-forma invoice together with the conditions of sale. The offer may be accepted immediately or after some negotiations. Direct contracting may be resorted to by concerned procuring entities under any of the following conditions:
a) Procurement of items of proprietary nature which can be obtained only from the proprietary source, i.e. when patents, trade secrets and copyrights prohibit others from manufacturing the same item; b) When the procurement of critical plant components from a specific manufacturer, supplier or distributor is a condition precedent to hold a contractor to guarantee its project performance, in accordance with the provisions of its contract; or c) Those sold by an exclusive dealer or manufacturer which does not have sub-dealers selling at lower prices and for which no suitable substitute can be obtained at more advantageous terms to the Government.
7 AN ACT PROVIDING FOR THE MODERNIZATION, STANDARDIZATION AND REGULATION OF THE PROCUREMENT ACTIVITIES OF THE GOVERNMENT AND FOR OTHER PURPOSES, otherwise known as the "GOVERNMENT PROCUREMENT REFORM ACT."
8Rollo, Vol. I, pp. 55-56, 92.
9 Id. at 55.
10 Id. at 92.
11 Id. at 56-57.
12 Id. at 57-58.
13 Id. at 132, 295-296.
14 Id. at 133, 300, 302.
15 Id. at 136, 310-311.
16 Id. at 120-171.
17 SEC. 3. Corrupt practices of public officers. – x x x
x x x
(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.
18 SEC. 3. Corrupt practices of public officers. – x x x
x x x
(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest.
19 SEC. 3. Corrupt practices of public officers. – x x x
x x x
(i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group.
20 SECTION 7. Prohibited Acts and Transactions. — In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful:
(a) Financial and material interest. — Public officials and employees shall not, directly or indirectly, have any financial or material interest in any transaction requiring the approval of their office.
x x x
21 AN ACT ESTABLISHING A CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES, TO UPHOLD THE TIME-HONORED PRINCIPLE OF PUBLIC OFFICE BEING A PUBLIC TRUST, GRANTING INCENTIVES AND REWARDS FOR EXEMPLARY SERVICE, ENUMERATING PROHIBITED ACTS AND TRANSACTIONS AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF AND FOR OTHER PURPOSES, OTHERWISE KNOWN AS THE "CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES."
22Rollo, Vol. I, p. 159.
23 Id. at 165.
24 Id. at 110-111.
25 Id. at 108-109.
26Rollo, Vol. II, pp. 1103-1120.
27 Id. at 1126-1159.
28 See rollo, Vol. I, p. 108.
29 Id. at 109.
30 The payment shall be made to the Supplier as herein mentioned:
x x x x b) For each scheduled payment, an advance payment equivalent to fifteen percent (15%) of the Price of the delivery shall be paid to the SUPPLIER within ten (10) calendar days from receipts of the SUPPLIER of a Purchase Order from the PURCHASER, subject to the provision of Item 5(c) below. x x x x d) The payment of the remaining eighty-five percent (85%) of the amount for each delivery shall be paid to the SUPPLIER upon presentation to the advisory bank of the following shipment documents: (1) Packing List; (2) Bill of Lading; (3) Inspection Certificate; (4) Commercial Invoice; (5) Authenticated Export Declaration; (6) Marine Insurance Policy x x x x
31 SECTION 42. Contract Implementation and Termination
x x x
42.5 Procuring entities may issue a letter of credit in favor of a local or foreign supplier; Provided that, no payment on the letter of credit shall be made until delivery and acceptance of the goods as certified to by the procuring entity in accordance with the delivery schedule provided for in the contract; Provided further, that, the cost for the opening of letter of credit shall be for the account of the local or foreign supplier and shall be so stated in the bidding documents.
