CASE NO.

MMDA vs. CONCERNED RESIDENTS OF MANILA BAY

x-----------------------------------------------------x
DECISION
VELASCO, JR., J.:
The need to address environmental pollution, as a cause of
climate change, has of late gained the attention of the international
community. Media have finally trained their sights on the ill effects of
pollution, the destruction of forests and other critical habitats, oil spills,
and the unabated improper disposal of garbage. And rightly so, for the
magnitude of environmental destruction is now on a scale few ever
foresaw and the wound no longer simply heals by itself. [2] But amidst
hard evidence and clear signs of a climate crisis that need bold action,
the voice of cynicism, naysayers, and procrastinators can still be
heard.
This case turns on government agencies and their officers who,
by the nature of their respective offices or by direct statutory
command, are tasked to protect and preserve, at the first instance, our
internal waters, rivers, shores, and seas polluted by human activities.
To most of these agencies and their official complement, the pollution
menace does not seem to carry the high national priority it deserves, if
their track records are to be the norm. Their cavalier attitude towards
solving, if not mitigating, the environmental pollution problem, is a sad
commentary on bureaucratic efficiency and commitment.
At the core of the case is the Manila Bay, a place with a proud
historic past, once brimming with marine life and, for so many decades
in the past, a spot for different contact recreation activities, but now a
dirty and slowly dying expanse mainly because of the abject official
indifference of people and institutions that could have otherwise made
a difference.

Regional Trial Court (RTC) in Imus, Cavite against several government

agencies, among them the petitioners, for the cleanup, rehabilitation,
and protection of the Manila Bay. Raffled to Branch 20 and docketed as
Civil Case No. 1851-99 of the RTC, the complaint alleged that the water
quality of theManila Bay had fallen way below the allowable standards
set by law, specifically Presidential Decree No. (PD) 1152 or the
Philippine Environment Code. This environmental aberration, the
complaint stated, stemmed from:
x x x [The] reckless, wholesale, accumulated and
ongoing acts of omission or commission [of the
defendants] resulting in the clear and present danger to
public health and in the depletion and contamination of
the marine life of Manila Bay, [for which reason] ALL
defendants must be held jointly and/or solidarily liable
and be collectively ordered to clean up Manila Bay and to
restore its water quality to class B waters fit for
swimming, skin-diving, and other forms of contact
recreation.[3]
In their individual causes of action, respondents alleged that the
continued neglect of petitioners in abating the pollution of
the Manila Bayconstitutes a violation of, among others:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)

This case started when, on January 29, 1999, respondents

Concerned Residents of Manila Bay filed a complaint before the

(12)

Respondents constitutional right to life, health, and

a balanced ecology;
The Environment Code (PD 1152);
The Pollution Control Law (PD 984);
The Water Code (PD 1067);
The Sanitation Code (PD 856);
The Illegal Disposal of Wastes Decree (PD 825);
The Marine Pollution Law (PD 979);
Executive Order No. 192;
The Toxic and Hazardous Wastes Law (Republic Act
No. 6969);
Civil Code provisions on nuisance and human
relations;
The Trust Doctrine and the Principle of Guardianship;
and
International Law

Inter alia, respondents, as plaintiffs a quo, prayed that

petitioners be ordered to clean the Manila Bay and submit to the RTC a
concerted concrete plan of action for the purpose.
The trial of the case started off with a hearing at the Manila
Yacht Club followed by an ocular inspection of the Manila Bay. Renato T.
Cruz, the Chief of the Water Quality Management Section,
Environmental Management Bureau, Department of Environment and
Natural Resources (DENR), testifying for petitioners, stated that water
samples collected from different beaches around the Manila Bay
showed that the amount of fecal coliform content ranged from 50,000
to 80,000 most probable number (MPN)/ml when what DENR
Administrative Order No. 34-90 prescribed as a safe level for bathing
and other forms of contact recreational activities, or the SB level, is
one not exceeding 200 MPN/100 ml.[4]
Rebecca de Vera, for Metropolitan Waterworks and Sewerage
System (MWSS) and in behalf of other petitioners, testified about the
MWSS efforts to reduce pollution along the Manila Bay through the
Manila Second Sewerage Project. For its part, the Philippine Ports
Authority (PPA) presented, as part of its evidence, its memorandum
circulars on the study being conducted on ship-generated waste
treatment and disposal, and its Linis Dagat (Clean the Ocean) project
for the cleaning of wastes accumulated or washed to shore.
The RTC Ordered Petitioners to Clean Up
and Rehabilitate Manila Bay
On September 13, 2002, the RTC rendered a Decision [5] in favor
of respondents. The dispositive portion reads:
WHEREFORE, finding merit in the complaint,
judgment is hereby rendered ordering the abovenamed
defendant-government agencies, jointly and solidarily, to
clean up and rehabilitate Manila Bay and restore its
waters to SB classification to make it fit for swimming,
skin-diving and other forms of contact recreation. To
attain this, defendant-agencies, with defendant DENR as
the lead agency, are directed, within six (6) months from
receipt hereof, to act and perform their respective duties

by devising a consolidated, coordinated and concerted

scheme of action for the rehabilitation and restoration of
the bay.
In particular:
Defendant MWSS is directed to install, operate
and maintain adequate [sewerage] treatment facilities in
strategic places under its jurisdiction and increase their
capacities.
Defendant LWUA, to see to it that the water
districts under its wings, provide, construct and operate
sewage facilities for the proper disposal of waste.
Defendant DENR, which is the lead agency in
cleaning up Manila Bay, to install, operate and maintain
waste facilities to rid the bay of toxic and hazardous
substances.
Defendant PPA, to prevent and also to treat the
discharge not only of ship-generated wastes but also of
other solid and liquid wastes from docking vessels that
contribute to the pollution of the bay.
Defendant MMDA, to establish, operate and
maintain an adequate and appropriate sanitary landfill
and/or adequate solid waste and liquid disposal as well as
other alternative garbage disposal system such as re-use
or recycling of wastes.
Defendant DA, through the Bureau of Fisheries
and Aquatic Resources, to revitalize the marine life
in Manila Bay and restock its waters with indigenous fish
and other aquatic animals.
Defendant DBM, to provide and set aside an
adequate budget solely for the purpose of cleaning up
and rehabilitation of Manila Bay.
Defendant DPWH, to remove and demolish
structures and other nuisances that obstruct the free flow

of waters to the bay. These nuisances discharge solid and

liquid wastes which eventually end up in Manila Bay. As
the construction and engineering arm of the government,
DPWH is ordered to actively participate in removing
debris, such as carcass of sunken vessels, and other nonbiodegradable garbage in the bay.
Defendant DOH, to closely supervise and monitor
the operations of septic and sludge companies and
require them to have proper facilities for the treatment
and disposal of fecal sludge and sewage coming from
septic tanks.
Defendant DECS, to inculcate in the minds and
hearts of the people through education the importance of
preserving and protecting the environment.
Defendant Philippine Coast Guard and the PNP
Maritime
Group,
to
protect
at
all
costs
the Manila Bay from all forms of illegal fishing.
No pronouncement as to damages and costs.
SO ORDERED.
The MWSS, Local Water Utilities Administration (LWUA), and PPA
filed before the Court of Appeals (CA) individual Notices of Appeal
which were eventually consolidated and docketed as CA-G.R. CV No.
76528.
On the other hand, the DENR, Department of Public Works and
Highways (DPWH), Metropolitan Manila Development Authority
(MMDA), Philippine Coast Guard (PCG), Philippine National Police (PNP)
Maritime Group, and five other executive departments and agencies
filed directly with this Court a petition for review under Rule 45. The
Court, in a Resolution of December 9, 2002, sent the said petition to
the CA for consolidation with the consolidated appeals of MWSS, LWUA,
and PPA, docketed as CA-G.R. SP No. 74944.
Petitioners, before the CA, were one in arguing in the main that
the pertinent provisions of the Environment Code (PD 1152) relate only
to the cleaning of specific pollution incidents and do not cover cleaning

in general. And apart from raising concerns about the lack of funds
appropriated for cleaning purposes, petitioners also asserted that the
cleaning of the Manila Bay is not a ministerial act which can be
compelled by mandamus.
The CA Sustained the RTC
By a Decision[6] of September 28, 2005, the CA denied
petitioners appeal and affirmed the Decision of the RTC in
toto, stressing that the trial courts decision did not require petitioners
to do tasks outside of their usual basic functions under existing laws. [7]
Petitioners are now before this Court praying for the allowance
of their Rule 45 petition on the following ground and supporting
arguments:
THE [CA] DECIDED A QUESTION OF SUBSTANCE
NOT HERETOFORE PASSED UPON BY THE HONORABLE
COURT, I.E., IT AFFIRMED THE TRIAL COURTS DECISION
DECLARING THAT SECTION 20 OF [PD] 1152 REQUIRES
CONCERNED GOVERNMENT AGENCIES TO REMOVE ALL
POLLUTANTS SPILLED AND DISCHARGED IN THE WATER
SUCH AS FECAL COLIFORMS.
ARGUMENTS
I
[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY
TO THE CLEANING OF SPECIFIC POLLUTION INCIDENTS
AND [DO] NOT COVER CLEANING IN GENERAL
II
THE
CLEANING
OR
REHABILITATION
OF
THE MANILA BAY IS NOT A MINISTERIAL ACT OF
PETITIONERS THAT CAN BE COMPELLED BY MANDAMUS.
The issues before us are two-fold. First, do Sections 17 and 20 of
PD 1152 under the headings, Upgrading of Water Quality and Clean-up
Operations, envisage a cleanup in general or are they limited only to
the cleanup of specific pollution incidents? And second, can petitioners

be compelled by
the Manila Bay?

mandamus

to

clean

up

and

rehabilitate

On August 12, 2008, the Court conducted and heard the parties
on oral arguments.
Our Ruling
We shall first dwell on the propriety of the issuance of
mandamus under the premises.
The Cleaning or Rehabilitation of Manila Bay
Can be Compelled by Mandamus
Generally, the writ of mandamus lies to require the execution of
a ministerial duty.[8] A ministerial duty is one that requires neither the
exercise of official discretion nor judgment. [9] It connotes an act in
which nothing is left to the discretion of the person executing it. It is a
simple, definite duty arising under conditions admitted or proved to
exist and imposed by law.[10] Mandamus is available to compel action,
when refused, on matters involving discretion, but not to direct the
exercise of judgment or discretion one way or the other.
Petitioners maintain that the MMDAs duty to take measures and
maintain adequate solid waste and liquid disposal systems necessarily
involves policy evaluation and the exercise of judgment on the part of
the agency concerned. They argue that the MMDA, in carrying out its
mandate, has to make decisions, including choosing where a landfill
should be located by undertaking feasibility studies and cost
estimates, all of which entail the exercise of discretion.
Respondents, on the other hand, counter that the statutory
command is clear and that petitioners duty to comply with and act
according to the clear mandate of the law does not require the exercise
of discretion. According to respondents, petitioners, the MMDA in
particular, are without discretion, for example, to choose which bodies
of water they are to clean up, or which discharge or spill they are to
contain. By the same token, respondents maintain that petitioners are
bereft of discretion on whether or not to alleviate the problem of solid

and liquid waste disposal; in other words, it is the MMDAs ministerial

duty to attend to such services.
We agree with respondents.
First off, we wish to state that petitioners obligation to perform
their duties as defined by law, on one hand, and how they are to carry
out such duties, on the other, are two different concepts. While the
implementation of the MMDAs mandated tasks may entail a decisionmaking process, the enforcement of the law or the very act of doing
what the law exacts to be done is ministerial in nature and may be
compelled by mandamus. We said so in Social Justice Society v.
Atienza[11] in which the Court directed the City of Manila to enforce, as
a matter of ministerial duty, its Ordinance No. 8027 directing the three
big local oil players to cease and desist from operating their business
in the so-called Pandacan Terminals within six months from the
effectivity of the ordinance. But to illustrate with respect to the instant
case, the MMDAs duty to put up an adequate and appropriate sanitary
landfill and solid waste and liquid disposal as well as other alternative
garbage disposal systems is ministerial, its duty being a statutory
imposition. The MMDAs duty in this regard is spelled out in Sec. 3(c) of
Republic Act No. (RA) 7924 creating the MMDA. This section defines
and delineates the scope of the MMDAs waste disposal services to
include:
Solid waste disposal and management which
include formulation and implementation of policies,
standards, programs and projects for proper and sanitary
waste
disposal.
It
shall
likewise
include
the establishment and operation of sanitary land
fill and related facilities and the implementation of
other alternative programs intended to reduce, reuse and
recycle solid waste. (Emphasis added.)
The MMDA is duty-bound to comply with Sec. 41 of the
Ecological Solid Waste Management Act (RA 9003) which prescribes the
minimum criteria for the establishment of sanitary landfills and Sec. 42
which provides the minimum operating requirements that each site
operator
shall
maintain in the operation of a
sanitary
landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA 9003,

[12]

enjoining the MMDA and local government units, among others,

after the effectivity of the law on February 15, 2001, from using and
operating open dumps for solid waste and disallowing, five years after
such effectivity, the use of controlled dumps.
The MMDAs duty in the area of solid waste disposal, as may be
noted, is set forth not only in the Environment Code (PD 1152) and RA
9003, but in its charter as well. This duty of putting up a proper waste
disposal system cannot be characterized as discretionary, for, as
earlier stated, discretion presupposes the power or right given by law
to public functionaries to act officially according to their judgment or
conscience.[13] A discretionary duty is one that allows a person to
exercise judgment and choose to perform or not to perform. [14] Any
suggestion that the MMDA has the option whether or not to perform its
solid waste disposal-related duties ought to be dismissed for want of
legal basis.
A perusal of other petitioners respective charters or like
enabling statutes and pertinent laws would yield this conclusion: these
government agencies are enjoined, as a matter of statutory obligation,
to perform certain functions relating directly or indirectly to the
cleanup, rehabilitation, protection, and preservation of the Manila Bay.
They are precluded from choosing not to perform these duties.
Consider:
(1) The DENR, under Executive Order No. (EO) 192, [15] is the
primary agency responsible for the conservation, management,
development, and proper use of the countrys environment and natural
resources. Sec. 19 of the Philippine Clean Water Act of 2004 (RA 9275),
on the other hand, designates the DENR as the primary government
agency responsible for its enforcement and implementation, more
particularly over all aspects of water quality management. On water
pollution, the DENR, under the Acts Sec. 19(k), exercises jurisdiction
over all aspects of water pollution, determine[s] its location,
magnitude, extent, severity, causes and effects and other pertinent
information on pollution, and [takes] measures, using available
methods and technologies, to prevent and abate such pollution.
The DENR, under RA 9275, is also tasked to prepare a National
Water Quality Status Report, an Integrated Water Quality Management
Framework, and a 10-year Water Quality Management Area Action Plan

which is nationwide in scope covering the Manila Bay and adjoining

areas. Sec. 19 of RA 9275 provides:
Sec. 19 Lead Agency.The [DENR] shall be the
primary government agency responsible for the
implementation and enforcement of this Act x x x unless
otherwise provided herein. As such, it shall have the
following functions, powers and responsibilities:
a)

Prepare a National Water Quality Status report

within twenty-four (24) months from the effectivity of
this Act: Provided, That the Department shall
thereafter review or revise and publish annually, or as
the need arises, said report;

b)

Prepare an Integrated Water Quality Management

Framework within twelve (12) months following the
completion of the status report;

c)

Prepare a ten (10) year Water Quality Management

Area Action Plan within 12 months following the
completion of the framework for each designated
water management area. Such action plan shall be
reviewed by the water quality management area
governing board every five (5) years or as need
arises.

