Pub Digest12

7/30/2019 Pub Digest12

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Rubenecia v CSC

Facts:

-Teachers of Catarman National HS filed before MSPB administrative complaint against petitioner Rubenecia,the School Principal: >dishonesty >nepotism >oppression >violation of Civil Service Rules*MPSB investigation: charged Rubenecia, required him to answer. Rubenecia did not file answer, requested

instead to be furnished with copies of the documents submitted by complainants. CSC Regional Directorinvited him to visit their office to identify and pick up the document that he might need but he deferred,saying he still had enrollment problems. Later, CSC Regional Office reiterated that he answer but he reiteratedrequest that he be provided with copies of supporting documents.

-hearing scheduled but complainants did not appear, nor did he file his answer though he was there. On thesame day, Regional director issued order that the case was deemed submitted for resolution on the basis ofthe documents filed (and hellurh, the only documents with CSC Regional Office are those of the complainants)-Rubenecia wrote to Chairman of CSC for dismissal of his-Regional Director submitted to MSPB the investigation report but before MSPB could render a decision, CSCissued RESOLUTION 93-2387 which provided, among other things, thatcases then pending before the MSPBwere to be elevated to the Commission for decision . In accordance with the Resolution, Rubenecias case waselevated to CSC.

*CSC: GUILTY, dismissed from service. MR (lack of jurisdiction), denied

"I. VIOLATION OF CIVIL SERVICE RULES AND REGULATIONSThe records show that Rubenecia committed the said offense. He himself admitted that he did not accomplishhis DTR but this was upon the suggestion of the Administrative Officer. Rubenecia cannot use as an excuse thealleged suggestion of an Administrative Officer. As the principal of a national high School, he is expected toknow the basic civil service law, rules and regulations.

II. DISHONESTYThe Commission finds Rubenecia liable. He was charged for misrepresenting that he was on 'Official Travel' toBaguio City to attend a three-week seminar and making it appear in his CSC Form No. 7 for the month ofOctober 1988 that he has a perfect attendance for that month. Rubenecia in order to rebut the same simplyreiterated previous allegation that he attended the SEDP Training in Baguio City during the questioned

months without even an attempt on his part to adduce evidence documentary or testimonial that would attestto the truth of his allegation that he was indeed in Baguio during those weeks for training purposes. A mereallegation cannot obviously prevail over a more direct and positive statement of Celedonio Layon, SchoolDivision Superintendent, Division of Northern Samar, when the latter certified that he had no officialknowledge of the alleged 'official travel' of Rubenecia. Moreover, verification with the Bureau of SecondarySchools reveals that no training seminar for school principal was conducted by DECS during that time. It wasalso proven by records that he caused one Mrs. Cecilia Vestra to render service as Secondary School Teacherfrom January 19, 1990 to august 30, 1991 without any duly issued appointment by the appointing authority.

III. NEPOTISMWith respect to the charge of Nepotism, Rubenecia alleged that he is not the appointing authority with regardto the appointment of his brother-in-law as Utilityman but merely a recommending authority. With thisstatement, the commission finds Rubenecia guilty. it should be noted that under the provision of Sec. 59, of

the 1987 Administrative Code, the recommending authority is also prohibited from recommending theappointment to non-teaching position of his relatives within the prohibited degree.

IV. OPPRESSIONRubenecia is also guilty of Oppression. He did not give on time the money benefits due to Ms. Leah Rebadullaand Mr. Rolando Tafalla, both Secondary Teachers of CNHS, specifically their salary differentials for July toDecember 1987, their salaries for the month of May and half of June 1988, their proportional vacation salariesfor the semester of 1987-1988, and the salary of Mr. Tafalla, for the month of June, 1987. Rubenecia did noteven attempt to present countervailing evidence. Without being specifically denied, they are deemedadmitted by Rubenecia.


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V. INSUBORDINATIONHe is not liable for Insubordination arising from his alleged refusal to obey the 'Detail Order' by filing a sickleave and vacation leave successively. The records show that the two applications for leave filed by Rubeneciawere duly approved by proper official, hence it cannot be considered an act of Insubordination on the part ofRubenecia when he incurred absences based on an approved application for leave of absence. Rubenecia is

therefore found guilty of Dishonesty, Nepotism, Oppression and Violations of Civil Service Rules andRegulations.

ISSUES(1) WON the CSC had authority to issue its Resolution No. 93-2387 and assume jurisdiction over theadministrative case against petitioner; and(2) Whether or not petitioner had been accorded due process in connection with rendition of CSC ResolutionNo. 94-0533 finding him guilty and ordering his dismissal from the service.

HELD(1)YES it has authority to issue the said resolution and YES it has jurisdiction over the administrative

case

RUBENECIA: Since MSPB was a creation of law, it could only be abolished by law and not by CSC

the questioned resolution in sum does the following: 1. decision in administrative cases appealable to the Commission pursuant to Section 47 of the present CivilService Law may now be appealed directly to the Commission itself and not to the MSPB.2. Administrative cases already pending on appealbefore the MSPB or previously brought directly to theMSPB, at the time of the issuance of Resolution No. 93-2387, were required to be elevated to the Commissionfor final resolution. The functions of the MSPB relating to the determination of administrative disciplinarycases were, in other words, re-allocated to the Commission itself.