32 In a Decision dated January 22, 2021 in SB-18-CRM-0511 and SB-18-CRM-0513, the Sandiganbayan found Andal guilty beyond reasonable doubt of two counts of violation of Section 3(e) of RA 3019. The threshold issue resolved by the Sandiganbayan in said cases was whether Andal was guilty of violation of Section 3(e) of RA 3019 for entering into contracts with Pandrol Korea and Nikka Trading through Direct Contracting. The Sandiganbayan neither discussed nor ruled on the authority given by Andal on the alleged irregular payments made to Pandrol Korea; accessed at < https://sb.judiciary.gov.ph/DECISIONS/2021/A_Crim_ SB-18-CRM-0511%20and%200513_People%20vs%20Andal_01_22_2021.pdf>.
33Rollo, Vol. I, p. 108.
34Rollo, Vol. II, pp. 1135-1136. It may as well be also pointed out that petitioner sent a similar letter to the manager of the PNB to debit the peso equivalent of $225,000.00 against a savings account upon opening of the LC in favor of Pandrol Korea for the purchase of 50,000 rail clips and 50,000 nylon insulators. See id. at 1138-1139.
35Rollo, Vol. I, p. 104.
36 Id. at 108-109.
37 See Reyes v. Office of the Ombudsman, G.R. No. 208243, June 5, 2017, 825 SCRA 436, 446-148 and Morales, Jr. v. Carpio-Morales, G.R. No. 208086, July 27, 2016, 798 SCRA 609, 623-624.
38 G.R. No. 239168, September 15, 2020.
39 Id. at 8.
40 See note 4.
41 See J. Caguioa, Concurring Opinion in Villarosa v. People, G.R. Nos. 233155-63, June 23, 2020, p. 6. Emphasis and underscoring in the original.
42Albert v. Sandiganbayan, G.R. No. 164015, February 26, 2009, 580 SCRA 279, 290.
43Sanchez v. People, G.R. No. 187340, August 14, 2013, 703 SCRA 586, 593.
44Rollo, Vol. II, pp. 1135-1138.
45 Id. at 1138.
46 Id. at 1138-1139.
47 G.R. No. 180264, September 25, 2019 (Unsigned Resolution). Rendered by the First Division, composed of Chief Justice Lucas P. Bersamin (on official leave) and Associate Justices Estela M. Perlas-Bernabe, Francis H. Jardeleza, Rosmari D. Carandang, and Rodil V. Zalameda (designated additional Member vice Associate Justice Alexander G. Gesmundo who took no part.
48 See rollo, Vol. I, p. 4.
49 Id. at 13-14.
50 G.R. No. 144784, September 3, 2002, 388 SCRA 307.
51 Id. at 327-329.
52 G.R. No. 238014, June 15, 2020.
53 Id. at 7-8.
54 Supra note 38, at 12.
55Rollo, Vol. I, pp. 108-309.
56 Id. at 102.
57 Id. at 110.
58 See J. Caguioa, Concurring Opinion in Villarosa v. People, supra note 41, at 16. Underscoring in the original.
59 Id. at 16-17.
60Rollo, Vol. I, p. 104.
61 See Principio v. Barrientos, G.R. No. 167025, December 19, 2005, 478 SCRA 639, 650-651.
62 Id. at 651. > > >DISSENTING OPINION
PERALTA, C.J.:
Petitioner Lynna G. Chung filed this petition for certiorari, under Rule 65 of the Rules of Court, assailing the Office of the Ombudsman's Joint Resolution dated March 14, 2018 in OMB-C-C-16-0055 and its Order dated May 8, 2018, which denied petitioner's motion for partial reconsideration. The Office of the Ombudsman found probable cause against petitioner and five other officials of the Philippine National Railways (PNR) for violation of Section 3(e) of Republic Act (R.A.) No. 3019.
Petitioner was charged with former PNR General Manager Manuel Andal for alleged irregularities in the payment to Pandrol Korea for the purchase of rail fastening system, rail clips and insulators through direct contracting. The Office of the Ombudsman found that Andal and petitioner "authorized the full payments to Pandrol Korea and the charging of the cost of the opening of LC to the account of the PNR in violation of the Payment Schedule, particularly paragraph 5 (b) and (d) thereof, as stated in the contract, and Section 42.5 of the IRR-A of R.A. No. 9184."