The DENR has prepared the status report for the period 2001 to
2005 and is in the process of completing the preparation of the
Integrated Water Quality Management Framework. [16] Within twelve
(12) months thereafter, it has to submit a final Water Quality
Management Area Action Plan.[17] Again, like the MMDA, the DENR
should be made to accomplish the tasks assigned to it under RA 9275.
Parenthetically, during the oral arguments, the DENR Secretary
manifested that the DENR, with the assistance of and in partnership
with various government agencies and non-government organizations,
has completed, as of December 2005, the final draft of a
comprehensive action plan with estimated budget and time frame,

denominated as Operation Plan for the Manila Bay Coastal Strategy, for
the rehabilitation, restoration, and rehabilitation of the Manila Bay.
The completion of the said action plan and even the
implementation of some of its phases should more than ever prod the
concerned agencies to fast track what are assigned them under
existing laws.
(2) The MWSS, under Sec. 3 of RA 6234, [18] is vested with
jurisdiction, supervision, and control over all waterworks and sewerage
systems in the territory comprising what is now the cities of Metro
Manila and several towns of the provinces of Rizal and Cavite, and
charged with the duty:
(g)
To construct, maintain, and operate such sanitary
sewerages as may be necessary for the proper sanitation
and other uses of the cities and towns comprising the
System; x x x
(3) The LWUA under PD 198 has the power of supervision and
control over local water districts. It can prescribe the minimum
standards and regulations for the operations of these districts and shall
monitor and evaluate local water standards. The LWUA can direct these
districts to construct, operate, and furnish facilities and services for the
collection, treatment, and disposal of sewerage, waste, and storm
water. Additionally, under RA 9275, the LWUA, as attached agency of
the DPWH, is tasked with providing sewerage and sanitation facilities,
inclusive of the setting up of efficient and safe collection, treatment,
and sewage disposal system in the different parts of the country. [19] In
relation to the instant petition, the LWUA is mandated to provide
sewerage and sanitation facilities in Laguna, Cavite, Bulacan,
Pampanga, and Bataan to prevent pollution in the Manila Bay.
(4) The Department of Agriculture (DA), pursuant to the
Administrative Code of 1987 (EO 292),[20] is designated as the agency
tasked to promulgate and enforce all laws and issuances respecting
the conservation and proper utilization of agricultural and fishery
resources. Furthermore, the DA, under the Philippine Fisheries Code of
1998 (RA 8550), is, in coordination with local government units (LGUs)
and other concerned sectors, in charge of establishing a monitoring,
control, and surveillance system to ensure that fisheries and aquatic
resources in Philippine waters are judiciously utilized and managed on

a sustainable basis.[21] Likewise under RA 9275, the DA is charged with

coordinating with the PCG and DENR for the enforcement of water
quality standards in marine waters.[22] More specifically, its Bureau of
Fisheries and Aquatic Resources (BFAR) under Sec. 22(c) of RA 9275
shall primarily be responsible for the prevention and control of water
pollution for the development, management, and conservation of the
fisheries and aquatic resources.
(5) The DPWH, as the engineering and construction arm of the
national government, is tasked under EO 292 [23] to provide integrated
planning, design, and construction services for, among others, flood
control and water resource development systems in accordance with
national development objectives and approved government plans and
specifications.
In Metro Manila, however, the MMDA is authorized by Sec. 3(d),
RA 7924 to perform metro-wide services relating to flood control and
sewerage management which include the formulation and
implementation of policies, standards, programs and projects for an
integrated flood control, drainage and sewerage system.
On July 9, 2002, a Memorandum of Agreement was entered into
between the DPWH and MMDA, whereby MMDA was made the agency
primarily responsible for flood control in Metro Manila. For the rest of
the country, DPWH shall remain as the implementing agency for flood
control services. The mandate of the MMDA and DPWH on flood
control and drainage services shall include the removal of structures,
constructions, and encroachments built along rivers, waterways,
and esteros (drainages) in violation of RA 7279, PD 1067, and other
pertinent laws.
(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the
Revised Coast Guard Law of 1974, and Sec. 6 of PD 979, [24] or the
Marine Pollution Decree of 1976, shall have the primary responsibility
of enforcing laws, rules, and regulations governing marine pollution
within the territorial waters of the Philippines. It shall promulgate its
own rules and regulations in accordance with the national rules and
policies set by the National Pollution Control Commission upon
consultation with the latter for the effective implementation and
enforcement of PD 979. It shall, under Sec. 4 of the law, apprehend
violators who:

a. discharge, dump x x x harmful substances from or out

of any ship, vessel, barge, or any other floating craft, or
other man-made structures at sea, by any method,
means or manner, into or upon the territorial and inland
navigable waters of the Philippines;
b. throw, discharge or deposit, dump, or cause, suffer or
procure to be thrown, discharged, or deposited either
from or out of any ship, barge, or other floating craft or
vessel of any kind, or from the shore, wharf,
manufacturing establishment, or mill of any kind, any
refuse matter of any kind or description whatever other
than that flowing from streets and sewers and passing
therefrom in a liquid state into tributary of any navigable
water from which the same shall float or be washed into
such navigable water; and
c. deposit x x x material of any kind in any place on the
bank of any navigable water or on the bank of any
tributary of any navigable water, where the same shall be
liable to be washed into such navigable water, either by
ordinary or high tides, or by storms or floods, or
otherwise, whereby navigation shall or may be impeded
or obstructed or increase the level of pollution of such
water.
(7) When RA 6975 or the Department of the Interior and Local
Government (DILG) Act of 1990 was signed into law on December 13,
1990, the PNP Maritime Group was tasked to perform all police
functions over the Philippine territorial waters and rivers. Under Sec.
86, RA 6975, the police functions of the PCG shall be taken over by the
PNP when the latter acquires the capability to perform such functions.
Since the PNP Maritime Group has not yet attained the capability to
assume and perform the police functions of PCG over marine pollution,
the PCG and PNP Maritime Group shall coordinate with regard to the
enforcement of laws, rules, and regulations governing marine pollution
within the territorial waters of the Philippines. This was made clear in
Sec. 124, RA 8550 or the Philippine Fisheries Code of 1998, in which

both the PCG and PNP Maritime Group were authorized to enforce said
law and other fishery laws, rules, and regulations.[25]
(8) In accordance with Sec. 2 of EO 513, the PPA is mandated
to establish, develop, regulate, manage and operate a rationalized
national
port system in support of trade and national
development.[26] Moreover, Sec. 6-c of EO 513 states that the PPA has
police authority within the
ports administered by it as may be necessary to carry out
its powers and functions and attain its purposes and
objectives, without prejudice to the exercise of the
functions of the Bureau of Customs and other law
enforcement bodies within the area. Such police authority
shall include the following:
xxxx
b) To regulate the entry to, exit from, and movement
within the port, of persons and vehicles, as well as
movement within the port of watercraft.[27]
Lastly, as a member of the International Marine Organization
and a signatory to the International Convention for the Prevention of
Pollution from Ships, as amended by MARPOL 73/78, [28] the Philippines,
through the PPA, must ensure the provision of adequate reception
facilities at ports and terminals for the reception of sewage from the
ships docking in Philippine ports. Thus, the PPA is tasked to adopt such
measures as are necessary to prevent the discharge and dumping of
solid and liquid wastes and other ship-generated wastes into
the Manila Bay waters from vessels docked at ports and apprehend the
violators. When the vessels are not docked at ports but within
Philippine territorial waters, it is the PCG and PNP Maritime Group that
have jurisdiction over said vessels.
(9) The MMDA, as earlier indicated, is duty-bound to put up and
maintain adequate sanitary landfill and solid waste and liquid disposal
system as well as other alternative garbage disposal systems. It is
primarily responsible for the implementation and enforcement of the
provisions of RA 9003, which would necessary include its penal
provisions, within its area of jurisdiction.[29]

Among the prohibited acts under Sec. 48, Chapter VI of RA 9003

that are frequently violated are dumping of waste matters in public
places, such as roads, canals or esteros, open burning of solid waste,
squatting in open dumps and landfills, open dumping, burying of
biodegradable or non- biodegradable materials in flood-prone areas,
establishment or operation of open dumps as enjoined in RA 9003, and
operation of waste management facilities without an environmental
compliance certificate.
Under Sec. 28 of the Urban Development and Housing Act of
1992 (RA 7279), eviction or demolition may be allowed when persons
or entities occupy danger areas such as esteros, railroad tracks,
garbage dumps, riverbanks, shorelines, waterways, and other public
places such as sidewalks, roads, parks and playgrounds. The MMDA,
as lead agency, in coordination with the DPWH, LGUs, and concerned
agencies, can dismantle and remove all structures, constructions, and
other encroachments built in breach of RA 7279 and other pertinent
laws along the rivers, waterways, and esteros in Metro Manila. With
respect to rivers, waterways, and esteros in Bulacan, Bataan,
Pampanga, Cavite, and Laguna that discharge wastewater directly or
eventually into the Manila Bay, the DILG shall direct the concerned
LGUs to implement the demolition and removal of such structures,
constructions, and other encroachments built in violation of RA 7279
and other applicable laws in coordination with the DPWH and
concerned agencies.
(10) The Department of Health (DOH), under Article 76 of PD
1067 (the Water Code), is tasked to promulgate rules and regulations
for the establishment of waste disposal areas that affect the source of
a water supply or a reservoir for domestic or municipal use. And under
Sec. 8 of RA 9275, the DOH, in coordination with the DENR, DPWH, and
other concerned agencies, shall formulate guidelines and standards for
the collection, treatment, and disposal of sewage and the
establishment and operation of a centralized sewage treatment
system. In areas not considered as highly urbanized cities, septage or
a mix sewerage-septage management system shall be employed.
In accordance with Sec. 72[30] of PD 856, the Code of Sanitation
of the Philippines, and Sec. 5.1.1[31] of Chapter XVII of its implementing
rules, the DOH is also ordered to ensure the regulation and monitoring

of the proper disposal of wastes by private sludge companies through

the strict enforcement of the requirement to obtain an environmental
sanitation clearance of sludge collection treatment and disposal before
these companies are issued their environmental sanitation permit.
(11) The Department of Education (DepEd), under the Philippine
Environment Code (PD 1152), is mandated to integrate subjects on
environmental education in its school curricula at all levels. [32] Under
Sec. 118 of RA 8550, the DepEd, in collaboration with the DA,
Commission on Higher Education, and Philippine Information Agency,
shall launch and pursue a nationwide educational campaign to promote
the development, management, conservation, and proper use of the
environment. Under the Ecological Solid Waste Management Act (RA
9003), on the other hand, it is directed to strengthen the integration of
environmental concerns in school curricula at all levels, with an
emphasis on waste management principles.[33]
(12) The Department of Budget and Management (DBM) is
tasked under Sec. 2, Title XVII of the Administrative Code of 1987 to
ensure the efficient and sound utilization of government funds and
revenues so as to effectively achieve the countrys development
objectives.[34]
One of the countrys development objectives is enshrined in RA
9275 or the Philippine Clean Water Act of 2004. This law stresses that
the State shall pursue a policy of economic growth in a manner
consistent with the protection, preservation, and revival of the quality
of our fresh, brackish, and marine waters. It also provides that it is the
policy of the government, among others, to streamline processes and
procedures in the prevention, control, and abatement of pollution
mechanisms for the protection of water resources; to promote
environmental strategies and use of appropriate economic instruments
and of control mechanisms for the protection of water resources; to
formulate a holistic national program of water quality management
that recognizes that issues related to this management cannot be
separated from concerns about water sources and ecological
protection, water supply, public health, and quality of life; and to
provide a comprehensive management program for water pollution
focusing on pollution prevention.

Thus, the DBM shall then endeavor to provide an adequate

budget to attain the noble objectives of RA 9275 in line with the
countrys development objectives.
All told, the aforementioned enabling laws and issuances are in
themselves clear, categorical, and complete as to what are the
obligations and mandate of each agency/petitioner under the law. We
need not belabor the issue that their tasks include the cleanup of
the Manila Bay.
Now, as to the crux of the petition. Do Secs. 17 and 20 of the
Environment Code encompass the cleanup of water pollution in
general, not just specific pollution incidents?
Secs. 17 and 20 of the Environment Code
Include Cleaning in General
The disputed sections are quoted as follows:
Section 17. Upgrading of Water Quality.Where the
quality of water has deteriorated to a degree where its
state will adversely affect its best usage, the government
agencies concerned shall take such measures as may be
necessary to upgrade the quality of such water to meet
the prescribed water quality standards.
Section 20. Clean-up Operations.It shall be the
responsibility of the polluter to contain, remove and
clean-up water pollution incidents at his own expense. In
case of his failure to do so, the government agencies
concerned shall undertake containment, removal and
clean-up operations and expenses incurred in said
operations shall be charged against the persons and/or
entities responsible for such pollution.
When the Clean Water Act (RA 9275) took effect, its Sec. 16 on
the subject, Cleanup Operations, amended the counterpart provision
(Sec. 20) of the Environment Code (PD 1152). Sec. 17 of PD 1152
continues, however, to be operational.

The amendatory Sec. 16 of RA 9275 reads:

SEC.
16. Cleanup Operations.Notwithstanding
the provisions of Sections 15 and 26 hereof, any person
who causes pollution in or pollutes water bodies in excess
of the applicable and prevailing standards shall be
responsible to contain, remove and clean up any pollution
incident at his own expense to the extent that the same
water bodies have been rendered unfit for utilization and
beneficial use: Provided, That in the event emergency
cleanup operations are necessary and the polluter fails to
immediately undertake the same, the [DENR] in
coordination with other government agencies concerned,
shall undertake containment, removal and cleanup
operations. Expenses incurred in said operations shall be
reimbursed by the persons found to have caused such
pollution under proper administrative determination x x
x. Reimbursements of the cost incurred shall be made to
the Water Quality Management Fund or to such other
funds where said disbursements were sourced.
As may be noted, the amendment to Sec. 20 of the
Environment Code is more apparent than real since the amendment,
insofar as it is relevant to this case, merely consists in the designation
of the DENR as lead agency in the cleanup operations.
Petitioners contend at every turn that Secs. 17 and 20 of the
Environment Code concern themselves only with the matter of
cleaning up in specific pollution incidents, as opposed to cleanup in
general. They aver that the twin provisions would have to be read
alongside the succeeding Sec. 62(g) and (h), which defines the terms
cleanup operations and accidental spills, as follows:
g.
Clean-up
Operations
[refer]
to
activities
conducted in removing the
pollutants discharged or
spilled in water to restore it to pre-spill condition.

h.

Accidental Spills [refer] to spills of oil or

other hazardous substances in water that result
from accidents such as collisions and groundings.

Petitioners proffer the argument that Secs. 17 and 20 of PD

1152 merely direct the government agencies concerned to undertake
containment, removal, and cleaning operations of a specific polluted
portion or portions of the body of water concerned. They maintain that
the application of said Sec. 20 is limited only to water pollution
incidents, which are situations that presuppose the occurrence of
specific, isolated pollution events requiring the corresponding
containment, removal, and cleaning operations. Pushing the point
further, they argue that the aforequoted Sec. 62(g) requires cleanup
operations to restore the body of water to pre-spill condition, which
means that there must have been a specific incident of either
intentional or accidental spillage of oil or other hazardous substances,
as mentioned in Sec. 62(h).
As a counterpoint, respondents argue that petitioners
erroneously read Sec. 62(g) as delimiting the application of Sec. 20 to
the containment, removal, and cleanup operations for accidental spills
only. Contrary to petitioners posture, respondents assert that Sec.
62(g), in fact, even expanded the coverage of Sec. 20. Respondents
explain that without its Sec. 62(g), PD 1152 may have indeed covered
only pollution accumulating from the day-to-day operations of
businesses around the Manila Bay and other sources of pollution that
slowly accumulated in the bay. Respondents, however, emphasize that
Sec. 62(g), far from being a delimiting provision, in fact even enlarged
the operational scope of Sec. 20, by including accidental spills as
among the water pollution incidents contemplated in Sec. 17 in relation
to Sec. 20 of PD 1152.
To respondents, petitioners parochial view on environmental
issues, coupled with their narrow reading of their respective mandated
roles, has contributed to the worsening water quality of the Manila Bay.
Assuming, respondents assert, that petitioners are correct in saying
that the cleanup coverage of Sec. 20 of PD 1152 is constricted by the
definition of the phrase cleanup operations embodied in Sec. 62(g),
Sec. 17 is not hobbled by such limiting definition. As pointed out, the

phrases cleanup operations and accidental spills do not appear in

said Sec. 17, not even in the chapter where said section is found.
Respondents are correct. For one thing, said Sec. 17 does not in
any way state that the government agencies concerned ought to
confine themselves to the containment, removal, and cleaning
operations when a specific pollution incident occurs. On the contrary,
Sec. 17 requires them to act even in the absence of a specific pollution
incident, as long as water quality has deteriorated to a degree where
its state will adversely affect its best usage. This section, to stress,
commands concerned government agencies, when appropriate, to
take such measures as may be necessary to meet the prescribed water
quality standards. In fine, the underlying duty to upgrade the quality
of water is not conditional on the occurrence of any pollution incident.
For another, a perusal of Sec. 20 of the Environment Code, as
couched, indicates that it is properly applicable to a specific situation
in which the pollution is caused by polluters who fail to clean up the
mess they left behind. In such instance, the concerned government
agencies shall undertake the cleanup work for the polluters account.
Petitioners assertion, that they have to perform cleanup operations in
the Manila Bayonly when there is a water pollution incident and the
erring polluters do not undertake the containment, removal, and
cleanup operations, is quite off mark. As earlier discussed, the
complementary Sec. 17 of the Environment Code comes into play and
the specific duties of the agencies to clean up come in even if there are
no pollution incidents staring at them. Petitioners, thus, cannot
plausibly invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of RA
9275 on the pretext that their cleanup mandate depends on the
happening of a specific pollution incident. In this regard, what the CA
said with respect to the impasse over Secs. 17 and 20 of PD 1152 is at
once valid as it is practical. The appellate court wrote: PD 1152 aims
to introduce a comprehensive program of environmental protection
and management. This is better served by making Secs. 17 & 20 of
general application rather than limiting them to specific pollution
incidents.[35]
Granting arguendo that petitioners position thus described vis-vis the implementation of Sec. 20 is correct, they seem to have
overlooked the fact that the pollution of the Manila Bay is of such
magnitude and scope that it is well-nigh impossible to draw the line