WHY RELOCATE: to "streamline the operation of the CSC" which in turn required the "simplication ofsystems, cutting of red tape and elimination of [an] unnecessary bureaucratic layer." The previous proceduremade it difficult for cases to be finally resolved within a reasonable period of time. The change, theretofore,was moved by the quite legitimate objective of simplifying the course that administrative disciplinary cases,like those involving petitioner Rubenecia, must take. We consider that petitioner Rubenecia had no vested

right to a two-step administrative appeal procedure within the Commission, that is, appeal to an office of theCommission, the MSPB, and thereafter a second appeal to the Civil Service Commission itself (i.e., theChairman and the two (2) Commissioners of the Civil Service Commission), a procedure which mostfrequently consumed a prolonged period of time.

>>>We note also that Resolution No. 93-2387 did notpurport to abolish the MSPB nor to effect thetermination of the relationship of public employment between the Commission and any of its officers oremployees. At all events, even if Resolution No. 93-2387 had purported to do so, petitioner Rubenecia, whodoes not claim to be an officer or employee of the MSPB, has no personality or standing to contest suchtermination of public employment.>>>he cannot argue that he was not notified that his case was elevated to CSC because (a) CSC Resolution 93-2387did not require individual written notice sent by mail to parties in administrative cases pendingbefore the MSPB; (b) CSC Resolution 93-2387 was published in the Manila Standard so it would be deemed

substantially complied; and (c) it was Rubenecia himself who insisted on pleading before the Commissioner(he filed MTD before commissioner and not before MSPB)

History of the Merit System Protection Board - PD 1409 created in the CSC the Merit Systems Board and gave it power to hear and decide administrativecases. If the Board orders the removal of the public officer, it would be subject to automatic review of the CSC.All other decisions of the Board are subject to appeal to the CSC-1987 Admin Code re-created the Merit System Board as Merit System Protection Board (MSPB) which wasintended to be an office of the Commission like any other 13 offices in the CSC. MSPB was made a part of the


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internal structure and organization of the CSC and thus a proper subject of organizational change which CSCis authorized to undertake under SECTION 17 of the CIVIL SERVICE LAW.

(2) YES

Due Process = Notice + Opportunity to be heardNOTICE: Formal charge which contained the essence of the complaint and the documents in support thereof

that had been furnished to Rubenecia + testimony of the principal witnesses against him given during thepreliminary hearing.ON THE NONFURNISH OF SUPPORTING DOCUMENTS: he was given the opportunity to obtain thosedocuments but he did not avail of it + he sent a formal letter-answer to CSC Chair controverting the chargesagainst him and submitted voluminous documents in support of his claim of innocence.MR CURED WHATEVER PROCEDURAL DUE PROCESS DEFECT: MR gave him opportunity to be heardON FINDINGS OF THE CSC: The settled rule in our jurisdiction is that the finding of fact of an administrativeagency must be respected, so long as such findings of fact are supported by substantial evidence, even if suchevidence might not be overwhelming or even preponderant. It is not the task of an appellate court, like thisCourt, to weigh once more the evidence submitted before the administrative body and to substitute its ownjudgment for that of the administrative agency in respect of sufficiency of evidence. In the present case, inany event, after examination of the record of this case, we conclude that the decision of the Civil ServiceCommission finding Rubenecia guilty of the administrative charges prepared against him, is supported by

substantial evidence.

Quimbo v Gervacio

Facts:

-Quimbo, the Provincial Engineer of Samar, was administratively charged for HARASSMENT ANDOPPRESSION by Padoan, a general foreman who was detailed to the Motor Pool Division, ProvincialEngineering by then Prov. Gov. Quimbo was placed under preventive suspension w/o pay to commence uponreceipt of the order and until such time that it is lifted but in no case beyond 6m. He began serving it on March18, 1998 but it was lifted April 27, 1998 after presenting 2 witnesses on direct examination.

*OFFICE OF DEPUTY OMBUDSMAN: GUILTY of OPPRESSION, suspended from office for 8 months w/o pay.Approved by Ombudsman. MR DENIED. Elevated to CA

*CA: GUILTY OF SIMPLE MISCONDUCT, suspension of 2 months w/o pay.-CA deci became final so Ombudsman ordered Provincial Governor its implementation. Quimbo filedMR/Motion for modification of said order, calling to attention the fact that he was on preventive suspensionfrom March 18 to June 1, 1998 (so in effect, he wanted his 2m17d suspension previously served to be creditedfor his penalty, thus he wont serve it anymore)-Provincial Governor sought clarification w/Ombudsman. *Ombudsman clarified that since preventivesuspensionis not a penalty, but a preliminary step in the investigation. If investigated then found guilty,imposition of penalty warranted. Quimbo appealed to CA.*CA: dismiss petition. AFFIRM OMBUDSMAN

ISSUE: WON the preventive suspension should be credited for his penalty

HELD: NO. Preventive suspension is not a penalty. Not being a penalty, the period within which one is

under preventive suspension is not considered part of the actual penalty of suspension.-this is EXPRESSLY PROVIDED UNDER SEC25, RULE XIV:SEC. 25. The period within which a public officer or employee charged is placed under preventivesuspensionshall not be considered part of the actual penalty of suspension imposed upon the employeefound guilty.