Petitioner alleges that: (1) she did not act with manifest partiality, evident bad faith or inexcusable negligence; (2) there were no irregularities in the payments to Pandrol Korea; (3) the mere opening of a letter of credit did not amount to payment; (4) the absence of a notice of disallowance by the Commission on Audit (COA) against the payments made to Pandrol Korea indicates that the payments were regular, necessary and lawful; and (5) she did not cause any undue injury to any party, including the government, or give any private party unwarranted benefits, advantage or preference.
The main issue is whether or not the Office of the Ombudsman gravely abused its discretion in finding probable cause that petitioner violated Section 3(e) of R.A. No. 3019.
Under Article XI, Section 13 of the 1987 Constitution, the Office of the Ombudsman has the duty to "[i]nvestigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient."
The Ombudsman Act of 1989 (R.A. No. 6770) likewise provides:Sec 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases.
The duty of the Ombudsman in the conduct of a preliminary investigation is to establish whether there exists probable cause to file an information in court against the accused.1 "Probable cause" has been defined as the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he/she was prosecuted.2 A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and there is enough reason to believe that it was committed by the accused.3 It need not be based on clear and convincing evidence of guilt, neither on evidence establishing absolute certainty of guilt.4 A finding of probable cause merely binds over the suspect to stand trial.5 It is not a pronouncement of guilt.6
In this case, the Office of the Ombudsman found probable cause that petitioner violated Section 3 (e) of R.A. No. 3019, viz.:Section 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
x x x
(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
The Office of the Ombudsman said that records showed that former General Manager Andal and petitioner facilitated the irregular release of payments to Pandrol Korea, thus:On complainant's allegation that respondents Andal and Lynna Chung facilitated the irregular release of payments to Pandrol Korea, records show that it is indeed the case. Respondents Andal and Lynna Chung authorized the full payments to Pandrol Korea and the charging of the cost of the opening of LC to the account of the PNR in violation of the Payment Schedule, particularly paragraph 5 (b) and (d) thereof, as stated in the contract and Sec. 42.5 of the IRR-A of R.A. No. 9184.
Respondent Andal's claim that he did not agree with the 15% advance payment because he wanted to protect the interest of the PNR is too arbitrary to be considered and is an admission of his violation of the sanctity of the contract. He cannot amend the terms of the contract without the consent of the PNR Board. His claim that he was protecting the interest of the PNR was belied by the fact that he ordered and approved the full payments to Pandrol Korea before the pre-requisite submission of shipment documents.
On respondent Lynna Chung's claims that "she was only 'directed'" by respondent Andal to effect payment to Pandrol Korea; that she "had no discretion in the matter but to authorize payment for Pandrol's rail fastening assemblies;" and that she "had no reason to doubt or withhold payment for Pandrol Korea," especially since the contract was supported by the BAC Resolution and the Board Resolution, these are all flimsy attempts to wash her hands of[f] the matter. Her office was not a mere stamp pad of the PNR General Manager, the PNR-BAC, or the PNR Board. As Manager of the Administrative and Finance Department, it was her duty to ensure that all payments of the PNR are supported by valid and original documents and are made according to the terms of the applicable contract. She had abandoned her duty by placing her signature on documents authorizing and releasing the payments to Pandrol Korea without verifying their conformity with the payment terms under the contract. Her relationship with private respondent Jaewoo Chung also becomes a factor in the aspect of the irregular payments to Pandrol Korea.7
Documents on record of full payment authorized by petitioner, without regard to the 15% advance payment and payment of the remaining 85% of the amount for each delivery stipulated in the payment schedule of the contract, are:
(1) Petitioner's letter8 dated June 8, 2009 addressed to the Manager of PVB to debit the peso equivalent of US$1,155,000.00 against PVB C/A No. 00501-00593-3 to cover payment to Pandrol Korea Limited for the importation of Pandrol rail fastening assembly. (2) Petitioner's letter9 dated February 23, 2010 addressed to the Manager of PNB to debit the peso equivalent of US$225,000.00 against PNB S/A 41-648-830001-5 upon opening of the LC in favor of Pandrol Korea for the purchase of 50,000 rail clips and 50,000 nylon insulators.