10

between a specific and a general pollution incident. And such

impossibility extends to pinpointing with reasonable certainty who the
polluters are. We note that Sec. 20 of PD 1152 mentions water
pollution incidents which may be caused by polluters in the waters of
the Manila Bay itself or by polluters in adjoining lands and in water
bodies or waterways that empty into the bay. Sec. 16 of RA 9275, on
the other hand, specifically adverts to any person who causes
pollution in or pollutes water bodies, which may refer to an individual
or an establishment that pollutes the land mass near the Manila Bay or
the waterways, such that the contaminants eventually end up in the
bay. In this situation, the water pollution incidents are so numerous and
involve nameless and faceless polluters that they can validly be
categorized as beyond the specific pollution incident level.
Not to be ignored of course is the reality that the government
agencies concerned are so undermanned that it would be almost
impossible to apprehend the numerous polluters of the Manila Bay. It
may perhaps not be amiss to say that the apprehension, if any, of
the Manila Bay polluters has been few and far between. Hence,
practically nobody has been required to contain, remove, or clean up a
given water pollution incident. In this kind of setting, it behooves the
Government to step in and undertake cleanup operations. Thus, Sec.
16 of RA 9275, previously Sec. 20 of PD 1152, covers for all intents and
purposes a general cleanup situation.
The cleanup and/or restoration of the Manila Bay is only an
aspect and the initial stage of the long-term solution. The preservation
of the water quality of the bay after the rehabilitation process is as
important as the cleaning phase. It is imperative then that the wastes
and contaminants found in the rivers, inland bays, and other bodies of
water be stopped from reaching the Manila Bay. Otherwise, any
cleanup effort would just be a futile, cosmetic exercise, for, in no time
at all, the Manila Bay water quality would again deteriorate below the
ideal minimum standards set by PD 1152, RA 9275, and other relevant
laws. It thus behooves the Court to put the heads of the petitionerdepartment-agencies and the bureaus and offices under them on
continuing notice about, and to enjoin them to perform, their mandates
and duties towards cleaning up the Manila Bay and preserving the
quality of its water to the ideal level. Under what other judicial
discipline describes as continuing mandamus, [36] the Court may,
under extraordinary circumstances, issue directives with the end in

view of ensuring that its decision would not be set to naught by

administrative inaction or indifference. In India, the doctrine of
continuing mandamus was used to enforce directives of the court to
clean up the length of the Ganges River from industrial and municipal
pollution.[37]
The Court can take judicial notice of the presence of shanties
and other unauthorized structures which do not have septic tanks
along the Pasig-Marikina-San Juan Rivers, the National Capital Region
(NCR) (Paraaque-Zapote, Las Pias) Rivers, the Navotas-MalabonTullahan-Tenejeros Rivers, the Meycuayan-Marilao-Obando (Bulacan)
Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna
De Bay, and other minor rivers and connecting waterways, river banks,
and esteros which discharge their waters, with all the accompanying
filth, dirt, and garbage, into the major rivers and eventually the Manila
Bay. If there is one factor responsible for the pollution of the major
river systems and theManila Bay, these unauthorized structures would
be on top of the list. And if the issue of illegal or unauthorized
structures is not seriously addressed with sustained resolve, then
practically all efforts to cleanse these important bodies of water would
be for naught. The DENR Secretary said as much.[38]
Giving urgent dimension to the necessity of removing these
illegal structures is Art. 51 of PD 1067 or the Water Code, [39] which
prohibits the building of structures within a given length along banks of
rivers and other waterways. Art. 51 reads:
The banks of rivers and streams and the
shores of the seas and lakes throughout their entire
length and within a zone of three (3) meters in
urban areas, twenty (20) meters in agricultural areas
and forty (40) meters in forest areas, along their margins,
are subject to the easement of public use in the
interest of recreation, navigation, floatage, fishing
and salvage. No person shall be allowed to stay in
this zone longer than what is necessary for recreation,
navigation, floatage, fishing or salvage or to build
structures of any kind. (Emphasis added.)

11

Judicial notice may likewise be taken of factories and other

industrial establishments standing along or near the banks of
the Pasig River, other major rivers, and connecting waterways. But
while they may not be treated as unauthorized constructions, some of
these establishments undoubtedly contribute to the pollution of
the Pasig River and waterways. The DILG and the concerned LGUs,
have, accordingly, the duty to see to it that non-complying industrial
establishments set up, within a reasonable period, the necessary waste
water treatment facilities and infrastructure to prevent their industrial
discharge, including their sewage waters, from flowing into
the Pasig River, other major rivers, and connecting waterways. After
such period, non-complying establishments shall be shut down or
asked to transfer their operations.
At this juncture, and if only to dramatize the urgency of the need
for petitioners-agencies to comply with their statutory tasks, we cite
the Asian Development Bank-commissioned study on the garbage
problem in Metro Manila, the results of which are embodied in the The
Garbage Book. As there reported, the garbage crisis in the
metropolitan area is as alarming as it is shocking. Some highlights of
the report:
1. As early as 2003, three land-filled dumpsites in
Metro Manila - the Payatas, Catmon and Rodriquez
dumpsites - generate an alarming quantity of lead and
leachate or liquid run-off. Leachate are toxic liquids that
flow along the surface and seep into the earth and poison
the surface and groundwater that are used for drinking,
aquatic life, and the environment.
2. The high level of fecal coliform confirms the
presence of a large amount of human waste in the dump
sites and surrounding areas, which is presumably
generated by households that lack alternatives to
sanitation. To say that Manila Bay needs rehabilitation is
an understatement.
3. Most of the deadly leachate, lead and other
dangerous contaminants and possibly strains of
pathogens seeps untreated into ground water and runs

into the Marikina and Pasig River systems and Manila Bay.
[40]

Given the above perspective, sufficient sanitary landfills should

now more than ever be established as prescribed by the Ecological
Solid Waste Management Act (RA 9003). Particular note should be
taken of the blatant violations by some LGUs and possibly the MMDA of
Sec. 37, reproduced below:
Sec. 37. Prohibition against the Use of Open
Dumps for Solid Waste.No open dumps shall be
established and operated, nor any practice or disposal of
solid waste by any person, including LGUs which
[constitute] the use of open dumps for solid waste, be
allowed after the effectivity of this Act: Provided, further
that no controlled dumps shall be allowed (5) years
following the effectivity of this Act. (Emphasis
added.)
RA 9003 took effect on February 15, 2001 and the adverted
grace period of five (5) years which ended on February 21, 2006 has
come and gone, but no single sanitary landfill which strictly complies
with the prescribed standards under RA 9003 has yet been set up.
In addition, there are rampant and repeated violations of Sec.
48 of RA 9003, like littering, dumping of waste matters in roads,
canals,esteros, and other public places, operation of open dumps, open
burning of solid waste, and the like. Some sludge companies which do
not have proper disposal facilities simply discharge sludge into the
Metro Manila sewerage system that ends up in the Manila Bay. Equally
unabated are violations of Sec. 27 of RA 9275, which enjoins the
pollution of water bodies, groundwater pollution, disposal of infectious
wastes from vessels, and unauthorized transport or dumping into sea
waters of sewage or solid waste and of Secs. 4 and 102 of RA 8550
which proscribes the introduction by human or machine of substances
to the aquatic environment including dumping/disposal of waste and
other marine litters, discharge of petroleum or residual products of
petroleum of carbonaceous materials/substances [and other]
radioactive, noxious or harmful liquid, gaseous or solid substances,
from any water, land or air transport or other human-made structure.

12

In the light of the ongoing environmental degradation, the Court

wishes to emphasize the extreme necessity for all concerned executive
departments and agencies to immediately act and discharge their
respective official duties and obligations. Indeed, time is of the
essence; hence, there is a need to set timetables for the performance
and completion of the tasks, some of them as defined for them by law
and the nature of their respective offices and mandates.
The importance of the Manila Bay as a sea resource,
playground, and as a historical landmark cannot be over-emphasized.
It is not yet too late in the day to restore the Manila Bay to its former
splendor and bring back the plants and sea life that once thrived in its
blue waters. But the tasks ahead, daunting as they may be, could only
be accomplished if those mandated, with the help and cooperation of
all civic-minded individuals, would put their minds to these tasks and
take responsibility. This means that the State, through petitioners, has
to take the lead in the preservation and protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures is over.
Petitioners must transcend their limitations, real or imaginary, and
buckle down to work before the problem at hand becomes
unmanageable. Thus, we must reiterate that different government
agencies and instrumentalities cannot shirk from their mandates; they
must perform their basic functions in cleaning up and rehabilitating
the Manila Bay. We are disturbed by petitioners hiding behind two
untenable claims: (1) that there ought to be a specific pollution
incident before they are required to act; and (2) that the cleanup of the
bay is a discretionary duty.
RA 9003 is a sweeping piece of legislation enacted to radically
transform and improve waste management. It implements Sec. 16,
Art. II of the 1987 Constitution, which explicitly provides that the State
shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature.
So it was that in Oposa v. Factoran, Jr. the Court stated that the
right to a balanced and healthful ecology need not even be written in
the Constitution for it is assumed, like other civil and political rights
guaranteed in the Bill of Rights, to exist from the inception of mankind
and it is an issue of transcendental importance with intergenerational
implications.[41] Even assuming the absence of a categorical legal

provision specifically prodding petitioners to clean up the bay, they and

the men and women representing them cannot escape their obligation
to future generations of Filipinos to keep the waters of
the Manila Bay clean and clear as humanly as possible. Anything less
would be a betrayal of the trust reposed in them.
WHEREFORE, the petition is DENIED. The September 28,
2005 Decision of the CA in CA-G.R. CV No. 76528 and SP No. 74944
and the September 13, 2002 Decision of the RTC in Civil Case No.
1851-99
are AFFIRMED but
with MODIFICATIONS in
view
of
subsequent
developments
or
supervening
events
in
the
case. The fallo of the RTC Decision shall now read:
WHEREFORE, judgment is hereby rendered
ordering
the
abovenamed
defendant-government
agencies
to
clean
up,
rehabilitate,
and
preserve ManilaBay, and restore and maintain its waters
to SB level (Class B sea waters per Water Classification
Tables under DENR Administrative Order No. 34
[1990]) to make them fit for swimming, skin-diving, and
other forms of contact recreation.
In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the
primary agency responsible for the conservation, management,
development, and proper use of the countrys environment and natural
resources, and Sec. 19 of RA 9275, designating the DENR as the
primary government agency responsible for its enforcement and
implementation, the DENR is directed to fully implement
its Operational Plan for the Manila Bay Coastal Strategy for the
rehabilitation, restoration, and conservation of the Manila Bay at the
earliest possible time. It is ordered to call regular coordination
meetings with concerned government departments and agencies to
ensure the successful implementation of the aforesaid plan of action in
accordance with its indicated completion schedules.
(2) Pursuant to Title XII (Local Government) of the
Administrative Code of 1987 and Sec. 25 of the Local Government
Code of 1991,[42]the DILG, in exercising the Presidents power of
general supervision and its duty to promulgate guidelines in

13

establishing waste management programs under Sec. 43 of the

Philippine Environment Code (PD 1152), shall direct all LGUs in Metro
Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and Bataan to
inspect all factories, commercial establishments, and private homes
along the banks of the major river systems in their respective areas of
jurisdiction, such as but not limited to the Pasig-Marikina-San Juan
Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the NavotasMalabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando
(Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River,
the Laguna De Bay, and other minor rivers and waterways that
eventually discharge water into the Manila Bay; and the lands abutting
the bay, to determine whether they have wastewater treatment
facilities or hygienic septic tanks as prescribed by existing laws,
ordinances, and rules and regulations. If none be found, these LGUs
shall be ordered to require non-complying establishments and homes
to set up said facilities or septic tanks within a reasonable time to
prevent industrial wastes, sewage water, and human wastes from
flowing into these rivers, waterways, esteros, and the Manila Bay,
under pain of closure or imposition of fines and other sanctions.
(3) As mandated by Sec. 8 of RA 9275,[43] the MWSS is directed
to provide, install, operate, and maintain the necessary adequate
waste water treatment facilities in Metro Manila, Rizal, and Cavite
where needed at the earliest possible time.
(4) Pursuant to RA 9275,[44] the LWUA, through the local water
districts and in coordination with the DENR, is ordered to provide,
install, operate, and maintain sewerage and sanitation facilities and
the efficient and safe collection, treatment, and disposal of sewage in
the provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan
where needed at the earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550,[45] the DA, through the BFAR,
is ordered to improve and restore the marine life of the Manila Bay. It
is also directed to assist the LGUs in Metro Manila, Rizal, Cavite,
Laguna, Bulacan, Pampanga, and Bataan in developing, using
recognized methods, the fisheries and aquatic resources in
the Manila Bay.
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP
Maritime Group, in accordance with Sec. 124 of RA 8550, in

coordination with each other, shall apprehend violators of PD 979, RA

8550, and other existing laws and regulations designed to prevent
marine pollution in theManila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 513[46] and the
International Convention for the Prevention of Pollution from Ships, the
PPA is ordered to immediately adopt such measures to prevent the
discharge and dumping of solid and liquid wastes and other shipgenerated wastes into the Manila Bay waters from vessels docked at
ports and apprehend the violators.
(8) The MMDA, as the lead agency and implementor of programs
and projects for flood control projects and drainage services in Metro
Manila, in coordination with the DPWH, DILG, affected LGUs, PNP
Maritime Group, Housing and Urban Development Coordinating Council
(HUDCC), and other agencies, shall dismantle and remove
all structures, constructions, and other encroachments established or
built in violation of RA 7279, and other applicable laws along the PasigMarikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias)
Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting
waterways and esteros in Metro Manila. The DPWH, as the principal
implementor of programs and projects for flood control services in the
rest of the country more particularly in Bulacan, Bataan, Pampanga,
Cavite, and Laguna, in coordination with the DILG, affected LGUs, PNP
Maritime Group, HUDCC, and other concerned government agencies,
shall remove and demolish all structures, constructions, and other
encroachments built in breach of RA 7279 and other applicable laws
along the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay
(Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other
rivers, connecting waterways, and esteros that discharge wastewater
into the Manila Bay.
In addition, the MMDA is ordered to establish, operate, and
maintain a sanitary landfill, as prescribed by RA 9003, within a period
of one (1) year from finality of this Decision. On matters within its
territorial jurisdiction and in connection with the discharge of its duties
on the maintenance of sanitary landfills and like undertakings, it is also
ordered to cause the apprehension and filing of the appropriate
criminal cases against violators of the respective penal provisions of RA
9003,[47] Sec. 27 of RA 9275 (the Clean Water Act), and other existing
laws on pollution.

14

(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8

of RA 9275, within one (1) year from finality of this Decision, determine
if all licensed septic and sludge companies have the proper facilities for
the treatment and disposal of fecal sludge and sewage coming from
septic tanks. The DOH shall give the companies, if found to be noncomplying, a reasonable time within which to set up the necessary
facilities under pain of cancellation of its environmental sanitation
clearance.
(10) Pursuant to Sec. 53 of PD 1152,[48] Sec. 118 of RA 8550, and
Sec. 56 of RA 9003,[49] the DepEd shall integrate lessons on pollution
prevention, waste management, environmental protection, and like
subjects in the school curricula of all levels to inculcate in the minds
and hearts of students and, through them, their parents and friends,
the importance of their duty toward achieving and maintaining a
balanced and healthful ecosystem in the Manila Bay and the entire
Philippine archipelago.
(11) The DBM shall consider incorporating an adequate budget
in the General Appropriations Act of 2010 and succeeding years to
cover the expenses relating to the cleanup, restoration, and
preservation of the water quality of the Manila Bay, in line with the
countrys development objective to attain economic growth in a
manner consistent with the protection, preservation, and revival of our
marine waters.
(12) The heads of petitioners-agencies MMDA, DENR, DepEd,
DOH, DA, DPWH, DBM, PCG, PNP Maritime Group, DILG, and also of
MWSS, LWUA, and PPA, in line with the principle of continuing
mandamus, shall, from finality of this Decision, each submit to the
Court a quarterly progressive report of the activities undertaken in
accordance with this Decision.
No costs.
SO ORDERED.
x-----------------------------------------------------x
CASE NO. 2

FERDINAND TOPACIO VS. GREGORY SANTOS ONG

CARPIO MORALES, J.:

DECISION

Ferdinand Topacio (petitioner) via the present petition for

certiorari and prohibition seeks, in the main, to prevent Justice Gregory
Ong (Ong) from further exercising the powers, duties and
responsibilities of a Sandiganbayan Associate Justice.
It will be recalled that in Kilosbayan Foundation v. Ermita, [1] the
Court, by Decision of July 3, 2007, enjoined Ong from accepting an
appointment to the position of Associate Justice of the Supreme Court
or assuming the position and discharging the functions of that office,
until he shall have successfully completed all necessary steps, through
the appropriate adversarial proceedings in court, to show that he is a
natural-born Filipino citizen and correct the records of his birth and
citizenship.[2]
On July 9, 2007, Ong immediately filed with the Regional Trial
Court (RTC) of Pasig City a Petition for the amendment/ correction/
supplementation or annotation of an entry in [his] Certificate of Birth,
docketed as S.P. Proc No. 11767-SJ, Gregory Santos Ong v. The Civil
Registrar of San Juan, Metro Manila, et al.[3]
Meanwhile,
petitioner,
by
verified
LetterRequest/Complaint[4] of September 5, 2007, implored respondent Office
of the Solicitor General (OSG) to initiate post-haste a quo
warranto proceeding against Ong in the latters capacity as an
incumbent Associate Justice of the Sandiganbayan. Invoking
paragraph 1, Section 7, Article VIII of the Constitution [5] in conjunction
with the Courts Decision in Kilosbayan Foundation v. Ermita,
[6]
petitioner points out that natural-born citizenship is also a
qualification for appointment as member of the Sandiganbayan and