NATURE OF PREVENTIVE SUSPENSION: merely a preventive measure, a preliminary step in anadministrative investigation-purpose: prevent accused from using his position and the powers and prerogatives of his office to influencepotential witnesses or tamper w/ records w/c may be vital in the prosecution of the case against him


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-not a penalty: RULE XIV, Section 21, OMNIBUS RULES IMPLEMENTING BOOK V OF THE ADMIN CODEON NON-APPLICATION OF GLORIA: It involves 2 kinds of preventive suspension which is relevant indetermining>the entitlement of the employee to compensation during the period of suspension> the crediting of preventive suspension to the final penalty of suspension

PENDING INVESTIGATION PENDING APPEAL(Section 51 of the Civil Service Law [Book V, Title I,Subtitle A of the Administrative Code of 1987])

if the penalty imposed by the disciplining authority issuspension or dismissal and, after review, therespondent is exonerated (Section 47(4) of The CivilService Law)

Not a penalty but only a means of enabling thedisciplining authority to conduct an unhamperedinvestigation

A penalty, BUT:*if subsequently exonerated: considered underpreventive suspension, should be reinstated w/ fullpay for period of suspension*if conviction affirmed: period of suspensionbecomes part of final penalty of suspension (socredited)

>>>as QUIMBOs suspension ispending investigation,IT CANNOT BE CREDITED TO FORM PART OF THE

FINAL PENALTY OF SUSPENSION

NON-APPLICATION OF CREDITING IN CRIMINAL LAW: Not only are they distinct in the objective orpurpose, or in their nature as preventive imprisonment involves restriction of personal liberties which is notthe case with preventive suspension; the respective laws covering them are explicit.NONAPPLICATION OF EQUITY: law expressly provides that rules on crediting of preventive suspension tofinal penalty of suspension is not allowed.

Ombudsman v Pelino

Facts:

The Field Investigation Office (FIO) of the Office of the Ombudsman, through its Graft Investigation andProsecution Officer Maria Olivia Elena A. Roxas, filed a complaint against respondent and Joseph Albert Pelio

Cuaki for (a) 18 counts of perjury in her SALN, (b) RA 6713, (c) Dishonesty and grave misconduct, and (d) RA1379.

Pelio is the head of the BIR Large Taxpayers Document Processing and Quali ty Assurance Division, whileCuaki is respondents son. The complaint charges respondent with illegally acquiring and accumulating thefollowing property and investments, as well as incurring expenses and liabilities grossly disproportionate toher income and earning capacity as a government employee, and for not disclosing the same in her annualSALNs several real and personal properties. Moreover, she omitted to declare in her Personal Data Shee thatshe has a son. On the contrary, she claims that she is single.

Respondent filed a Sworn Explanation detailing her defenses to the accusations against her. The Ombudsmanplaced respondent under preventive suspension for six months and directed her to file her counter-affidavit.Deputy Ombudsman for Luzon Victor C. Fernandez found that the evidence of guilt is strong that PELIO

committed acts of dishonesty and grave misconduct which would warrant her removal from office if proved.

Respondent filed an Urgent Motion to Lift Order of Preventive Suspension arguing that the charges were notsubstantiated, that the alleged acts of misconduct do not have a direct relation to the performance of herfunctions, that the charge is a ground for criminal, not administrative prosecution. Before her motion to liftorder of preventive suspension and the supplemental motion thereto could be resolved, however, PELIOelevated the matter to the CA via a petition for certiorari with application for the issuance of a temporaryrestraining order and/or writ of preliminary injunction against the petitioners claiming grave abuse of


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discretion in her being placed under preventive suspension while the charges against her were pending. TheCA granted the TRO.

Issue: WON the order of preventive suspension was properHeld: Yes

Ratio:However, there is a need to make a determination as to whether the Ombudsman acted with grave abuse ofdiscretion in issuing the assailed order of preventive suspension. To do this, we must resolve the issue ofwhether the evidence of PELIOs guilt is strong as to justify the issuance of a preventive suspension orderagainst her.

RA 6770 or the Ombudsman Act of 1989: In preventively suspending a public officer or employee pendinginvestigation, the law does not require that all the four requirements should concur. What is required ismerely a showing that the evidence of guilt is strong; and that any of the three (to wit: (a) the charge involvesdishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charge warrantsremoval from the service; or (c) the respondent's continued stay in office may prejudice the case filed againsthim), is present. The immediate issuance of a preventive suspension order is required to prevent the subjectof the suspension from committing further irregularities. PELIO is charged with eighteen (18) counts of

perjury under Article 183 of the Revised Penal Code; violation of R.A. No. 6713, 8 in relation to 11 thereof;dishonesty and grave misconduct; and violation of R.A. No. 1379. Thes e are all in relation to PELIOs failureto disclose material information in her Personal Data Sheet and Statement of Assets, Liabilities and Net Worth(SALN).