Petitioner's letter dated June 8, 2009 correlates with full payment for the first delivery of 30,000 sets of e-AT20123 Concrete Sleeper Fastening Assembly in the total price of US$1,155,000.00 per the contract between PNR and Pandrol Korea. While petitioner's letter dated February 23, 2010 correlates with full payment for the 50 pieces of rail clips worth US$175,000.00 and 50 pieces of rail insulators worth US$50,000.00 or a total price of US$225,000.00.
The said documents support the finding of the Office of the Ombudsman that petitioner authorized the full payments to Pandrol Korea, without observing the 15% advance payment and thereafter payment of the remaining 85% of the amount for each delivery, in violation of the Payment Schedule, particularly paragraph 5 (b) and (d), viz.:
- Payment Schedule
The payment shall be made to the Supplier as herein mentioned:
x x x x
b) For each scheduled payment, an advance payment equivalent to fifteen percent (15%) of the Price of the delivery shall be paid to the SUPPLIER within ten (10) calendar days from receipt by the SUPPLIER of a Purchase Order from the PURCHASER, subject to the provision of Item 5 (c) below. x x x x d) The payment of the remaining eighty-five percent (85%) of the amount for each delivery shall be paid to the SUPPLIER upon presentation to the advisory bank of the following shipment documents: (1) Packing List; (2) Bill of Lading; (3) Inspection Certificate; (4) Commercial Invoice; (5) Authenticated Export Declaration; (6) Marine Insurance Policy: at least one hundred ten percent (110%) of the total contract value of shipment and shall cease thirty (30) days after arrival of GOODS at the warehouse designated by the PURCHASER.10
Petitioner asserts that the said authorization letters addressed to PYB and PNB to debit against PNR's account the peso equivalent of US$1,155,000.00 and US$225,000.00, respectively, to cover (full) payment of the items ordered were necessary for the opening of the Letters of Credit as required in the contract and in obedience to the directive of her superior, General Manager Andal. She also argues that the mere opening of a letter of credit did not amount to payment.
It can be observed that the said letters of petitioner instructing PVB and PNB to debit PNR's account in the amount of US$1,155,000.00 and US$225,000.00, respectively, were the total price of the items ordered, and the said sums of money were for payment of the items ordered without indicating that payment should be in accordance with the payment schedule in the contract requiring 15% advance payment and payment of the remaining 85% of the amount for each delivery upon compliance with the prerequisites for payment.
Petitioner's letters dated June 8, 2009 and February 23, 2010 did not merely authorize the opening of a letter of credit because her letters clearly state that the debit of the amounts were to cover (full) payment of the goods purchased from Pandrol Korea. Moreover, it was General Manager Andal who applied for a letter of credit on June 2, 2009 covering the shipment of the Pandrol rail fastening assembly in the amount of US$1,155,000.00.11 The disbursement of the funds and terms of the letter of credit depended on the authorization for payment by Andal and petitioner based on the contract between PNR and Pandrol Korea.
Thus, even if the debit of the said amounts on PNR's account was necessary to fund the letter of credit earlier applied for by Andal for the beneficiary Pandrol Korea, still petitioner authorized full payment of the goods without regard to payment in accordance with the terms of the contract: 15% advance payment and payment of the remaining 85% of the amount for each delivery upon presentation of the required shipping documents. The transmission12 of the issue of documentary credit sent by PVB to Wachovia Bank, Seoul in favor of the beneficiary, Pandrol Korea, authorized full payment, as it was up to the amount of US$1,155,000.00 (which reflects the authorization letter dated June 8, 2009 of petitioner), for the first delivery of 30,000 sets of Pandrol rail fastening assembly upon presentation of the specified shipping documents to the advisory bank. There is no evidence on record that advance payment of 15% was made. Thus, the Office of the Ombudsman is correct in stating that General Manager Andai and petitioner authorized full payment to Pandrol Korea, which was not in accordance with the terms of the contract as they did not observe the 15% advance payment and payment of the remaining balance upon presentation to the advisory bank of the required shipping documents. It was also observed that in the aforementioned transmission, two required shipment documents in the contract, namely, the Inspection Certificate and Authenticated Export Declaration, were not included among the documents required for presentation to the advisory bank for payment of the 30,000 sets of Pandrol rail fastening system.