15

that Ong has failed to meet the citizenship requirement from the time
of his appointment as such in October 1998.
The OSG, by letter of September 25, 2007, informed petitioner
that it cannot favorably act on [his] request for the filing of a quo
warrantopetition until the [RTC] case shall have been terminated with
finality.[7] Petitioner assails this position of the OSG as being tainted
with grave abuse of discretion, aside from Ongs continuous discharge
of judicial functions.
Hence, this petition, positing that:
IN OCTOBER OF 1998, RESPONDENT WAS NOT DULYQUALIFIED UNDER THE FIRST SENTENCE OF PARAGRAPH
1, SECTION 7, OF THE 1987 CONSTITUTION, TO BE
APPOINTED
AN
ASSOCIATE
JUSTICE
OF
THE
SANDIGANBAYAN, MERELY ON THE STRENGTH OF AN
IDENTIFICATION CERTIFICATE ISSUED BY THE BUREAU OF
IMMIGRATION AND A 1ST INDORSEMENT DATED 22 MAY
1997 ISSUED BY THE SECRETARY OF JUSTICE,
BECAUSE, AS OF OCTOBER 1998, RESPONDETS BIRTH
CERTIFICATE INDICATED THAT RESPONDENT IS A CHINESE
CITIZEN AND BECAUSE, AS OF OCTOBER 1998, THE
RECORDS OF THIS HONORABLE COURT DECLARED THAT
RESPONDENT IS A NATURALIZED FILIPINO CITIZEN.
[8]
(Underscoring supplied)
Petitioner thus contends that Ong should immediately desist
from holding the position of Associate Justice of the Sandiganbayan
since he is disqualified on the basis of citizenship, whether gauged
from his birth certificate which indicates him to be a Chinese citizen or
against his bar records bearing out his status as a naturalized Filipino
citizen, as declared in Kilosbayan Foundation v. Ermita.
Ong, on the other hand, states that Kilosbayan Foundation v.
Ermita did not annul or declare null his appointment as Justice of the
Supreme Court, but merely enjoined him from accepting his
appointment, and that there is no definitive pronouncement therein
that he is not a natural-born Filipino. He informs that he, nonetheless,
voluntarily relinquished the appointment to the Supreme Court out of
judicial statesmanship.[9]

By Manifestation and Motion to Dismiss of January 3, 2008, Ong

informs that the RTC, by Decision of October 24, 2007, already granted
his petition and recognized him as a natural-born citizen. The Decision
having, to him, become final, [10]he caused the corresponding
annotation thereof on his Certificate of Birth.[11]
Invoking the curative provisions of the 1987 Constitution, Ong
explains that his status as a natural-born citizen inheres from birth and
the legal effect of such recognition retroacts to the time of his birth.
Ong thus concludes that in view of the RTC decision, there is no
more legal or factual basis for the present petition, or at the very least
this petition must await the final disposition of the RTC case which to
him involves a prejudicial issue.
The parties to the present petition have exchanged
pleadings[12] that mirror the issues in the pending petitions for certiorari
in G.R. No. 180543, Kilosbayan Foundation, et al. v. Leoncio M. Janolo,
Jr., et al, filed with this Court and in CA-G.R. SP No. 102318,
Ferdinand S. Topacio v. Leoncio M. Janolo, Jr., et al.,[13] filed with the
appellate court, both of which assail, inter alia, the RTC October 24,
2007 Decision.
First, on the objection concerning the verification of the petition.
The OSG alleges that the petition is defectively verified, being
based on petitioners personal knowledge and belief and/or authentic
records, and having been acknowledged before a notary public who
happens to be petitioners father, contrary to the Rules of Court [14] and
the Rules on Notarial Practice of 2004,[15] respectively.
This technicality deserves scant consideration where the
question at issue, as in this case, is one purely of law and there is no
need of delving into the veracity of the allegations in the petition,
which are not disputed at all by respondents.[16]
One factual allegation extant from the petition is the exchange
of written communications between petitioner and the OSG, the
truthfulness of which the latter does not challenge. Moreover,
petitioner also verifies such correspondence on the basis of the thereto

16

attached letters, the authenticity of which he warranted in the same

verification-affidavit. Other allegations in the petition are verifiable in
a similar fashion, while the rest are posed as citations of law.
The purpose of verification is simply to secure an assurance that
the allegations of the petition or complaint have been made in good
faith; or are true and correct, not merely speculative. This requirement
is simply a condition affecting the form of pleadings, and noncompliance therewith does not necessarily render it fatally
defective. Indeed, verification is only a formal, not a jurisdictional
requirement.[17]
In the same vein, the Court brushes aside the defect, insofar as
the petition is concerned, of a notarial act performed by one who is
disqualified by reason of consanguinity, without prejudice to any
administrative complaint that may be filed against the notary public.
Certiorari with respect to the OSG
On the issue of whether the OSG committed grave abuse of
discretion in deferring the filing of a petition for quo warranto, the Court
rules in the negative.
Grave abuse of discretion implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, or, in other
words, where the power is exercised in an arbitrary or despotic manner
by reason of passion 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 the duty enjoined or to act at all in contemplation of law. [18]
The Court appreciates no abuse of discretion, much less, a grave
one, on the part of the OSG in deferring action on the filing of a quo
warranto case until after the RTC case has been terminated with
finality. A decision is not deemed tainted with grave abuse of
discretion simply because the affected party disagrees with it. [19]
The Solicitor General is the counsel of the government, its
agencies and instrumentalities, and its officials or agents. In the
discharge of its task, the Solicitor General must see to it that the best
interest of the government is upheld within the limits set by law. [20]

The pertinent rules of Rule 66 on quo warranto provide:

SECTION 1. Action by Government against
individuals. An action for the usurpation of a public
office, position or franchise may be commenced by a
verified petition brought in the name of the Republic of
the Philippines against:
(a) A person who usurps, intrudes into, or
unlawfully holds or exercises a public office, position or
franchise;
(b) A public officer who does or suffers an act
which, by the provision of law, constitutes a ground for
the forfeiture of his office; or
(c) An association which acts as a corporation
within the Philippines without being legally incorporated
or without lawful authority so to act.
SEC. 2. When Solicitor General or public
prosecutor must commence action. The Solicitor
General or a public prosecutor, when directed by the
President of the Philippines, or when upon complaint or
otherwise he has good reason to believe that any case
specified in the preceding section can be established by
proof, must commence such action.
SEC. 3. When Solicitor General or public
prosecutor may commence action with permission of
court. The Solicitor General or a public prosecutor may,
with the permission of the court in which the action is to
be commenced, bring such an action at the request and
upon the relation of another person; but in such case the
officer bringing it may first require an indemnity for the
expenses and costs of the action in an amount approved
by and to be deposited in the court by the person at
whose request and upon whose relation the same is
brought. (Italics and emphasis in the original)
In the exercise of sound discretion, the Solicitor General may
suspend or turn down the institution of an action for quo
warranto where there are just and valid reasons. [21] Thus, in Gonzales
v. Chavez,[22] the Court ruled:

17

Like the Attorney-General of the United States

who has absolute discretion in choosing whether to
prosecute or not to prosecute or to abandon a
prosecution already started, our own Solicitor General
may
even
dismiss,
abandon,
discontinue
or
compromise suits either with or without stipulation
with the other party. Abandonment of a case,
however, does not mean that the Solicitor General
may just drop it without any legal and valid reasons,
for the discretion given him is not unlimited. Its
exercise must be, not only within the parameters get
by law but with the best interest of the State as the
ultimate goal.[23]
Upon receipt of a case certified to him, the Solicitor General
exercises his discretion in the management of the case. He may start
the prosecution of the case by filing the appropriate action in court or
he may opt not to file the case at all. He may do everything within his
legal authority but always conformably with the national interest and
the policy of the government on the matter at hand.[24]
It appears that after studying the case, the Solicitor General saw
the folly of re-litigating the same issue of Ongs citizenship in the quo
warranto case simultaneously with the RTC case, not to mention the
consequent risk of forum-shopping. In any event, the OSG did not
totally write finis to the issue as it merely advised petitioner to await
the outcome of the RTC case.
Certiorari and Prohibition with respect to Ong
By petitioners admission, what is at issue is Ongs title to the
office of Associate Justice of Sandiganbayan.[25] He claims to have
been constrained to file the present petition after the OSG refused to
heed his request to institute a suit for quo warranto. Averring that Ong
is disqualified to be a member of any lower collegiate court, petitioner
specifically prays that, after appropriate proceedings, the Court
. . . issue the writs of certiorari and prohibition against
Respondent Ong, ordering Respondent Ong to cease and
desist from further exercising the powers, duties, and

responsibilities of a Justice of the Sandiganbayan due to

violation of the first sentence of paragraph 1, Section 7, of
the 1987 Constitution; . . . issue the writs of certiorari
and prohibition against Respondent Ong and declare that
he was disqualified from being appointed to the post of
Associate Justice of the Sandiganbayan in October of
1998, considering that, as of October of 1998, the birth
certificate of Respondent Ong declared that he is a
Chinese citizen, while even the records of this Honorable
Court, as of October of 1998, declared that Respondent
Ong is a naturalized Filipino; x x x[26]

While denominated as a petition for certiorari and prohibition,

the petition partakes of the nature of a quo warranto proceeding with
respect to Ong, for it effectively seeks to declare null and void his
appointment as an Associate Justice of the Sandiganbayan for being
unconstitutional. While the petition professes to be one for certiorari
and prohibition, petitioner even adverts to a quo warranto aspect of
the petition.[27]
Being a collateral attack on a public officers title, the present
petition for certiorari and prohibition must be dismissed.
The title to a public office may not be contested except directly,
by quo warranto proceedings; and it cannot be assailed collaterally,
[28]
even through mandamus[29] or a motion to annul or set aside order.
[30]
In Nacionalista Party v. De Vera,[31] the Court ruled that prohibition
does not lie to inquire into the validity of the appointment of a public
officer.
x x x [T]he writ of prohibition, even when directed against
persons acting as judges or other judicial officers, cannot
be treated as a substitute for quo warrantoor be rightfully
called upon to perform any of the functions of the writ. If
there is a court, judge or officer de facto, the title to the
office and the right to act cannot be questioned by
prohibition. If an intruder takes possession of a judicial
office, the person dispossessed cannot obtain relief
through a writ of prohibition commanding the alleged

18

intruder to cease from performing judicial acts, since in its

very nature prohibition is an improper remedy by which to
determine the title to an office. [32]

show that he is entitled to the office in dispute. Without

such averment or evidence of such right, the action may
be dismissed at any stage.[40](Emphasis in the original)

Even if the Court treats the case as one for quo warranto, the
petition is, just the same, dismissible.

The rightful authority of a judge, in the full exercise of his public

judicial functions, cannot be questioned by any merely private suitor,
or by any other, except in the form especially provided by law. [41] To
uphold such action would encourage every disgruntled citizen to resort
to the courts, thereby causing incalculable mischief and hindrance to
the efficient operation of the governmental machine.[42]

A quo warranto proceeding is the proper legal remedy to

determine the right or title to the contested public office and to oust
the holder from its enjoyment.[33] It is brought against the person who
is alleged to have usurped, intruded into, or unlawfully held or
exercised the public office,[34] and may be commenced by the Solicitor
General or a public prosecutor, as the case may be, or by any person
claiming to be entitled to the public office or position usurped or
unlawfully held or exercised by another.[35]
Nothing is more settled than the principle, which goes back to
the 1905 case of Acosta v. Flor,[36] reiterated in the recent 2008 case
ofFeliciano v. Villasin,[37] that for a quo warranto petition to be
successful, the private person suing must show a clear right to
the contested office. In fact, not even a mere preferential right to be
appointed thereto can lend a modicum of legal ground to proceed with
the action.[38]
In the present case, petitioner presented no sufficient proof of a
clear and indubitable franchise to the office of an Associate Justice of
the Sandiganbayan. He in fact concedes that he was never entitled to
assume the office of an Associate Justice of the Sandiganbayan. [39]
In the instance in which the Petition for Quo
Warranto is filed by an individual in his own name, he
must be able to prove that he is entitled to the
controverted public office, position, or franchise;
otherwise, the holder of the same has a right to the
undisturbed possession thereof. In actions for Quo
Warranto to determine title to a public office, the
complaint, to be sufficient in form, must show that the
plaintiff is entitled to the office. In Garcia v. Perez, this
Court
ruled
that
the
person
instituting Quo
Warranto proceedings on his own behalf, under Section 5,
Rule 66 of the Rules of Court, must aver and be able to

Clearly then, it becomes entirely unwarranted at this time to

pass upon the citizenship of Ong. The Court cannot, upon the
authority of the present petition, determine said question without
encroaching on and preempting the proceedings emanating from the
RTC case. Even petitioner clarifies that he is not presently seeking a
resolution on Ongs citizenship, even while he acknowledges the
uncertainty of Ongs natural-born citizenship.[43]
The present case is different from Kilosbayan Foundation v.
Ermita, given Ongs actual physical possession and exercise of the
functions of the office of an Associate Justice of the Sandiganbayan,
which is a factor that sets into motion the de facto doctrine.
Suffice it to mention that a de facto officer is one who is in
possession of the office and is discharging its duties under color of
authority, and by color of authority is meant that derived from an
election or appointment, however irregular or informal, so that the
incumbent is not a mere volunteer.[44] If a person appointed to an
office is subsequently declared ineligible therefor, his presumably valid
appointment will give him color of title that will confer on him the
status of a de facto officer.[45]
x x x A judge de facto assumes the exercise of a part of
the prerogative of sovereignty, and the legality of that
assumption is open to the attack of the sovereign power
alone. Accordingly, it is a well-established principle,
dating back from the earliest period and repeatedly
confirmed by an unbroken current of decisions, that the
official acts of a de facto judge are just as valid for all
purposes as those of a de jure judge, so far as the public

19

or third persons who are interested therein are concerned.

[46]

If only to protect the sanctity of dealings by the public with

persons whose ostensible authority emanates from the State, and
without ruling on the conditions for the interplay of the de
facto doctrine, the Court declares that Ong may turn out to be either
a de jure officer who is deemed, in all respects, legally appointed and
qualified and whose term of office has not expired, or a de facto officer
who enjoys certain rights, among which is that his title to said office
may not be contested except directly by writ of quo warranto,[47] which
contingencies all depend on the final outcome of the RTC case.
With the foregoing disquisition, it becomes unnecessary to dwell
on the ancillary issues raised by the parties.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.

GENERALLY, the Ombudsman must yield to the Division School

Superintendent in the investigation of administrative charges against
public school teachers.
The rule and the exception are at focus in this petition for
review on certiorari of the Decision[1] of the Court of Appeals (CA)
divesting the Ombudsman of jurisdiction.
The Facts
Culled from the records, the facts are as follows:[2]
Respondent Ramon C. Galicia was a former public school
teacher
at
M.B.
Asistio,
Sr.
High
School
(MBASHS)
in Caloocan City. Based on the academic records that he submitted
forming part of his 201 file, Galicia graduated from the Far Eastern
University with a degree in civil engineering but failed to pass the
board examinations. He also represented himself to have earned
eighteen (18) units in education in school year (SY) 1985-1986,
evidenced by a copy of a Transcript of Records (TOR) from the
Caloocan City Polytechnic College (CCPC). Likewise, he passed the
Teachers Professional Board Examination (TPBE) given on November
22, 1987.
Subsequently, on December 2001, Reynaldo V. Yamsuan, then
Principal of the MBASHS, reviewed the 201 files of his teaching
staff. He took note that the TOR submitted by Galicia was not an
original copy, but only stamped with verified correct from the original
signed by Administrative Officer Rogelio Mallari. Pursuant to a Division
Memorandum, Yamsuan required Galicia and other teachers with
similar records, to secure authenticated copies of the TOR that they
submitted. All of the teachers who were given the said instruction
complied, with the exception of Galicia.