In her counter-affidavit, PELIO admits such non-disclosure but claims that her alleged unexplained wealthcame from, among others, a certain Henry Go, former Vice Chairman of Universal Robina Corporation, who isthe biological father of CUAKI. She claims that in 1985, Alfonso brought CUAKI then a baby to her home,explaining to her that the boys father was one of his business buddies and that his mother had abandonedhim at the hospital. Thereafter, Alfonso had caused the boy to be registered as Joseph Albert Pelio Cuaki;that in the boys birth certificate, it was made to appear that s he and Alfonso were married and the boy wastheir son; but that she never signed the said birth certificate and that her signature which appears therein is aforgery. She claims that she was shocked, alarmed and angry at Alfonso for what he did, and she insisted

that he rectify the childs birth certificate, but that before he could do so, Alfonso died. Apparently, nothingwas ever done to correct the alleged falsified birth papers of the boy, despite the fact that he grew up withPELIO, who learnedto love and treat (CUAKI) as (her) own flesh and blood, nurtured him every day of hislife and watched him grow as a proud mother would.Rosa Cuaki, Alfonsos wife, allegedly could not believethat her husband could have had a child outside of their marriage, so she filed a criminal complaint againstPELIO for falsification of CUAKIs birth certificate which was dismissed by the Secretary of the Departmentof Justice.

We have held time and again that what the law requires is merely that, first, the evidence of guilt must bestrong; and second, that at least any one of the three circumstances (1) that the charge involves dishonesty,oppression or grave misconduct or neglect in the performance of duty; (2) that the charge warrants removalfrom the service; or (3) that the respondent's continued stay in office may prejudice the case filed against him is present.

In PELIOs case, we find that evidence of her guilt is strong. The evidence does not show that CUAKI is Gosson, such that it could be believed that PELIO, who claims to act as the de facto guardian and administratorof the boys properties, received a total of P11,640,000.00 from 1985 up to 2000 as financial support from Go,which she used to purchase some of the properties in question. Alfonso and PELIO are CUAKIs parents, asthe latters certificate of live birth shows. Although the same has been denied by PELIO herself, who claimsthat CUAKIs birth certificate is a forged document, the said document subsists and has not been duly void ed.Being a public document, CUAKIs certificate of live birth offers prima facie evidence of filiation and a highdegree of proof is needed to overthrow the presumption of truth contained therein. This is pursuant to therule that entries in official records made in the performance of his duty by a public officer are prima facie


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evidence of the facts therein stated. The evidentiary nature of such document must, therefore, be sustained inthe absence of strong, complete and conclusive proof of its falsity or nullity.

This being the case, it follows that we cannot, under the law, consider PELIOs claim that she used theamount of P11,640,000.00 which she allegedly received from Go (which was intended for CUAKI) to acquirethe Valle Verde (Pasig City) residence, the San Juan condominium, the house and lot in Tagaytay City, the

Isuzu Fuego pickup and the Toyota RAV4, as well as to finance her yearly trips abroad with CUAKI. PELIOclaims she is not CUAKIs biological parent; and that in 1983, or two years before CUAKI was born, she hadher uterus surgically removed. She blames Alfonso for obtaining the boys fake birth papers wherein she isdeclared as the boys mother. This is, however, a matter of defense which is appropriately threshed outduring trial. As against her self-serving denials, the boys certificate of live birth prevails.

Even granting that the claim of forgery is true and that she had nothing to do with the commission thereof, aninquiry should be made into the extent of PELIOs participation in the fraud, taking into consideration thatall these years, she may have condoned the use of these documents, or herself used them. During their tripsabroad, CUAKI who was then only a minor would not have been allowed by the immigration authorities totravel along with PELIO without the requisite passport and written permission from CUAKIs real parents,whom PELIO does not even know at a ll, as the evidence suggests. Even assuming that CUAKIs real parentswere known to her, they would not have been able to give their written consent just the same, because

CUAKIs birth papers declare PELIO and Alfonso as his parents. In such event, PELI O may be criminallycharged with use of falsified documents, as well as administratively, for dishonesty and grave misconduct.Finally, CUAKIs birth certificate constitutes proof that PELIO, who was working with the BIR, maintained anadulterous relationship with Alfonso, who was married to Rosa Cuaki. In addition to the accusations madeagainst her, PELIO should be charged with immorality as well.

There likewise appears to be strong evidence to suggest that, apart from failing to disclose the subjectproperties in her SALNs, PELIO is harboring unexplained wealth as well, considering the sheer number ofreal and personal properties acquired by her in her name and in that of CUAKI. During the period 1993 to1994, PELIO and CUAKI took four (4) and two (2) foreign trips each, respectively, and PELIO acquired noless than four (4) sizable pieces of real property: a 578-square meter residential lot in Tanza, Cavite (TCT408006); a 1.58 hectare lot in Naic, Cavite (TCT 874663); a 2.09 hectare lot in Naic, Cavite (TCT 874664); anda 4,475-square meter house and lot in Tagaytay City. Yet in her 1993-1994 SALNs,[50] she did not declare

any cash in bank; nor is there any indication in her previous (1986-1992) SALNs[51] that she had propertywhich she may have sold (and which is no longer declared in her 1993 and 1994 SALNs) or any businessinterest from which to draw funds to be able to afford to acquire the said four pieces of property; nor did herliabilities increase (to show, for example, that she took a loan for the purchase of these properties); nor didshe inherit said properties; nor was she a donee thereof, as the evidence shows that she appears to haveacquired all four by purchase totaling, per purchase price and estimate of the FIO based on market value,P1,063,508.00. In 1993, PELIOs annual salary was only P56,522.00; and, for 1994, P65,832.00. Thediscrepancy is too obvious to ignore.