As stated by the Office of the Ombudsman, as Manager of the Administrative and Finance Department, it was petitioner's duty to ensure that all payments of the PNR are supported by valid and original documents and are made according to the terms of the applicable contract. Why did petitioner fail to point out to Andal that the contract calls for 15% advance payment, and then 85% payment upon presentation of the required shipping documents? It is noted that in a subsequent purchase of 40,000 sets of Pandrol rail fastening system per Purchase Order13 dated January 22, 2015, the officers of PNR, who were no longer Andal and petitioner, observed the 15% advance payment in accordance with the contract dated May 21, 2009.
In regard to petitioner's argument that the absence of a notice of disallowance by the Commission on Audit against the payments made to Pandrol Korea indicates that the payments were regular, necessary and lawful, respondents, in their Comment, aptly cited Dimayuga v. Office of the Ombudsman,14 which held that "a finding of probable cause does not derive its veracity from the findings of the COA, but from the independent determination of the Ombudsman."
As a general rule, the Court does not interfere with the Ombudsman's determination of the existence or absence of probable cause.15 A finding of probable cause is a finding of fact which is generally not reviewable by this Court.16 As cited in a long line of cases, this Court has pronounced that it cannot pass upon the sufficiency or insufficiency of evidence to determine the existence of probable cause.17 The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well.18 If it were otherwise, this Court will be clogged with an innumerable list of cases assailing investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, to determine if there is probable cause.19
Only where there is a clear case of grave abuse of discretion by the Ombudsman will this Court interfere with the Ombudsman's findings of probable cause.20 By "grave abuse of discretion" is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction.21 It has been held that abuse of discretion alone is not sufficient, but that the abuse must be so grave, as where the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined or to act at all, in contemplation of law.22 For certiorari to lie, there must be a capricious, arbitrary and whimsical exercise of power.23 It is absent in this case.
The validity and merits of petitioner's defense and evidence submitted to this Court are best ventilated before the Sandiganbayan where a case has been filed against petitioner. To stress, this Court is not a trier of facts. Petitioner stated in her Reply24 that her case25 in the Sandiganbayan has been consolidated with three other cases26 involving five other defendants. It can be assumed that the Sandiganbayan has already received and reviewed the evidence of the parties in this case and is ready with its decision, considering that it has promulgated its decision on the criminal cases27 against General Manager Manuel Andal on January 22, 2021.
Accordingly, there being no grave abuse of discretion on the part of the Office of the Ombudsman, I vote to dismiss the petition.Endnotes:
1Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, (Resolution), 603 Phil. 18, 35 (2009).
2Galario v. Office of the Ombudsman Mindanao, 554 Phil. 86, 100-101 (2007), citing Raro v. Sandiganbayan, 390 Phil. 917, 945-946 (2000).
3Id.
4Id.
5Id.
6Id.
7Rollo, Vol. I, pp. 102-104.
8Id. at 296.
9Id. at 311.
10Id. at 271.
11Id. at 275.
12Id at 277.
13Id. at 337.
14 528 Phil. 42, 50 (2006).
15Galario v. Office of the Ombudsman, supra note 2 at 102.
16Id.
17Id. at 103.
18Id.
19Id.
20Id. at 102.
21Imutan v. Court of Appeals, 190 Phil. 233 (1981).
22Id.
23Id.
24Rollo, Vol. II. (unpaginated)
25 SB-18-CRM-0512.
26 SB-18-CRM-0510; SB-18-CRM-0511; and SB-18-CRM-0513.
27 SB-18-CRM-0511 and SB-18-CRM-0513.
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