CASE NO. 3
THE OFFICE OF THE OMBUDSMAN VS. RAMON GALICIA
DECISION

Yamsuan proceeded to verify the authenticity of the said TOR by

requesting for confirmation from the school. Yamsuan was surprised to
receive a reply from Marilyn Torres-De Jesus, College Registrar of CCPC,
stating that they had no record of the said TOR, and more importantly,

20

that they had no records that Galicia, indeed, took up eighteen (18)
units of education in SY 1985-1986. The letter of De Jesus stated:
This has reference to the herein attached
photocopy of Transcript of Records of MR. RAMON C.
GALICIA which you forwarded
in
our
office
for
authentication dated November 29, 2002.
Relative to this, we would like to inform you that
on the basis of our records kept in this office, MR. RAMON
C. GALICIA has no records from the 18 units of Education
1st Semester 1985-1986.[3]
Acting on his findings, Yamsuan lodged an affidavit-complaint for
falsification, dishonesty, and grave misconduct against Galicia before
the Ombudsman.[4]
In his Counter-Affidavit,[5] Galicia contended that the
complaint was malicious and motivated by revenge. Yamsuan had an
axe to grind against him. Earlier, he filed a falsification case against
Yamsuan. The two likewise clashed on account of Galicias
chairmanship of the teachers cooperative.
Galicia stressed that the TOR he submitted was authentic, as
shown
by the signature
of then
College
Registrar
Rolando
Labrador. He argued that the certification from the present college
registrar that CCPC had no record of his TOR did not prove that the
document was spurious. Rather, it only proved that CCPCs filing
system of scholastic records was disorganized. This, according
to Galicia, explained why the schools copy of the TOR could not be
found. Moreover, Galicia argued that the TPBE was a highly specialized
type of exam that could only be passed if the examinee acquired
academic units in education. If he did not take up the said eighteen
(18) units in education, then he could not have possibly passed the
TPBE which he took on November 22, 1987.
During the preliminary conference, Galicia presented for
comparison the original of the TOR and Certificate of Grades (COG), as
well as the original copies of the other documents in his 201
file. A subpoena duces tecum was subsequently served upon Prof.
Marilyn T. De Jesus, Registrar of CCPC, to appear before the Evaluation

and Preliminary Investigation Bureau for the purpose of certifying the

authenticity ofGalicias school records. De Jesus, however, declined to
certify the documents because no copies were on file in the school. In
her reply letter, De Jesus stated:
x x x we would like to inform your good office that
since I was appointed as the College Registrar only June
20, 1997, I cannot certify whether or not the attached
documents were issued by the Caloocan City Polytechnic
College. But, we would like to inform you that
based on the records kept in this office, the
attached two documents are not available in our
file and MR. RAMON C. GALICIA has no records
from the 18 units of Education, 1st Semester,
1985-1986.[6]
Ombudsman Disposition
After the parties submitted their reply, rejoinder, and respective
memoranda, the Ombudsman gave judgment with the following
disposition:
WHEREFORE, PREMISES CONSIDERED, judgment is
hereby rendered finding Galicia RAMON C. GALICIA, Guilty
of Dishonesty for which the penalty of Dismissal From the
Service, Forfeiture of Leave Credits and Retirement
Benefits and Temporary Disqualification for Reemployment in the Government Service for a period of
One (1) Year from the Finality of this Decision, is hereby
imposed, pursuant to Section 52 (A-1) OF THE Uniform
Rules on Administrative Cases (CSC Resolution No.
991936).[7]

While stating that Galicia presented the original of the

questioned documents during the preliminary conference,[8] the
Ombudsman nevertheless found that the absence of a certification
from the College Registrar destroyed the TORs credibility. Said the
Ombudsman:

21

In the preliminary conference of the case

held on September 10, 2002, the respondent,
together
with
his
counsel
presented
for
comparison the original copies of the following
documents:
(1) transcript of records (FEU for
Civil Engineering), (2) transcript of records, Caloocan City
Polytechnic College of the 18 units subject signed by the
then Registrar Rolando Labrador; (3) Certification of
grades also signed by then Registrar Rolando Labrador;
and (4) PBET (teachers board examination grade 73.75%
issued by the Civil Service).
All
these
documents
(transcript
from
the Far Eastern University and
the Caloocan City Polytechnic College) were duly signed
by their respective registrar. [9]
xxxx
It is therefore clear that the pieces of evidence on
record tend to establish the fact that the Official
Transcript of Records submitted by the respondent
is spurious, owing to the fact that he does not
have any record of having attended and/or
obtained the eighteen (18) units of teaching
education subjects.
The photocopy of his Official
Transcript
of
Records does not in any way rebut the evident findings
against him, as the same prove to be weak as specie of
evidence. If, indeed, the respondent has obtained the
eighteen (18) units of teaching education which he
claims, then he could easily prove the same apart from
the mere photocopy of this Official Transcript of
Records. Stated otherwise, if the respondents did
took (sic) eighteen (18) units of teaching
education subjects, then the same can be easily
established by the records of the college
itself. However,
the Caloocan City Polytechnic College has
been
consistent in its stand that the respondent has no

record of having obtained the teaching education

units in question.[10] (Emphasis supplied)
Galicia filed a motion for reconsideration, raising the issue of
jurisdiction for the first time. He argued that it is not the Ombudsman,
but the Department of Education, through the School Superintendent,
which has jurisdiction over administrative cases against public school
teachers, as mandated by Republic Act (R.A.) No. 4670, or the Magna
Carta for Public School Teachers.[11]
Galicia further challenged the jurisdiction of the Ombudsman by
invoking Section 20 of R.A. No. 6770 or the Ombudsman Act [12] which
enumerates the instances when the Ombudsman may not conduct an
administrative
investigation. Under
the
said
provision,
the
Ombudsman may not conduct investigation if the following requisites
concur:
1.

Complainant has an adequate remedy in another

judicial or quasi-judicial body;

2.

The complaint pertains to a matter outside the

jurisdiction of the Ombudsman;

3.

The complaint is trivial, frivolous, vexatious or

made in bad faith;

4.

Complainant has no sufficient personal interest in

the subject matter of the grievance; or

5.

The complaint was filed after one year from the

occurrence of the act or omission complained of.[13]

According to Galicia, all of the above conditions were present in

the case filed against him. An adequate remedy existed in the Office
of the Secretary of Education; the matter was outside the jurisdiction of
the Ombudsman; the complaint was made in bad faith; and
complainant Yamsuan had no sufficient personal interest in the matter.
Lastly, Galicia claimed that the Ombudsman lacked jurisdiction
inasmuch as the complaint was filed only in 2002, thirteen (13) years

22

from the time he allegedly committed the dishonest act in

1989. According to him, this violated Section 20(5) of R.A. No. 6770,
which mandated that all complaints must be filed within one year from
the occurrence of the act charged.[14]
The Ombudsman denied Galicias motion for reconsideration.
It declared that the Ombudsmans disciplining authority extended
over all illegal, unjust, and improper acts of public officials or
employees, as expressly provided by the 1987 Constitution and the
Ombudsman Act.
[15]

Even granting that R.A. No. 4670 [16] gave the School
Superintendent jurisdiction over administrative cases against public
school teachers like Galicia, it did not operate to oust the Ombudsman
from its disciplining authority over public employees. There was, in
fact, as argued by the Ombudsman, concurrent jurisdiction between
the two.
Galicia elevated the case to the CA.
CA Decision
On January 20, 2005, the CA reversed and set aside the decision
of the Ombudsman,[17] disposing as follows:
WHEREFORE, in view of the foregoing, the instant
Petition is hereby GRANTED and the Decision
dated October 18, 2002 as well as the Order datedJuly
28,
2003 of
public
respondent
are
hereby
REVERSED AND SET
ASIDE. Petitioner
is
ordered
REINSTATED to his former position and is hereby awarded
backwages from the time of his illegal dismissal until he
is reinstated and also all other monetary benefits that
may have accrued to him during the period of his
unjustified dismissal.[18]
Principally, the CA held that jurisdiction over public school
teachers belonged to the School Superintendent as mandated by R.A.
No. 4670.[19]

The CA, however, did not hinge its decision solely on the
question of jurisdiction. It upheld the arguments of Galicia and,
consequently, overturned the findings of fact during the investigation
proceedings. Contrary to the ruling of the Ombudsman, the CA ruled
that the schools lack of certification did not establish that the TOR was
fabricated or spurious. It was possible that the records were only
missing. The verified correct from the original notations in the
photocopied TOR and COG prove that the documents were, indeed,
authentic.
Issues
In this petition for review, the Ombudsman, via Rule 45, imputes
to the CA twin errors, viz.:
I
WITH DUE RESPECT, THE HONORABLE COURT OF
APPEALS ERRED IN NULLIFYING THE DECISION OF THE
OFFICE
OF
THE
OMBUDSMAN
ON
ALLEGED
JURISDICTIONAL INFIRMITY.
II
WITH DUE RESPECT, THE HONORABLE COURT OF
APPEALS ERRED
IN
REVERSING
THE
FINDINGS
OF FACT OF
THE
OFFICE
OF
THE
OMBUDSMAN
WHICH ARE BASED
ON
SUBSTANTIAL
EVIDENCE.
[20]
(Underscoring supplied)
Our Ruling
At the center of the present controversy is the authority granted
to the Ombudsman over administrative cases against public school
teachers. Before We proceed to discuss the merits of the petition, We
shall first review the authority granted to the Ombudsman under
existing laws.
The duty and privilege of the Ombudsman to act as
protector of the people against the illegal and unjust acts of
those who are in the public service, emanate from no less than
the 1987 Constitution. Section 12 of Article XI states:

23

Section 12. The Ombudsman and his Deputies, as

protectors of the people, shall act promptly on complaints
filed in any form or manner against public officials or
employees of the Government, or any subdivision,
agency or instrumentality thereof, including governmentowned
or
controlled
corporations, and
shall, in appropriate cases, notify the complainants of
the action taken and the result thereof.
Under Section 13, Article XI, the Ombudsman is empowered to
conduct investigations on its own or upon complaint by any person
when
such
act
appears
to
be
illegal, unjust, improper, or inefficient. He is also given broad
powers to take the appropriate disciplinary actions against erring
public officials and employees.
In Deloso v. Domingo,[21] the Court declared that the clause
illegal act or omission of any public official encompasses any crime
committed by a public official or employee. Its reach is so vast that
there is no requirement that the act or omission be related to or be
connected with the performance of official duty. The rationale for this
grant of vast authority is to insulate the Ombudsman from the corrupt
influences of interested persons who are able to sway decisions in their
favor, and thus thwart the efforts to prosecute offenses committed
while in office and to penalize erring employees and officials.
As mandated by the 1987 Constitution, The Ombudsman Act
was enacted in line with the states policy of maintaining honesty and
integrity in the public service and take effective measures against graft
and corruption.[22] Its investigative authority is enshrined in Section 15:
SEC. 15. Powers, Functions and Duties. 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. (Emphasis supplied)
This power of investigation granted to the Ombudsman by the
1987 Constitution and The Ombudsman Act is not exclusive but is
shared with other similarly authorized government agencies, such as
the PCGG and judges of municipal trial courts and municipal circuit trial
courts.[23] The power to conduct preliminary investigation on charges
against public employees and officials is likewise concurrently shared
with the Department of Justice.[24] Despite the passage of the Local
Government Code in 1991, the Ombudsman retains concurrent
jurisdiction
with
the
Office
of
the
President
and
the local Sanggunians to investigate complaints against local elective
officials.[25]
Section 19 of the Ombudsman Act further enumerates the types
of acts covered by the authority granted to the Ombudsman:
SEC.
19. Administrative
Complaints.
The
Ombudsman shall act on all complaints relating, but not
limited to acts or omissions which:
1.
2.
3.
4.
5.
6.

Are contrary to law or regulation;

Are unreasonable, unfair, oppressive or
discriminatory;
Are inconsistent with the general course of
an agencys functions, though in accordance
with law;
Proceed from a mistake of law or an
arbitrary ascertainment of facts;
Are in the exercise of discretionary powers
but for an improper purpose; or
Are otherwise irregular, immoral or devoid
of justification

In the exercise of its duties, the Ombudsman is given full

administrative disciplinary authority. His power is not limited merely to
receiving, processing complaints, or recommending penalties. He is to
conduct investigations, hold hearings, summon witnesses and require

24

production of evidence and place respondents under preventive

suspension. This includes the power to impose the penalty of removal,
suspension, demotion, fine, or censure of a public officer or employee.
[26]

A review of the Ombudsman Act and the Magna Carta for Public
School Teachers reveals an apparent overlapping of jurisdiction over
administrative cases against public school teachers.
Section 9 of the Magna Carta for Public School Teachers grants
jurisdiction over erring public school teachers to an Investigating
Committee headed by the Division School Superintendent. The
provision reads:
SEC. 9. Administrative Charges. Administrative
charges against a teacher shall be heard initially
by a committee composed of the corresponding
School Superintendent of the Division or a duly
authorized representative who should at least have
the rank of a division supervisor, where the teacher
belongs, as chairman, a representative of the local or, in
its absence, any existing provincial or national teachers
organization and a supervisor of the Division, the last two
to be designated by the Director of Public Schools. The
committee
shall
submit
its
findings
and
recommendations to the Director of Public Schools within
thirty
days
from
the
termination
of
the
hearings: Provided, however, That where the school
superintendent is the complainant or an interested party,
all the members of the committee shall be appointed by
the Secretary of Education.
Galicia argues that jurisdiction exclusively belongs to the
investigating committee on the main thesis that the Magna Carta for
Public School Teachers is a special law which should take precedence
over the Ombudsman Act, a general law. The Ombudsman maintains
that jurisdiction among the two bodies is concurrent since there is no
express repeal in either of the laws that would oust the Ombudsman
from its authority over public school teachers.

This is not a novel issue. This Court has recently ruled

in Office of the Ombudsman v. Estandarte[27] that by virtue of
the Magna Carta for Public School Teachers, original
jurisdiction belongs to the school superintendent. The intention
of the law, which is to impose a separate standard and procedural
requirement for administrative cases involving public school teachers,
must be given consideration.[28] Hence, the Ombudsman must yield to
this committee of the Division School Superintendent. Even in the
earlier case of Alcala v. Villar,[29]the Court held that:
Republic Act No. 6770, the Ombudsman Act of
1989, provides that the Ombudsman shall have
disciplinary authority over all elective and appointive
officials of the Government and its subdivisions,
instrumentalities and agencies, including members of the
Cabinet, local government, government-owned or
controlled corporations and their subsidiaries except over
officials who may be removed by impeachment or over
Members of Congress, and the Judiciary. However,
in Fabella v. Court of Appeals, it was held that R.A. No.
4670, the Magna Carta for Public School Teachers,
specifically covers and governs administrative
proceedings involving public school teachers. x x
x[30] (Emphasis supplied)
Be that as it may, We hold here that the Ombudsmans exercise
of jurisdiction was proper.
The CA was in error in relying on Alcala, without taking into
consideration the cases full import. In Alcala, the Court, while
recognizing the jurisdiction of the School Superintendent, nonetheless
upheld the decision of the Ombudsman on the rationale that the
parties were afforded their right to due process during the
investigation proceedings. Respondent in the Alcala case was given
sufficient opportunity to be heard and submit his defenses to the
charges made against him. Thus, he is estopped from questioning the
jurisdiction of the Ombudsman after an adverse decision was
promulgated.
In the same manner, the recent Estandarte case recognized
similar circumstances cited in Emin v. De Leon.[31] In De Leon, it was

25

found that the parties were afforded their right to due process when
both fully participated in the proceedings before the Civil Service
Commission (CSC). The Court ruled that while jurisdiction lies with the
School Superintendent, respondent is estopped from attacking the
proceedings before the CSC.
In the present case, records show that Galicia was given the
right to due process in the investigation of the charges against
him. He participated in the proceedings by making known his defenses
in the pleadings that he submitted. It was only when a decision
adverse to him was rendered did he question the jurisdiction of the
Ombudsman.
Under the principles of estoppel and laches, We rule that it is
now too late for Galicia to assail the administrative investigation
conducted and the decision rendered against him.
Galicia strongly believes and claims that he was denied due
process for the reason that he only presented his original documents
once and he was allegedly not informed of the hearing date when De
Jesus, the CCPC Registrar, testified. A perusal of the records show,
however, thatGalicia was given an opportunity by petitioner to
comment on the certification issued by De Jesus that CCPC has no
record of the TOR and COGpresented by Galicia.[32] Indeed, Galicia was
able to present his side when he filed his comment to said certification
on January 17, 2003.[33]
The essence of due process in administrative proceedings is an
opportunity to explain ones side or an opportunity to seek
reconsideration of the action or ruling complained of. [34] During the
proceedings before the Ombudsman, Galicia filed a Counter-Affidavit,
Rejoinder-Affidavit,
Comment
on
the
Certification
of the CCPC Registrar, and a Rejoinder to Reply. He also submitted
documents in support of his contentions. Likewise, there is no
indication that the proceedings were done in a manner that would
prevent him from presenting his defenses. Verily, these suffice to
satisfy the requirements of due process because the opportunity to be
heard especially in administrative proceedings (where technical rules
of procedure and evidence are not strictly applied) is not limited to oral
arguments. More often, this opportunity is conferred through written

pleadings that the parties submit to present their charges and

defenses.[35]
In sum, We reiterate that it is the School Superintendent and not
the Ombudsman that has jurisdiction over administrative cases against
public school teachers. Yet, Galicia is estopped from belatedly assailing
the jurisdiction of the Ombudsman. His right to due process was
satisfied
when
he
participated
fully
in
the
investigation
proceedings. He was able to present evidence and arguments in his
defense. The investigation conducted by the Ombudsman was
therefore valid.
We now proceed to discuss the meat of the petition.
Superior courts are not triers of facts. When the findings of fact
of the Ombudsman are supported by substantial evidence, it should be
considered as conclusive.[36] This court recognizes the expertise and
independence of the Ombudsman and will avoid interfering with its
findings absent a finding of grave abuse of discretion. [37] However, the
findings of fact of the Ombudsman will not escape judicial review,
more so in cases where the CA reached a different conclusion on
appeal.[38]
The Ombudsman found that the TOR submitted by Galicia as
evidence that he took up eighteen (18) units of education in the CCPC
is spurious. In arriving at this conclusion, the Ombudsman conducted
investigation proceedings and examined the evidence presented by
both parties. In essence, it was held that a TOR that is not
authenticated by the school is not a valid document.
Records show that Galicia presented an original copy of the TOR
and COG during the preliminary investigation conducted by the
Ombudsman.[39] He argues that these original copies are enough proof
that his documents are authentic and the fact that the present
registrar of the school did not certify his school records is not
persuasive evidence to defeat his original documents.
On appeal, the CA reversed the findings of the Ombudsman on
the ground that the certification by the present College Registrar
attests merely to the fact that petitioners transcript does not appear in
their records. According to the CA, Galicia did present the original copy

26

of his TOR during the preliminary conference. We quote with approval

the observations of the CA on this matter:

Ombudsman finding them guilty of falsification, dishonesty, and grave

misconduct was upheld.