Indeed, PELIOs admissions, coupled with the evidence on record, have farther-reaching implications thanthe appellate court was willing to consider. The Ombudsman is not guilty of abuse of discretion in placingPELIO under preventive suspension because there is enough strong evidence to engender the belief that sheis guilty of the accusations lodged against her. Besides, the admissions contained in her defense leave us with

more questions than answers, and may have opened a Pandoras box worthy of further serious inquiry by thepetitioners.

Thus, we do not subscribe to PELIO's argument in her Comment, borrowed from the appellate courtspronouncement, that the FIO complaint, apart from alleging non-disclosure of material facts in the SALNs, didnot show any other positive or specific unlawful acts on her part that will support the charge of dishonesty,grave misconduct, lack of integrity or untrustworthiness. Her failure to disclose in her personal data sheetand her SALNs that CUAKI was her son constitutes an act of deception and dishonesty, in that by notdisclosing the fact, she is effectively shielding herself from a possible charge of immorality or falsification.Moreover, the non-disclosure of a substantial number of properties opens her to a charge of harboring


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unexplained wealth, since the acquisition of the undisclosed properties was manifestly out of proportion toher salary as earlier on demonstrated herein.

Considering PELIOs high rank and delicate office, the gravity of the charges against her dishonesty, gravemisconduct, accumulation of unexplained wealth and perjury, and the possibility of filing other charges as aresult of her admissions in her pleadings, such as immorality, falsification and/or use of falsified documents

which merit dismissal from service as the corresponding penalty, it may not be said that the Office of theOmbudsman exercised its discretion in a despotic and arbitrary manner; preventive suspension was anoption which it could properly exercise under the circumstances.

There is nothing improper in suspending an officer pending his investigation and before the charges againsthim are heard. The immediate issuance of such order is required to prevent the subject of the suspensionfrom committing further irregularities. Such prompt action, moreover, is in consonance with 15 of R.A. No.6770 which exhorts the Ombudsman to give priority to complaints filed against high ranking governmentofficials and/or those occupying supervisory positions, those involving grave offenses as well as thoseinvolving large sums of money and/or properties.

Ultimately, the Ombudsman is given the discretion to decide when the evidence of guilt is strong. This fact isbolstered by 24 of R.A. No. 6770, which expressly left such determination of guilt to the judgment of the

Ombudsman on the basis of the administrative complaint. In the instant case, the order of preventivesuspension was issued only after PELIO filed a sworn explanation detailing her defenses to the chargesmade against her. It may thus be said that the order for her preventive suspension was issued afterassessment of her defenses. Being so, we find no abuse, much less grave abuse of the exercise of thisdiscretion.

Gobenciong v CA

Facts:

Dr. Pedro Gobenciong was Administrative Officer IV in Eastern Visayas Regional Medical Center (thehospital), a public hospital. In 1996, the hospital planned to buy a hemoanalyzer/particle counter. A publicbidding was had, where Alvez Commerical, Inc. won. A Purchase Order was issued for 2 nebulizers and 1particle counter.

The nebulizers and hemoanalyzers appeared to have been delivered, as per: Certification of Acceptancesigned by Engr. Jocano and Supply Officer Babula. Sales Invoice signed by Supply Officer Babulaacknowledging receipt of the goods in good condidion. COA Inspection Report certified by Engr. Jocano andGobenciong attesting that the goods had been inspected as to quality and quantity. As it turned out, thehemoanalyzer was never actually delivered.

Dr. Flora dela Pena, head of the hospitals Laboratory Unit, filed an administrative complaint with the Office ofthe Ombudsman-Visayas (Ombudsman) charging Gobenciong, Babula, Jocano, and 3 other persons withFalsification of Public Document and Misconduct. Upon Dela Penas motion, Ombdusman placed respondents,save one, under a six-month preventive suspension and directed the proper DOH Officer to immediatelyimplement the Order. Gobenciong sought reconsideration of this order, but without awaiting theOmbudsmans action thereon, Gobenciong filed a petition for certiorari in the CA.

CA denied Gobenciongs petition for certiorari on the strength of Sec. 24 in relation to Sec. 27 of RA 6770,which expressly empower the Ombudsman, under defined conditions, to preventively suspend, for amaximum period of six months, all but three categories of public officials and employees under investigationby his office and to direct the immediate implementation of the corresponding suspension order.Ombudsman eventually found Gobenciong, et al guilty of Conduct Grossly Prejudicial to the Best Interest ofthe Service and imposed a penalty of 1 year suspension without pay.

Gobenciong filed a motion for reconsideration, which Ombudsman denied, prompting Gobenciong to appealto the CA. CA partially granted Gobenciongs appeal and set aside the Ombudsmans Decision in insofar as it


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imposed the penalty of 1 year suspension without pay. Relying on Tapiador v Office of the Ombudsman, it heldthat the disciplinary power of the Ombudsman in administrative cases is limited only to recommending to thedisciplining authority the appropriate penalty to be meted out.

Issues:

1. Whether a preventive suspension ordered by the Ombudsman is immediately executory, notwithstandinga pending motion to reconsider the corresponding order?2. Whether the disciplinary power of the Ombudsman is merely recommendatory?

3. Whether RA 6770, on the ground of undue delegation of legislative authority and under the equalprotection clause, is unconstitutional?

Held:

1. YES. Sec. 27. Effectivity and Finality of Decisions.All provisionary orders of the Office of the Ombudsmanare immediately effective and executory.A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filedwithin five (5) days after receipt of written notice and shall be entertained only on any of the followinggrounds:(1) New evidence has been discovered which materially affects the order, directive or decision;(2) Errors of law or irregularities have been committed prejudicial to the interest of the movants. The motion

for reconsideration shall be resolved within three (3) days from filing; Provided, That only one motion forreconsideration shall be entertained.x x x Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of notmore than one months salary shall be final and unappealable.The above rules may be amended or modified by the Office of the Ombudsman as the interest of justice mayrequire.24Sec. 8, Rule III of the Ombudsman Rules of ProcedureSec. 8. Motion for Reconsideration or reinvestigation; Grounds .Whenever allowable, a motion forreconsideration or reinvestigation may only be entertained if filed within ten (10) days from receipt of thedecision by the respondent on any of the following grounds:a) New evidence had been discovered which materially affects the order, directive or decision;b) Grave errors of facts or laws or serious irregularities have been committed prejudicial to the interest ofthe movant.

Only one motion for reconsideration or reinvestigation shall be allowed, and the hearing officers shall resolvethe same within five (5) days from receipt thereof.

Indeed, there exists no irreconcilable inconsistency between the two sets of provisions respecting theimmediate implementability of a preventive suspension order emanating from the Ombudsman. As it were,the conflict concerns only the period for filing a motion for reconsideration. What was once the five-dayreglementary period fixed under Sec. 27(2), RA 6770 is now 10 days under Sec. 8, Rule III, Ombudsman Rulesof Procedure. Apart from this change, both sections in question can validly be harmonized and given effect atthe same time.

Reading and harmonizing together Sec. 27(1) of RA 6770 and Sec. 8, Rule III of the Ombudsman Rules ofProcedure, it is at once apparent that the immediately executory quality of a preventive suspension orderdoes not preclude the preventively suspended respondent from seeking reconsideration of such order. The

existence and availment of the right to move for reconsideration does not motu proprio stay the immediateexecution of the provisionary order of preventive suspension. An order of preventive suspension isa preliminary step in an administrative investigation. And it is usually made immediately effective andexecutory to prevent the respondent from using his/her position or office to influence prospective witnessesor tamper with the records which may be vital to the prosecution of the case.

2. NO. CAs cited portion of theTapiadorcase is a mere obiter dictum which cannot be cited as a doctrinalpronouncement of the Court. Furthermore, the refusal, without just cause, of any officer to comply with anorder of the Ombudsman to penalize an erring officer or employee, which is a ground for disciplinary action,is a strong indication that the Ombudsmans recommendation is not merely advisory in nature but is
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actually mandatory within the bounds of law. By stating that the Ombudsman recommends the action to betaken against an erring officer or employee, the provisions of the Constitution and in RA 6770 intended thatthe implementation of the order be coursed through the proper officer (Ledesma v CA).

3. NO. The Office of the Ombudsman is a creature of the Constitution. The framers of the 1987 Constitutionintended the office to be strong and effective, with sufficient bite and muscle to enable it to carry out its

mandate as protector of the people against the inept, abusive, and corrupt in the Government. They, however,left it to Congress to invest the office with more broad powers to enforce its own action. Clearly then, theespoused theory of undue delegation of authority is untenable. For, in the ultimate analysis, it is the 1987Constitution no less which granted and allowed the grant by Congress of sweeping prosecutorial,investigatory, and disciplinary powers to the Ombudsman. Furthermore, the issue of constitutionality wasnot raised at the earliest possible opportunity; this means before the Office of the Ombudsman, or at leastbefore the CA.

CSC v Cortez

Facts:

Respondent Delia T. Cortez, Chief Personnel Specialist of the Examination and Placement Services Division(EPSD) of Civil Service Regional Office (CSRO) No. X, Cagayan de Oro City, was formally charged with

dishonesty, grave misconduct and conduct grossly prejudicial to the best interest of the service. Thatwhen Abina and Ofredo presented the said application forms at the EPSD, respondent Cortez pasted a stampworth P150.00 on each of the application forms. Thereafter, she asked from them the payment correspondingto the value of the stamps pasted on the said application forms;4. Thereafter, Abina and Ofredo returned to the Cashiers Office to inquire as to whether there are still otherfees to be paid. But when the Cashier saw that the said application forms were already pasted with stamps,she examined the same and she noted that the serial numbers of the said stamps did not correspond with theserial numbers of the stamps issued to said Office;5. This prompted the cashier, accompanied by Abina and Ofredo[,] to proceed to the EPSD and confronted[sic] respondent Cortez on the unauthorized selling of stamps. Consequently, respondent immediatelyremoved the stamps from the application forms, kept them, and brought out the moneywhich Abina and Ofredo earlier gave her and handed the same to the Cashier who subsequently, issued themanother stamps