The certification issued by the present College

Registrar, Prof. Marilyn de Jesus of the Polytechnic College
of Caloocan City attests merely to the fact that
petitioners transcript does not appear on their
records. It is possible that the transcript of petitioners
was only misplaced and/or missing. Such certification,
however, does not necessarily mean that petitioner
fabricated his education records or that the one
which he presented is spurious just so he could
gain
employment
at
the M.B. Asistio Sr. High
School. Verily, the failure of Prof. Marilyn de Jesus
to locate the transcript of records of petitioner
should not be taken against the latter. Besides, as
confirmed
by the
investigating
officer
in
the
administrative proceedings,petitioner presented the
original of his transcript of records at the
preliminary conference of the case on September
10, 2002.

We find, however, that Lumancas is not applicable to this

case. In Lumancas, it was the CHED which issued the negative
certification, a public document of a government institution which
enjoys the presumption of regularity. [42] Here, what was presented to
the Ombudsman was a certification not from the CHED but from a
college, and that does not enjoy the same evidentiary value.

As earlier intimated, the transcript of grades for

the 18 units of teaching education which petitioner
submitted was issued to him by then College Registrar
Rolando Labrador and bears the signature of
Administrative Officer III Rogelio Mallari with the notation:
verified correct from the original. The certification was
signed by Administrative Officer III Rogelio Mallari and the
previous College Registrar, Rolando Labrador. Said
notation, thus, connotes that the transcript of
records
and
accompanying
certification
are
authentic reproductions of the original.[40] (Emphasis
supplied)
We are mindful of Our decision in Lumancas v. Intas,
[41]
where two government employees submitted TORs and Special
Orders as proof of their educational attainment. Upon verification with
the CHED, it was found that there were no records with the
Department of Education that respondents were enrolled with the
named school during the period. Consequently, the decision of the

In administrative proceedings, the complainant has the

burden of proving the allegations in the complaint.[43] Absent
substantial evidence to prove the falsity of the TOR presented
by Galicia duly signed by the College Registrar at that time, We are
constrained to uphold his innocence of the charges of falsification.
Galicias original TOR, although belatedly submitted, is positive
evidence that, indeed, he took up 18 units of education at the
CCPC. The present College Registrars certification of the absence
of Galicias records in her office, is negative evidence to the
contrary. Following the general rule that positive evidence is more
credible than negative evidence, We find more reason to uphold the
findings of the CA.[44]
WHEREFORE,
Decision AFFIRMED.

the

petition

is DENIED and

the

appealed

SO ORDERED.

CASE NO. 4
LIWAYWAY VINZONS-CHATO VS. FORTUNE TOBACCO CORP.
It is a fundamental principle in the law of public officers that a
duty owing to the public in general cannot give rise to a liability in

27

favor of particular individuals.[1] The failure to perform a public duty

can constitute an individual wrong only when a person can show that,
in the public duty, a duty to himself as an individual is also involved,
and that he has suffered a special and peculiar injury by reason of its
improper performance or non-performance.[2]
By
this
token,
the
2007 Decision[3] in this case.

Court

reconsiders

its June

19,

As culled from the said decision, the facts, in brief, are as

follows:
On June 10, 1993, the legislature enacted Republic
Act No. 7654 (RA 7654), which took effect on July 3,
1993. Prior to its effectivity, cigarette brandsChampion,
Hope, and More were considered local brands
subjected to an ad valorem tax at the rate of 2045%. However, on July 1, 1993, or two days before RA
7654 took effect, petitioner issued RMC 37-93
reclassifying Champion, Hope, and More as locally
manufactured
cigarettes
bearing
a
foreign
brand subject to the 55% ad valorem tax. RMC 37-93 in
effect subjected Hope, More, and Champion
cigarettes to the provisions of RA 7654, specifically, to
Sec. 142, (c)(1) on locally manufactured cigarettes which
are currently classified and taxed at 55%, and which
imposes an ad valorem tax of 55% provided that the
minimum tax shall not be less than Five Pesos (P5.00) per
pack.
On July 2, 1993, at about 5:50 p.m., BIR Deputy
Commissioner Victor A. Deoferio, Jr. sent via telefax a
copy of RMC 37-93 to Fortune Tobacco but it was
addressed to no one in particular. On July 15, 1993,
Fortune Tobacco received, by ordinary mail, a certified
xerox copy of RMC 37-93. On July 20, 1993, respondent
filed a motion for reconsideration requesting the recall of
RMC 37-93, but was denied in a letter dated July 30,
1993. The same letter assessed respondent for ad
valorem tax deficiency amounting to P9,598,334.00
(computed on the basis of RMC 37-93) and demanded

payment within 10 days from receipt thereof. On August

3, 1993, respondent filed a petition for review with the
Court of Tax Appeals (CTA), which on September 30,
1993, issued an injunction enjoining the implementation
of RMC 37-93. In its decision dated August 10, 1994, the
CTA ruled that RMC 37-93 is defective, invalid, and
unenforceable and further enjoined petitioner from
collecting the deficiency tax assessment issued pursuant
to RMC No. 37-93. This ruling was affirmed by the Court
of Appeals, and finally by this Court in Commissioner of
Internal Revenue v. Court of Appeals. It was held, among
others, that RMC 37-93, has fallen short of the
requirements for a valid administrative issuance.
On April 10, 1997, respondent filed before the RTC
a complaint for damages against petitioner in her private
capacity. Respondent contended that the latter should
be held liable for damages under Article 32 of the Civil
Code considering that the issuance of RMC 37-93 violated
its constitutional right against deprivation of property
without due process of law and the right to equal
protection of the laws.
Petitioner filed a motion to dismiss contending
that: (1) respondent has no cause of action against her
because she issued RMC 37-93 in the performance of her
official function and within the scope of her
authority. She claimed that she acted merely as an agent
of the Republic and therefore the latter is the one
responsible for her acts; (2) the complaint states no
cause of action for lack of allegation of malice or bad
faith; and (3) the certification against forum shopping
was signed by respondents counsel in violation of the
rule that it is the plaintiff or the principal party who
should sign the same.
On September 29, 1997, the RTC denied
petitioners motion to dismiss holding that to rule on the
allegations of petitioner would be to prematurely decide
the merits of the case without allowing the parties to
present evidence. It further held that the defect in the

28

certification against forum shopping was cured by

respondents submission of the corporate secretarys
certificate authorizing its counsel to execute the
certification against forum shopping. x x x x
xxxx
The case was elevated to the Court of
Appeals via a
petition
for
certiorari
under
Rule
65. However, same was dismissed on the ground that
under Article 32 of the Civil Code, liability may arise even
if the defendant did not act with malice or bad faith. The
appellate court ratiocinated that Section 38, Book I of the
Administrative Code is the general law on the civil liability
of public officers while Article 32 of the Civil Code is the
special law that governs the instant case. Consequently,
malice or bad faith need not be alleged in the complaint
for damages. It also sustained the ruling of the RTC that
the defect of the certification against forum shopping was
cured by the submission of the corporate secretarys
certificate giving authority to its counsel to execute the
same.[4][Citations and underscoring omitted.]
In the aforesaid June 19, 2007 Decision, we affirmed the
disposition of the Court of Appeals (CA) and directed the trial court to
continue with the proceedings in Civil Case No. 97-341-MK. [5]
Petitioner, on July 20, 2007, subsequently moved for the
reconsideration of the said decision.[6] After respondent filed its
comment, the Court, in its April 14, 2008 Resolution,[7] denied with
finality petitioners motion for reconsideration.
Undaunted, petitioner filed, on April 29, 2008 her Motion to Refer
[the case] to the Honorable Court En Banc.[8] She contends that the
petition raises a legal question that is novel and is of paramount
importance. The earlier decision rendered by the Court will send a
chilling effect to public officers, and will adversely affect the
performance of duties of superior public officers in departments or
agencies with rule-making and quasi-judicial powers. With the said

decision, the Commissioner of Internal Revenue will have reason to

hesitate or refrain from performing his/her official duties despite the
due process safeguards in Section 228 of the National Internal Revenue
Code.[9] Petitioner hence moves for the reconsideration of the June 19,
2007 Decision.[10]
In its June 25, 2008 Resolution,[11] the Court referred the case to
the En Banc. Respondent consequently moved for the reconsideration
of this resolution.
We now resolve both motions.
There are two kinds of duties exercised by public officers: the
duty owing to the public collectively (the body politic), and the duty
owing to particular individuals, thus:

1. Of Duties to the Public. The first of these

classes embraces those officers whose duty is owing
primarily to the public collectively --- to the body politic
--- and not to any particular individual; who act for the
public at large, and who are ordinarily paid out of the
public treasury.

The officers whose duties fall wholly or partially

within this class are numerous and the distinction will be
readily recognized. Thus, the governor owes a duty to
the public to see that the laws are properly executed,
that fit and competent officials are appointed by him,
that unworthy and ill-considered acts of the legislature do
not receive his approval, but these, and many others of a
like nature, are duties which he owes to the public at
large and no one individual could single himself out and
assert that they were duties owing to him alone. So,
members of the legislature owe a duty to the public to
pass only wise and proper laws, but no one person could
pretend that the duty was owing to himself rather than to
another. Highway commissioners owe a duty that they

29

will be governed only by considerations of the public

good in deciding upon the opening or closing of
highways, but it is not a duty to any particular individual
of the community.

These illustrations might be greatly extended, but

it is believed that they are sufficient to define the general
doctrine.

2. Of Duties to Individuals. The second class

above referred to includes those who, while they owe to
the public the general duty of a proper administration of
their respective offices, yet become, by reason of their
employment by a particular individual to do some act for
him in an official capacity, under a special and particular
obligation to him as an individual. They serve individuals
chiefly and usually receive their compensation from fees
paid by each individual who employs them.

A sheriff or constable in serving civil process for a

private suitor, a recorder of deeds in recording the deed
or mortgage of an individual, a clerk of court in entering
up a private judgment, a notary public in protesting
negotiable paper, an inspector of elections in passing
upon the qualifications of an elector, each owes a general
duty of official good conduct to the public, but he is also
under a special duty to the particular individual
concerned which gives the latter a peculiar interest in his
due performance.[12]

In determining whether a public officer is liable for an

improper performance or non-performance of a duty, it must first be
determined which of the two classes of duties is involved. For, indeed,
as the eminent Floyd R. Mechem instructs, [t]he liability of a public
officer to an individual or the public is based upon and is co-extensive
with his duty to the individual or the public. If to the one or the other
he owes no duty, to that one he can incur no liability.[13]
Stated differently, when what is involved is a duty owing to the
public in general, an individual cannot have a cause of action for
damages against the public officer, even though he may have been
injured by the action or inaction of the officer. In such a case, there is
damage to the individual but no wrong to him. In performing or failing
to perform a public duty, the officer has touched his interest to his
prejudice; but the officer owes no duty to him as an individual. [14] The
remedy in this case is not judicial but political. [15]
The exception to this rule occurs when the complaining
individual suffers a particular or special injury on account of the public
officers improper performance or non-performance of his public
duty. An individual can never be suffered to sue for an injury which,
technically, is one to the public only; he must show a wrong which he
specially suffers, and damage alone does not constitute a wrong. [16] A
contrary precept (that an individual, in the absence of a special and
peculiar injury, can still institute an action against a public officer on
account of an improper performance or non-performance of a duty
owing to the public generally) will lead to a deluge of suits, for if one
man might have an action, all men might have the likethe
complaining individual has no better right than anybody else.[17] If such
were the case, no one will serve a public office. Thus, the rule restated
is that an individual cannot have a particular action against a public
officer without a particular injury, or a particular right, which are the
grounds upon which all actions are founded.[18]
Juxtaposed with Article 32[19] of the Civil Code, the principle may
now translate into the rule that an individual can hold a public officer
personally liable for damages on account of an act or omission that
violates a constitutional right only if it results in a particular wrong or
injury to the former. This is consistent with this Courts
pronouncement in its June 19, 2007 Decision (subject of petitioners

30

motion for reconsideration) that Article 32, in fact, allows a damage

suit for tort for impairment of rights and liberties.[20]

31

It may be recalled that in tort law, for a plaintiff to maintain an

action for damages for the injuries of which he complains, he must
establish that such injuries resulted from a breach of duty which the
defendant owed the plaintif, meaning a concurrence of injury to the
plaintif and legal responsibility by the person causing it. Indeed,
central to an award of tort damages is the premise that an individual
was injured in contemplation of law. [21] Thus, in Lim v. Ponce de Leon,
[22]
we granted the petitioners claim for damages because he, in fact,
suffered the loss of his motor launch due to the illegal seizure
thereof. In Cojuangco, Jr. v. Court of Appeals, [23] we upheld the right of
petitioner to the recovery of damages as there was an injury sustained
by him on account of the illegal withholding of his horserace prize
winnings.
In the instant case, what is involved is a public officers duty
owing to the public in general. The petitioner, as the then
Commissioner of the Bureau of Internal Revenue, is being taken to task
for Revenue Memorandum Circular (RMC) No. 37-93 which she issued
without the requisite notice, hearing and publication, and which,
in Commissioner of Internal Revenue v. Court of Appeals, [24] we
declared as having fallen short of a valid and effective administrative
issuance.[25] A public officer, such as the petitioner, vested with quasilegislative or rule-making power, owes a duty to the public to
promulgate rules which are compliant with the requirements of valid
administrative regulations. But it is a duty owed not to the respondent
alone, but to the entire body politic who would be affected, directly or
indirectly, by the administrative rule.
Furthermore, as discussed above, to have a cause of action for
damages against the petitioner, respondent must allege that it
suffered aparticular or special injury on account of the nonperformance by petitioner of the public duty. A careful reading of the
complaint filed with the trial court reveals that no particular injury is
alleged to have been sustained by the respondent. The phrase
financial and business difficulties [26] mentioned in the complaint is a
vague notion, ambiguous in concept, and cannot translate into a
particular injury. In contrast, the facts of the case eloquently
demonstrate that the petitioner took nothing from the respondent, as
the latter did not pay a single centavo on the tax assessment levied by
the former by virtue of RMC 37-93.

With no particular injury alleged in the complaint, there is,

therefore, no delict or wrongful act or omission attributable to the
petitioner that would violate the primary rights of the
respondent. Without such delict or tortious act or omission, the
complaint then fails to state a cause of action, because a cause of
action is the act or omission by which a party violates a right of
another.[27]
A cause of action exists if the following elements are present: (1)
a right in favor of the plaintiff by whatever means and under whatever
law it arises or is created; (2) an obligation on the part of the named
defendant to respect or not to violate such right; and (3) an act or
omission on the part of such defendant violative of the right of the
plaintiff or constituting a breach of the obligation of defendant to
plaintiff for which the latter may maintain an action for recovery of
damages.[28]
The remedy of a party whenever the complaint does not allege
a cause of action is to set up this defense in a motion to dismiss, or in
the answer. A motion to dismiss based on the failure to state a cause
of action in the complaint hypothetically admits the truth of the facts
alleged therein. However, the hypothetical admission is limited to the
relevant and material facts well-pleaded in the complaint and
inferences deducible therefrom. The admission does not extend to
conclusions or interpretations of law; nor does it cover allegations of
fact the falsity of which is subject to judicial notice. [29]
The complaint may also be dismissed for lack of cause of action
if it is obvious from the complaint and its annexes that the plaintiff is
not entitled to any relief.[30]
The June 19, 2007 Decision and the dissent herein reiterates that
under Article 32 of the Civil Code, the liability of the public officer may
accrue even if he/she acted in good faith, as long as there is a violation
of constitutional rights, citing Cojuangco, Jr. v. Court of Appeals,
[31]
where we said:

32

Under the aforecited article, it is not necessary

that the public officer acted with malice or bad faith. To
be liable, it is enough that there was a violation of the
constitutional rights of petitioners, even on the pretext of
justifiable motives or good faith in the performance of
duties.[32]

The complaint in this case does not impute bad faith on the
petitioner. Without any allegation of bad faith, the cause of action in
the respondents complaint (specifically, paragraph 2.02 thereof) for
damages under Article 32 of the Civil Code would be premised on the
findings of this Court in Commissioner of Internal Revenue v. Court of
Appeals (CIR v. CA),[33] where we ruled that RMC No. 37-93, issued by
petitioner in her capacity as Commissioner of Internal Revenue,
had fallen short of a valid and efective administrative issuance. This
is a logical inference. Without the decision in CIR v. CA, the bare
allegations in the complaint that respondents rights to due process of
law and to equal protection of the laws were violated by the
petitioners administrative issuance would be conclusions of law, hence
not hypothetically admitted by petitioner in her motion to dismiss.

But in CIR v. CA, this Court did not declare RMC 37-93
unconstitutional; certainly not from either the due process of law or
equal protection of the laws perspective. On due process, the majority,
after determining that RMC 37-93 was a legislative rule, cited an earlier
Revenue Memorandum Circular (RMC No. 10-86) requiring prior notice
before RMCs could become operative. However, this Court did not
make an express finding of violation of the right to due process of
law. On the aspect of equal protection, CIR v. CA said: Not
insignificantly, RMC 37-93 might have likewise infringed on uniformity

of taxation; a statement that does not amount to a positive

indictment of petitioner for violation of respondents constitutional
right. Even if one were to ascribe a constitutional infringement by RMC
37-93 on the non-uniformity of tax provisions, the nature of the
constitutional transgression falls under Section 28, Article VInot
Section 1, Article IIIof the Constitution.

This Courts own summation in CIR v. CA: All taken, the Court is
convinced that the hastily promulgated RMC 37-93 has fallen short of a
valid and efective administrative issuance, does not lend itself to an
interpretation that the RMC is unconstitutional. Thus, the complaints
reliance on CIR v. CAwhich is cited in, and a copy of which is annexed
to, the complaintas suggestive of a violation of due process and
equal protection, must fail.

Accordingly, from the foregoing discussion, it is obvious that

paragraph 2.02 of respondents complaint loses the needed crutch to
sustain a valid cause of action against the petitioner, for what is left of
the paragraph is merely the allegation that only respondents
Champion, Hope and More cigarettes were reclassified.

If we divest the complaint of its reliance on CIR v. CA, what

remains of respondents cause of action for violation of constitutional
rights would be paragraph 2.01, which reads:

2.01. On or about July 1, 1993, defendant issued

Revenue Memorandum Circular No. 37-93 (hereinafter
referred to as RMC No. 37-93) reclassifying specifically
Champion, Hope and More as locally manufactured
cigarettes bearing a foreign brand. A copy of the

33

aforesaid circular is attached hereto and made an

integral part hereof as ANNEX A. The issuance of a
circular and its implementation resulted in the
deprivation of property of plaintiff. They were done
without due process of law and in violation of the right of
plaintif to the equal protection of the laws. (Italics
supplied.)

But, as intimated above, the bare allegations, done without due

process of law and in violation of the right of plaintiff to the equal
protection of the laws are conclusions of law. They are not
hypothetically admitted in petitioners motion to dismiss and, for
purposes of the motion to dismiss, are not deemed as facts.

the Court of Tax Appeals. Both statutes provide ample remedies to

aggrieved taxpayers; remedies which, in fact, were availed of by the
respondentwithout even having to pay the assessment under protest
as recounted by this Court in CIR v. CA, viz.:

In a letter, dated 19 July 1993, addressed to the

appellate division of the BIR, Fortune Tobacco requested
for a review, reconsideration and recall of RMC 3793. The request was denied on 29 July 1993. The
following day, or on 30 July 1993, the CIR assessed
Fortune Tobacco for ad valorem tax deficiency amounting
to P9,598,334.00.

On 03 August 1993, Fortune Tobacco filed a

petition for review with the CTA. [35]
In Fluor Daniel, Inc. Philippines v. EB. Villarosa & Partners Co.,
Ltd.,[34] this Court declared that the test of sufficiency of facts alleged in
the complaint as constituting a cause of action is whether or not,
admitting the facts alleged, the court could render a valid verdict in
accordance with the prayer of the complaint. In the instant case, since
what remains of the complaint which is hypothetically admitted, is only
the allegation on the reclassification of respondents cigarettes, there
will not be enough facts for the court to render a valid judgment
according to the prayer in the complaint.

Furthermore, in an action for damages under Article 32 of the

Civil Code premised on violation of due process, it may be necessary to
harmonize the Civil Code provision with subsequent legislative
enactments, particularly those related to taxation and tax
collection. Judicial notice may be taken of the provisions of the
National Internal Revenue Code, as amended, and of the law creating

The availability of the remedies against the assailed administrative

action, the opportunity to avail of the same, and actual recourse to
these remedies, contradict the respondents claim of due process
infringement.

At this point, a brief examination

jurisprudence may be instructive.

of

relevant

American

34

42 U.S. Code 1983, a provision incorporated into the Civil Rights

Act of 1871, presents a parallel to our own Article 32 of the Civil Code,
as it states:

Every person who, under color of any statute,

ordinance, regulation, custom, usage, or any State or
Territory, subjects, or causes to be subjected, any citizen
of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at
law, suit in equity or other proper proceeding for redress.

This provision has been employed as the basis of tort suits by many
petitioners intending to win liability cases against government officials
when they violate the constitutional rights of citizens.

Webster Bivens v. Six Unknown Named Agents of Federal Bureau

of Investigation,[36] has emerged as the leading case on the victims
entitlement to recover money damages for any injuries suffered as a
result of flagrant and unconstitutional abuses of administrative
power. In this case, federal narcotics officers broke into Bivens home
at 6:30 a.m. without a search warrant and in the absence of probable
cause. The agents handcuffed Bivens, searched his premises,
employed excessive force, threatened to arrest his family, subjected
him to a visual strip search in the federal court house, fingerprinted,
photographed, interrogated and booked him. When Bivens was
brought before a United States Commissioner, however, charges
against him were dismissed. On the issue of whether violation of the
Fourth Amendment by a federal agent acting under color of authority

gives rise to a cause of action for damages consequent upon his

constitutional conduct, the U.S. Supreme Court held that Bivens is
entitled to recover damages for injuries he suffered as a result of the
agents violation of the Fourth Amendment.

A number of subsequent decisions have upheld Bivens. For

instance, in Scheuer v. Rhodes,[37] a liability suit for money damages
was allowed against Ohio Governor James Rhodes by petitioners who
represented three students who had been killed by Ohio National
Guard
troops
atKent State University as
they
protested
against U.S. involvement in Vietnam. In Wood v. Strickland,[38] local
school board members were sued by high school students who argued
that they had been deprived of constitutional due process rights when
they were expelled from school for having spiked a punch bowl at a
school function without the benefit of a full hearing. In Butz v.
Economou,[39] Economou,
whose
registration
privilege
as
a
commodities futures trader was suspended, without prior warning, by
Secretary of Agriculture Earl Butz, sued on a Bivens action, alleging
that the suspension was aimed at chilling his freedom of expression
right under the First Amendment. A number of other cases[40]with
virtually the same conclusion followed.

However, it is extremely dubious whether a Bivens action

against government tax officials and employees may prosper, if we
consider the pronouncement of the U.S. Supreme Court in Schweiker v.
Chilicky,[41] that a Bivens remedy will not be allowed when other
meaningful safeguards or remedies for the rights of persons situated
as (is the plaintiff) are available. It has also been held that
a Bivens action is not appropriate in the civil service system[42] or in the
military justice system.[43]

35

In Frank Vennes v. An Unknown Number of Unidentified Agents

of the United States of America,[44] petitioner Vennes instituted
aBivens action against agents of the Internal Revenue Service (IRS)
who alleged that he (Vennes) owed $250,000 in tax liability, instituted
a jeopardy assessment, confiscated Vennes business, forced a total
asset sale, and put Vennes out of business, when in fact he owed not a
dime. The U.S. Court of Appeals, Eighth Circuit, ruled:

The district court dismissed these claims on the

ground that a taxpayers remedies under the Internal
Revenue Code preclude such a Bivens action. Vennes
cites to us no contrary authority, and we have found
none. Though the Supreme Court has not addressed this
precise question, it has strongly suggested that the
district court correctly applied Bivens:

When the design of a Government program

suggests that Congress has provided what
it considers adequate remedial mechanisms
for constitutional violations that may occur
in the course of its administration, we have
not created additional Bivens remedies.

xxxx

Congress has provided specific and meaningful

remedies for taxpayers who challenge overzealous tax
assessment and collection activities. A taxpayer may
challenge a jeopardy assessment both administratively
and judicially, and may sue the government for a tax

refund, and have authorized taxpayer actions against

the United States to recover limited damages resulting
from
specific
types
of
misconduct
by
IRS
employees. These carefully crafted legislative remedies
confirm that, in the politically sensitive realm of taxation,
Congresss refusal to permit unrestricted damage action
by taxpayers has not been inadvertent. Thus, the district
court correctly dismissed Venness Bivens claims against
IRS agents for their tax assessment and collection
activities.

In still another Bivens action, instituted by a taxpayer against IRS

employees for alleged violation of due process rights concerning a tax
dispute, the U.S. District Court of Minnesota said:

In addition, the (Tax) Code provides taxpayers with

remedies,
judicial
and
otherwise,
for
correcting and redressing wrongful acts taken by IRS
employees
in
connection
with
any
collection
activities. Although these provisions do not provide
taxpayers with an all-encompassing remedy for wrongful
acts of IRS personnel, the rights established under the
Code illustrate that it provides all sorts of rights against
the
overzealous
officialdom,
including,
most
fundamentally, the right to sue the government for a
refund if forced to overpay taxes, and it would make the
collection of taxes chaotic if a taxpayer could bypass the
remedies provided by Congress simply by bringing a
damage suit against IRS employees.[45]

36

American jurisprudence obviously validates the contention of the

petitioner.

WHEREFORE, premises considered, we GRANT petitioners

motion for reconsideration of the June 19, 2007 Decision
and DENYrespondents motion for reconsideration of the June 25,
2008 Resolution. Civil Case No. CV-97-341-MK, pending with
the Regional Trial Courtof Marikina City, is DISMISSED.

Finally, we invite attention to Section 227, Republic Act No. 8424

(Tax Reform Act of 1997), which provides:

Section
227. Satisfaction
of
Judgment
Recovered Against any Internal Revenue Officer. When
an action is brought against any Internal Revenue officer
to recover damages by reason of any act done in the
performance of official duty, and the Commissioner is
notified of such action in time to make defense against
the same, through the Solicitor General, any judgment,
damages or costs recovered in such action shall be
satisfied by the Commissioner, upon approval of the
Secretary of Finance, or if the same be paid by the
person sued shall be repaid or reimbursed to him.

SO ORDERED.

CASE NO. 5

OFFICE OF THE COURT ADMINISTRATOR VS. EMMA ANNIE

ARAFILES
No such judgment, damages or costs shall be paid
or reimbursed in behalf of a person who has acted
negligently or in bad faith, or with willful oppression.

Because the respondents complaint does not impute negligence or

bad faith to the petitioner, any money judgment by the trial court
against her will have to be assumed by the Republic of the Philippines.
As such, the complaint is in the nature of a suit against the State. [46]

The Leave Division of the Office of the Court Administrator

submitted a Report of Tardiness on December 6, 2007 stating that Ms.
Emma Annie D. Arafiles, Court Legal Researcher, Metropolitan Trial
Court (MeTC), Branch 48, Pasay City, incurred tardiness in September
and October 2007. She was tardy 11 times in September and 16 times
in October. The Report was docketed as A.M. No. 08-107-MeTC
(Habitual Tardiness of Emma Annie D. Arafiles, MeTC, Branch
48, Pasay City.)

37

Court
Administrator
Zenaida
N.
Elepao
(through
a
1st Indorsement dated January 14, 2008) required Ms. Arafiles to
comment on the report within ten (10) days from receipt.
Ms. Arafiles complied with a letter-comment dated January 30,
2008. She admitted the tardiness and gave various explanations,
specifically: that she had no maid; that she had to attend to the needs
of her school children ages eight (8) and two (2) years; and that she
was hypertensive. She asked for human consideration and
apologized for her tardiness, promising that she would no longer be
tardy in the future.
Court Administrator Elepao evaluated Ms. Arafiles explanation
and found no justification for her habitual tardiness. The Court
Administrator recommended (1) that the Report be redocketed as a
regular administrative matter, and (2) that Ms. Arafiles be given a
reprimand with a warning that a repetition of the same offense would
warrant the imposition of a more severe penalty.
The law requires all government officials and employees to
render not less than eight (8) hours of work per day for five (5) days a
week, or a total of forty (40) hours of work per week, exclusive of time
for lunch. As a rule, these hours are from eight (8) oclock in the
morning to five (5) oclock in the afternoon.[1]
Under CSC Memorandum Circular No. 14, S. 1991, [2] an officer or
employee of the civil service is considered habitually tardy if he incurs
tardiness, regardless of the number of minutes, ten (10) times a month
for at least two (2) months in a semester or for at least two (2)
consecutive months during the year.
We have previously ruled that non-office obligations, household
chores, traffic problems, and health, domestic and financial concerns
are not
sufficient reasons to excuse or justify habitual tardiness. [3] These are
the types of reasons Ms. Arafiles gave; hence, we cannot free her from
liability for her infractions.
Time and again, we have reminded officials and employees of
the Judiciary that by reason of the nature and functions of their office,

they must be role models in the faithful observance of the

constitutional principle that public office is a public trust. A way of
doing this is through the strict observance of prescribed office hours
and the efficient use of every working moment, if only to give back the
true worth of what the Government, and ultimately, the people, pay in
maintaining the Judiciary.[4] In short, in the public service, punctuality
is a virtue, absenteeism and tardiness are impermissible.[5]
We agree with Court Administrator Elepao that (B)y being
habitually tardy, she [respondent] has fallen short of the stringent
standard conduct demanded from everyone connected with the
administration of justice and thus merits the prescribed
penalty. Under Section 52(c)(4), Rule VI of CSC Memorandum Circular
No. 19, Series of 1999, habitual tardiness is penalized as follows: first
offense, reprimand; second offense, suspension for 1-30 days; and
third offense, dismissal from the service.
WHEREFORE, we find respondent Ms. Emma Annie D. Arafiles,
Court Legal Researcher, MeTC, Branch 48, Pasay City, GUILTY of
habitual tardiness. Pursuant to Section 52(c)(4), Rule VI of CSC
Memorandum Circular No. 19, Series of 1999, this first offense merits
the penalty of REPRIMAND with the WARNING that a more severe
penalty shall be imposed for the repetition of the same or a similar
offense in the future.
SO ORDERED.

CASE NO. 6
RUBEN GALERO VS. COURT OF APPEALS
For review is the Decision [1] of the Court of Appeals (CA) in CAG.R. SP No. 57397 dated April 26, 2001 affirming the Resolution [2] of
the Office of the Ombudsman (Visayas) in OMB-VIS-ADM-97-0565
finding petitioner Ruben S. Galero guilty of Dishonesty, Falsifying
Official Documents and Causing Undue Injury to the Government and
imposing the penalty of dismissal from service, forfeiture of all benefits
and perpetual disqualification to hold public office. Likewise assailed is

38

the CAs Resolution[3] dated December 21, 2001 denying his motion for
reconsideration.
The factual and procedural antecedents follow:
On January 17, 1997, Rogelio Caigoy (Mr. Caigoy), then the
resident Ombudsman of the Philippine Ports Authority Port
Management Office (PPA-PMO), Pulupandan, Negros Occidental,
received an anonymous letter from concerned citizens, reporting that
Robert Geocadin (Mr. Geocadin), a security guard of United Field Sea
Watchmen and Checkers Agency (UFSWCA), officially assigned at the
National Power Corporation (Napocor) in Bacolod City, at the same
time submitted a Daily Time Record (DTR) at PPA-PMO but did not
report to the said office. [4] He received a second anonymous letter
on December 16, 1997 stating that Mr. Geocadin was receiving double
salary from Napocor and PPA-PMO, and implicating the petitioner, who
was then the Acting Station Commander, Port Police Division, and
Winfred Elizalde (Mr. Elizalde), the Port Manager, both of the PPAPMO. The said letter specifically claimed that petitioner and Mr.
Elizalde were each receiving shares in the security guards salary. [5] In
short, the letters charged that Mr. Geocadin was a ghost employee.
On the strength of the two anonymous letters, Mr. Caigoy
recommended the filing of criminal and administrative charges against
petitioner and Mr. Elizalde in their capacities as Acting Port Police
Division
Commander
and
Port
Manager,
respectively. [6] The
administrative case was docketed as OMB-VIS-ADM-97-0565 and was
assigned to Graft Investigation Officer I Helen Catacutan-Acas.
From the affidavits and counter-affidavits of the parties and
witnesses, as well as their testimonies and the documentary evidence
presented, it appears that Mr. Geocadin was officially assigned at the
Napocor with the following areas of supervision:
1.

Bacolod Sub-Station in Mansilingan;

2.

Engineering Office in Bacolod City;

3.

Tumonton Cable Station which is more or

less twenty-two (22) km. away from Bacolod
Station;

4.

Bulata Sipalay small stockyard which is

more or less 20 km. away from Bacolod City.[7]

At Napocor, petitioner was required to report for duty from 8:00 in the
morning until 4:00 in the afternoon, from April 16, 1996 until April 16,
1997. Covering
almost
the
same
period
from April
16,
1996 until November 30, 1996, Mr. Geocadin, who was also appointed
as the Station Commander of the security guards of PPA-PMO, filled up
Civil Service Form No. 48 (DTR) allegedly for services rendered for PPAPMO from8:00 in the morning until 5:00 in the afternoon. The DTRs he
submitted for seven (7) months were certified correct by petitioner
being Mr. Geocadins immediate superior.[8]
For his part, petitioner denied that Mr. Geocadin was a ghost
security guard. He alleged that Mr. Geocadin was designated by
UFSWCA as Detachment Commander who was tasked to supervise the
security guards posted at PPA-PMO Bacolod City and Pulupandan and
to inspect their security equipment. Apart from these, Mr. Geocadin
was assigned to issue mission orders; prepare duty schedules; and act
as paymaster and liaison officer. He, likewise, did clerical work and
prepared memoranda on disciplinary actions taken against erring
security guards.[9] To justify his lack of knowledge of Mr. Geocadins
fraudulent acts, petitioner explained that because PMO-Pulupandan
was then in the process of reorganization, Mr. Geocadin was initially
tasked to conduct security inspection of the posts in Bacolod City and
random inspections in other stations.[10] In other words, petitioner was
not expected to see Mr. Geocadin the whole day as he could be in
another station. Mr. Elizalde, on the other hand, claimed that
whenever he needed Mr. Geocadin, the latter was always available.
During the hearing of the case, Mr. Geocadin admitted that he
was assigned both to Napocor and PPA-PMO with 16-hour duty
everyday.[11]
On May 31, 1999, the Office of the Ombudsman (Visayas) issued
a Resolution[12] against petitioner, the pertinent portion of which reads:
WHEREFORE, in the light of all the foregoing, this
Office finds Ruben Galero guilty of Dishonesty, for

39

Falsifying Official Documents, and for causing undue

injury to the government, thus metes upon him, the
penalty of DISMISSAL FROM SERVICE, FORFEITURE OF
ALL BENEFITS, and PERPETUAL DISQUALIFICATION TO
PUBLIC OFFICE in accordance with Memorandum Circular
No. 30, Series of 1989 of the Civil Service Commission. [13]

I.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
AFFIRMING THE FINDINGS OF THE OMBUDSMAN WHICH
FINDING IS GROUNDED ENTIRELY ON SPECULATION,
SURMISES OR CONJECTURES.