She denied that she collected money for the stamps and that there was a confrontation between her and thecashier. She branded the charges against her as brazen lies and concoctions of some people determined todestroy her more than twenty years of service in the CSC, eight years of which she served as Chief ofthe EPSD.[4]CSC placed respondent under a 90-day preventive suspension pending formal investigation ofthe serious charges against her.[5]

After carefully evaluating the evidence of the parties, petitioner CSC in its Resolution No. 010499 of 22February 2001 concluded that the version of the complainants was more credible. It noted thatwitnesses Abina and Ofredo categorically pointed to respondent as the source of the questionable stamps andmaterial portions of their testimonies were corroborated by two other witnesses, Eva S. Alcalde and ActingCashier Angeline P. Lim. Thus, it ruled that respondent was guilty of illegally selling recycled stamps for herown financial gain, an act which constituted dishonesty, grave misconduct and conduct grossly prejudicial to

the best interest of the service. It ordered respondent dismissed from the service with forfeiture of benefitsand disqualification from reemployment in the government service, without prejudice to any civil or criminalliability in a proper action.[13]

Court of Appeals granted respondents petition. It ruled that although respondent was properly accordedadministrative due process as evidenced by the fact that she was able to file an answer, a counter-affidavitand even a motion for reconsideration, the penalty of dismissal imposed on her was too harsh considering (a)her twenty-one years of service in the government, (b) the fact that it was her first offense and (c) that nodamage was sustained by the Government. Accordingly, it modified the penalty imposed on respondent from
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dismissal from the service with all its accessory penalties to that of forced resignation from the service withentitlement to all the benefits under the law

Issue: WON private respondent should be dismissedHeld: Yes

Ratio:Under the Civil Service Law[19]and its implementing rules,[20]dishonesty, grave misconduct and conductgrossly prejudicial to the best interest of the service[21]are grave offenses punishable by dismissal from theservice.[22]Thus, as provided by law, there is no other penalty that should be imposed on respondent than thepenalty of dismissal. Of course, the rules allow the consideration of mitigating and aggravatingcircumstances[23]and provide for the manner of imposition of the proper penalty. Jurisprudence is aboundwith cases applying the above rule in the imposition of the proper penalty and even in cases where thepenalty prescribed by law, on commission of the first offense, is that of dismissal, which is, as argued bypetitioner, an indivisible penalty, the presence of mitigating or aggravating circumstances may still be takeninto consideration by us in the imposition of the proper penalty.

Under the facts of this case, respondent is not entitled to a lower penalty. Petitioner CSC is correct that lengthof service should be taken against the respondent. Length of service is not a magic word that, once invoked,

will automatically be considered as a mitigating circumstance in favor of the party invoking it. Length ofservice can either be a mitigating or aggravating circumstance depending on the factual milieu of eachcase. Length of service, in other words, is an alternative circumstance.Moreover, a review of jurisprudenceshows that, although in most cases length of service is considered in favor of the respondent,[28]it is notconsidered where the offense committed is found to be serious.

Applying the above-cited cases to the case at bar, we cannot also consider length of service in favor of therespondent because of the gravity of the offense she committed and of the fact that it was her length ofservice in the CSC which helped her in the commission of the offense.Respondent was in the Civil Service Commission for twenty-one years, the last eight years of which (1990-1998) she spent as Chief of the Examination and Placement Services Division (EPSD). Surely, respondentearned the last position because of her length of service in the CSC. As Chief of the EPSD, she naturally hadaccess to the previously processed and approved application forms wherefrom she detached the stamps and

later on sold to new civil service examination applicants and pocketed the proceeds of the sale.Respondentslength of service in the CSC, therefore, clearly helped her in the commission of the offense.

As to the gravity of the offense, which is the other factor why we cannot consider length of service in favor ofthe respondent, it is clear from the ruling of the CSC that respondents act irreparably tarnished the integrityof the CSC. Respondent was the Chief of the EPSD, but despite such important and senior position whichshould have impelled her to set a good example to her co-employees and other civil servants, respondentflagrantly and shamelessly violated the law by selling, for her own financial gain, used examination feestamps, right in her own office and during office hours.

In several cases,[33]we imposed the heavier penalty of dismissal[34]or a fine of morethan P20,000,[35]considering the gravity of the offense committed, even if the offense charged wasrespondents first offense. Thus, in the present case, even though the offense respondent was found guilty of

was her first offense, the gravity thereof outweighs the fact that it was her first offense.Office of the Ombudsman v Masing

Facts:

In G.R. Nos. 165416 and 165731, respondent Florita A. Masingwas the former Principal of the Davao CityIntegrated Special School (DCISS) in Bangkal, Davao City. Respondent Jocelyn A. Tayactac was an office clerkin the same school. In 1997, respondents were administratively charged before the Office of the Ombudsmanfor Mindanaofor allegedly collecting unauthorized fees, failing to remit authorized fees, and to account forpublic funds
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respondents filed a motion to dismiss on the ground that the Ombudsman has no jurisdiction over them.Respondents alleged that the DECS has jurisdiction over them which shall exercise the same through acommittee to be constituted under Section 9 of Republic Act (R.A.) No. 4670, otherwise known as the TheMagna Carta for Public School Teachers. Ombudsman for Mindanao rendered a joint decision findingrespondents Masing and Tayactac guilty. Court of Appeals granted MR.

In G.R. No. 165584, respondent Florita A. Masing faced yet another administrative case before the Office ofthe Ombudsman-Mindanao filed by Erlinda P. Tan.[5]The charges were oppression, serious misconduct,discourtesy in the conduct of official duties, and physical or mental incapacity or disability due to immoral orvicious habits. As in the other administrative cases, respondent Masing filed a motion to dismiss on theground that the Office of the Ombudsman has no jurisdiction over the case.

Ombudsman for Mindanao found respondent Masing guilty. Court of Appeals set aside the assailedOmbudsman decision

Issue: WON Ombudsman has jurisdictionHeld: Yes

Ratio:Re: intervention of ombudsman in CA. In the cases at bar, the rulings of the Court of Appeals adverselyaffected the all-important jurisdiction of the Office of the Ombudsman. The rulings aggrieved the Office of theOmbudsman for they have serious consequences on its effectiveness as the body charged by the Constitutionwith the prosecution of officials and employees of the government suspected of violating our laws on graftand corruption.

In Civil Service Commission v. Dacoycoy,[20]we recognized the standing of the Civil Service Commission(CSC) to appeal a decision of the Court of Appeals which reversed its decision finding Dacoycoy guilty ofnepotism and ordering his dismissal from the service. Although the CSC was the quasi-judicial body whichrendered the decision appealed to the Court of Appeals, it became the party aggrieved or adversely affectedby its decision which seriously prejudices the civil service system.[21]

Respondents, however, insist that the findings of the Ombudsman are mere recommendations, and that hemay not directly impose administrative sanctions on public officials and employees, citing Tapiador v. Officeof the Ombudsman.[32]The proper interpretation of the Courts statement in Tapiadorshould be thatthe Ombudsman has the authority to determine the administrative liability of a public official or

employee at fault, and direct and compel the head of the office or agency concerned to implement the

penalty imposed. In other words, it merely concerns the proceduralaspect of the Ombudsmans

functions and not itsjurisdiction.The statement that made reference to the power of the Ombudsmanis, at best, merely an obiter dictum and, as it is unsupported by sufficient explanation, is susceptible to

varying interpretations x x x x [h]ence, it cannot be cited as a doctrinal declaration of this Court nor is

it safe from judicial examination.

Finally, respondent Masing contends that she may be administratively dealt with onlyby following theprocedure prescribed in Section 9 of R.A. No. 4670 or the The Magna Carta for Public School Teachers . She

cites Fabella v. Court of Appeals.[38]

In Fabella, several public schoolteachers were administrativelycharged by then DECS Secretary Isidro Cario for taking part in mass actions in violation of civil service lawsand regulations. A committee was constituted to hear the charges. The teachers assailed the procedureadopted by the committee in a petition for certiorari filed before the Regional Trial Court of Quezon City.

Fabella, however,does not apply to the cases at bar. The public schoolteachers in Fabella were charged withviolations of civil service laws, rules and regulations in administrative proceedings initiated by the DECSSecretary. In contrast, herein respondents Masing and Tayactac were administratively charged in letter-complaints duly filed before the Office of the Ombudsman for Mindanao. The charges were for violations ofR.A. No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and
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Employees, collecting unauthorized fees, failure to remit authorized fees, failure to account for public funds,oppression, serious misconduct, discourtesy in the conduct of official duties, and physical or mentalincapacity or disability due to immoral or vicious habits. In short, the acts and omissions complained of relateto respondents conduct as public official and employee, if not to outright graft and corruption.

It is erroneous, therefore, for respondents to contend that R.A. No. 4670 confers an exclusive disciplinary

authority on the DECS over public school teachers and prescribes an exclusive procedure in administrativeinvestigations involving them.[44]R.A. No. 4670 was approved on June 18, 1966. On the other hand, the 1987Constitution was ratified by the people in a plebiscite in 1987 while R.A. No. 6770 was enacted on November17, 1989. It is basic that the 1987 Constitution should not be restricted in its meaning by a law of earlierenactment. The 1987 Constitution and R.A. No. 6770 were quite explicit in conferring authority on theOmbudsman to act on complaints againstallpublic officials and employees, with the exception of officials whomay be removed only by impeachment or over members of Congress and the Judiciary

Therefore, the statement in Fabella thatSection 9 of R.A. No. 4670 reflects the legislative intent to impose astandard and a separate set of procedural requirements in connection with administrative proceedingsinvolving public schoolteachersshould be construed as referring only to the specific procedure to be followedin administrative investigations conducted by the DECS.
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