SO RESOLVED.
The Office of the Ombudsman declared that Mr. Geocadin was
officially assigned at Napocor and was not tied to only one post as he
was then tasked to supervise four stations. Making use of this set-up
to his advantage, Mr. Geocadin took undeclared undertime with
Napocor which enabled him to accept his appointment with PPAPMO. Though it may have been possible for Mr. Geocadin to accept
dual positions, it is impossible for him to be at different work stations
at the same time, as reflected in his DTRs both with Napocor and PPAPMO. Considering that Mr. Geocadin repeatedly committed the
fraudulent act for a continuous period of seven (7) months, the Office
of the Ombudsman concluded that the petitioner, being his immediate
superior who verified his DTRs, was aware of such irregularity.
[14]
Hence, the extreme penalty of dismissal as to the petitioner. Mr.
Elizalde, on the other hand, was exonerated for lack of evidence to
show conspiracy. Petitioners motion for reconsideration was also
denied on December 10, 1999.[15]
Petitioner likewise failed to obtain a favorable judgment from the
CA when his petition for review was denied. [16] The appellate court
declared that petitioners verification of Mr. Geocadins DTRs was
sufficient to hold him guilty as charged. His verification, according to
the court, enabled Mr. Geocadin to receive from the government such
amounts not due him. The court did not give credence to the affidavits
of some security guards that Mr. Geocadin was indeed their station
commander. Neither did the appellate court consider the affidavit of
retraction executed by one of the witnesses. [17] In conclusion, the court
said that there was substantial evidence to establish petitioners guilt.
Aggrieved, petitioner comes before this Court in this petition for
review raising the following errors:

II.
THE HONORABLE COURT OF APPEALS FAILS (SIC) TO
NOTICE CERTAIN RELEVANT FACTS WHICH, IF PROPERLY
CONSIDERED, WILL JUSTIFY A DIFFERENT CONCLUSION.
III.
THE FINDINGS OF THE HONORABLE COURT OF APPEALS
AS TO THE VALIDITY OF PETITIONERS DISMISSAL FROM
SERVICE ARE CONTRADICTED BY THE EVIDENCE ON
RECORD.[18]
Before we rule on these assigned errors, we note that petitioner
belatedly questioned in his Reply[19] the scope of the Ombudsmans
power and authority to dismiss government employees. If only to
erase doubts as to the Ombudsmans power to impose the penalty of
dismissal, we would like to stress the well-settled principle laid down in
the two Office of the Ombudsman v. Court of Appeals [20] cases and
in Estarija v. Ranada.[21]
The powers, functions and duties of the Ombudsman are set
forth in Section 15(3) of Republic Act No. 6770 (R.A. 6770) otherwise
known as the Ombudsman Act of 1989 which substantially restates
Section 13(3),[22] Article XI of the 1987 Constitution, thus:
SEC. 15. Powers, Functions and Duties. The
Office of the Ombudsman shall have the following
powers, functions and duties:
xxxx

40

(3) Direct the officer concerned to take appropriate

action against a public officer or employee at fault or who
neglects to perform an act or discharge a duty required
by law, and recommend his removal, suspension,
demotion, fine, censure, or prosecution, and ensure
compliance therewith; or enforce its disciplinary authority
as provided in Section 21 of this Act; Provided, That the
refusal by any officer without just cause to comply with
an order of the Ombudsman to remove, suspend,
demote, fine, censure or prosecute an officer or
employee who is at fault or who neglects to perform an
act or discharge a duty required by law shall be a ground
for disciplinary action against said officer.[23]
The restrictive interpretation of the word recommend had long
been rejected by this Court for being inconsistent with the wisdom and
spirit behind the creation of the Office of the Ombudsman. [24] Instead,
to be faithful to the constitutional objective, the word has been
construed to mean that the implementation of the Ombudsmans order
of dismissal, suspension, etc., is mandatory but shall be coursed
through the proper officer.[25]
We have already ruled that although the Constitution lays down
the specific powers of the Ombudsman, it likewise allows the
legislature to enact a law that would grant added powers to the
Ombudsman. To be sure, the provisions of R.A. 6770, taken together,
reveal the manifest intent of the lawmakers to bestow the Office of the
Ombudsman full administrative disciplinary authority. Specifically, it is
given the authority to receive complaints, conduct investigations, hold
hearings in accordance with its rules of procedure, summon witnesses
and require the production of documents, place under preventive
suspension public officers and employees pending an investigation,
determine the appropriate penalty imposable on erring public officers
or employees as warranted by the evidence, and necessarily, impose
the said penalty.[26] Clearly, the Office of the Ombudsman was given
teeth to render this constitutional body not merely functional but also
effective.[27]
We now proceed to the meat of this petition on the validity of
petitioners dismissal from service.

The CA affirmed the Office of the Ombudsmans conclusion that

petitioner was guilty of dishonesty for falsifying official documents and
causing undue injury to the government. Both the CA and the
Ombudsman anchored such finding on the alleged collusion between
petitioner and Mr. Geocadin which enabled the latter to receive
compensation from the government for services not actually rendered.
We would like to reiterate at this point the undisputed facts
material to the determination of petitioners guilt. First, per UFSWCA
records, Mr. Geocadin was officially assigned at the Napocor,
supervising the security guards of four stations. Second, though
earlier branded as a ghost employee, Mr. Geocadin was established to
be the Station Commander of all the security guards assigned at the
PPA-PMO. Third, as Acting Station Commander, Port Police Division,
petitioner was the immediate superior of Mr. Geocadin whose duty was
to supervise the security guards and to certify to the truth of the
entries they made in their DTRs. Fourth, Mr. Geocadin was an
employee of UFSWCA which had a contract with the government for
security services. Fifth, the payment of the security guards salaries
was based on the DTRs they prepared as certified by
petitioner. Lastly, Mr. Geocadins DTRs submitted to Napocor and PPA
show that he was reporting for duty at the two offices at the same
time, which is physically impossible.
Mr. Geocadins assignment and actual service at the PPA-PMO
Pulupandan was sufficiently established. This is shown by the
communications he signed in his capacity as station commander. He
was not, therefore, a ghost employee as initially claimed by the
concerned citizens. This is bolstered by the Office of the
Ombudsmans finding that the coverage of Mr. Geocadins assignment
with Napocor, where he was not tied to his post, enabled him to hold
such two positions.[28] Clearly, the Office of the Ombudsman itself
recognized that Mr. Geocadin rendered service at the PPA. Whether he
rendered the 8-hour service as reflected in his DTR is another matter
which will be discussed below.
It is well to note that Mr. Geocadin was not a government
employee, having been employed only by UFSWCA, a private company
supplying security services for both Napocor and PPA. He was,
however, required to submit his DTR which the government used to

41

verify the correctness of UFSWCAs billing with PPA-PMO. Like any

other DTR, Mr. Geocadins DTR was certified by him as reflecting his
true attendance at the office, and verified by petitioner, the latter
being his immediate supervisor. The submission of another DTR
stating that Mr. Geocadin was rendering service at the Napocor at
exactly the same time on the same dates makes his DTR with PPA
false. As pointed out by the Office of the Ombudsman, the fact
remains that it would be physically impossible for him to be
simultaneously rendering services with Napocor and PPA-PMO as
reflected in his DTRs.[29]
In finding petitioner guilty of dishonesty, falsification of
document and causing injury to the government, the Office of the
Ombudsman, as affirmed by the CA, ratiocinated, thus:
It is the finding of this office that respondent Geocadin
cannot possibly do it alone without [the] knowledge and
consent of his most immediate superior Ruben
Galero. It is unthinkable for this fact to be kept known by
respondent Geocadin alone, because it has been
repeatedly done by him for a period of about seven (7)
months. Thus, respondent Ruben Galero cannot feign of
having no knowledge on what Geocadin was doing during
said period because the latter is under his direct and
immediate supervision. Accordingly, a government
official or officer is presumed to have knowledge of the
commission of any irregularity or offense, when the
irregularities or illegal acts have been repeatedly or
regularly committed within his official area of jurisdiction.
[30]

While not totally exonerating petitioner from the charges filed

against him, a modification of the nature of petitioners administrative
liability as well as the penalty that was correspondingly imposed, is in
order. The only basis of petitioners liability for dishonesty, etc., was
the presumed collusion between him and Mr. Geocadin. This stemmed
from the unproven fact that Mr. Geocadin was a ghost employee and
that petitioner was receiving part of his (Mr. Geocadin) salary. There
was nothing in the record which establishes petitioners collusion or
conspiracy with Mr. Geocadin to defraud the government. For the

purpose of sustaining the Ombudsmans findings, it would have been

necessary that the alleged conspiracy or collusion be established by
independent, competent and substantial evidence. Since the records
are bereft of this evidence, what remains is only petitioners
verification of Mr. Geocadins false DTR. With this as sole basis,
petitioner can be held administratively liable only for simple neglect of
duty --- not for dishonesty, for falsification of official document, or for
causing undue injury to the government.
Simple neglect of duty is defined as the failure to give proper
attention to a task expected from an employee resulting from either
carelessness or indifference.[31] Had petitioner performed the task
required of him, that is, to monitor the employees attendance, he
would have discovered that indeed Mr. Geocadin was dividing his time
between PPA and Napocor. Though not required to know every detail
of his subordinates whereabouts, petitioner should have implemented
measures to make sure that the government was not defrauded. As he
was required to sign Mr. Geocadins DTR, petitioner should have
verified the truthfulness of the entries therein. Indeed, petitioner
neglected his duty which caused prejudice to the government in that
Mr. Geocadin was paid twice for his services. These facts, taken
together, are sufficient to make petitioner liable for simple neglect of
duty, but insufficient to make him answer for charges of dishonesty
and falsification of document.
This is not the first time that we hold an immediate superior
administratively liable for neglect of duty for obvious lack of care in
verifying his subordinates DTR. In Re: Anonymous Complaint Against
Ms.
Rowena
Marinduque,
Assigned
at
PHILJA
Devt
Center, Tagaytay City[32]and Amane v. Atty. Mendoza-Arce,[33] the Court
found the Branch Clerk of Court, the Presiding Judge and the OIC Philja
Director liable because of their acts of tolerating their subordinates
absences. In the said cases, which involved court employees, the
Court concluded that there was a relaxation and too much leniency in
the implementation of the rules on attendance which thus resulted in
the unauthorized absences of employees not being reflected in their
DTRs. The Court said:
We find the inclination of the respondent judge to
leniency in the administrative supervision of his
employees an undesirable trait. Oftentimes, such

42

leniency provides the court employees the opportunity to

commit minor transgressions of the laws and slight
breaches of official duty ultimately leading to vicious
delinquencies. The respondent judge should constantly
keep a watchful eye on the conduct of his employees. He
should realize that big start small. His constant scrutiny
of the behavior of his employees would deter any abuse
on the part of the latter in the exercise of their
duties. Then, his subordinates would know that any
misdemeanor will not remain unchecked.[34]

the penalty of suspension without pay for one (1) month and one (1)
day, instead of dismissal from service, forfeiture of all benefits and
perpetual disqualification from public office.
SO ORDERED.
x-----------------------------------------------------x

CASE NO. 7
Applying the aforesaid pronouncement by analogy, petitioner in
the instant case was indeed lenient in the implementation of the rules
on attendance. Mr. Geocadin took advantage of this leniency by taking
unauthorized undertime with PPA in order to attend to his duties with
Napocor. Since such act remained unchecked for almost seven (7)
months, Mr. Geocadin was not deterred from continuing his unlawful
act, to the prejudice of the government and the taxpayers.
It must be remembered that public service requires integrity
and discipline. For this reason, public servants must exhibit at all times
the highest sense of honesty and dedication to duty. By the very
nature of their duties and responsibilities, government employees must
faithfully adhere to, hold sacred and render inviolate the constitutional
principle that a public office is a public trust; that all public officers and
employees must at all times be accountable to the people, serve them
with utmost responsibility, integrity, loyalty and efficiency. [35]
As to the proper penalty imposable, simple neglect of duty is
classified as a less grave offense punishable by suspension without pay
for one (1) month and one (1) day to six (6) months. [36] The
circumstances surrounding the instant case, considering that it
appears to be petitioners first offense, warrant the imposition of
suspension without pay for one (1) month and one (1) day.
WHEREFORE, the Decision of the Court of Appeals dated April
26, 2001 and its Resolution dated December 21, 2001 in CA-G.R. SP
No. 57397 are hereby MODIFIED. We find petitioner GUILTY of Simple
Neglect of Duty instead of Dishonesty, Falsification of Official
Documents, Causing Undue Injury to the Government, and is meted

MANICAM BASCASAR VS. CIVIL SERVICE COMMISSION

DECISION
NACHURA, J.:
Petitioner Manicam M. Bacsasar (petitioner) filed this Petition
for Certiorari seeking to nullify the Resolutions dated June 26,
2007[1]and October 2, 2007[2] of the Court of Appeals (CA) in CA-G.R. SP
No. 01508.
On May 7, 2003, petitioner was charged with dishonesty by the
Civil Service Commission-Autonomous Region in Muslim Mindanao
(CSC-ARMM), committed as follows:
1.
That in your Personal Data Sheet (PDS),
dated February 20, 2001, you indicated that you passed
the Career Service Professional examination onNovember
28, 2000 with a rating of 87.54% conducted in Quezon
City;

43

2.
That the same eligibility was used to support the
issuance of an appointment in your favor by Mayor Hadji
Ali MB. Munder of Bubong, Lanao del Sur as Municipal
Assessor under Permanent status; and

Bacsasar. Hence, it cannot be denied that Bacsasar is

guilty of dishonesty.
The CSC disposed, thus:

3.
That a verification from Civil Service Regional
Office National Capital Region in Quezon City yielded a
response that your name is not included in the Master
List
of
passing
and
failing
list
of
NCR-CSP
[3]
dated November 28, 2000.
In her answer, petitioner denied the charge. She averred that
on October 15, 2002, a man with the name Tingcap Pandi, who is now
deceased, approached her and convinced her to obtain her Civil
Service eligibility from him without need of taking an examination. She
admitted that she used the said eligibility to support the issuance of a
permanent appointment, but averred that she was not aware that the
eligibility issued to her was spurious. It was only after verification with
the CSC-NCR that she learned the falsity of her eligibility. [4]
On October 6, 2003, petitioner informed the CSC-ARMM that she
was waiving her right to a formal investigation. On February 9, 2004,
CSC-ARMM rendered a decision[5] finding petitioner guilty of dishonesty
and imposing upon her a penalty of dismissal from service with all its
accessory penalties.
Petitioner appealed to the CSC. On December 14, 2005, the CSC
issued Resolution No. 051885 [6] dismissing the appeal. Sustaining the
CSC-ARMM, the CSC held:
[S]ubstantial evidence has been established that
Bacsasar is guilty of dishonesty by misrepresenting in her
PDS that she passed the Career Service Professional
examination given on November 28, 2000 with a rating of
87.54% in Quezon City. Notably, the certification of CSCNCR that Bacsasars name is not included in the Master
List of passing and failing examinees during the NCR-CSP
examination conducted on November 28, 2000 is
sufficient to prove the charge of dishonesty against

WHEREFORE, the appeal of Manicam M. Bacsasar

is
hereby DISMISSED. Accordingly,
the
Decision
dated February 9, 2004 of the CSC-ARMM, finding her
guilty of Dishonesty for which she was meted out a
penalty of dismissal from service including the accessory
penalties of forfeiture of retirement benefits, cancellation
of eligibility, and perpetual disqualification from
reemployment in the government service, is AFFIRMED.
[7]

Petitioner filed a motion for reconsideration, but it was denied by

the CSC in its Resolution No. 062250 [8] dated December 19, 2006.
Petitioner
received
CSC
Resolution
062250
on January
8,
2007. On January 23, 2007, she requested a thirty day-extension of
time, or untilFebruary 22, 2007, to file a petition for review. Petitioner,
however, failed to file the intended petition within the extended period.
[9]

On February 27, 2007, petitioner filed a Motion to Admit (the

attached Petition).[10]
On June 26, 2007, the CA dismissed the petition for having been
tardily filed and for lack of merit. It held that the failure of the
petitioner to file the intended petition for review within the extended
period rendered the CSC decision final and executory. Accordingly, it
had been divested of jurisdiction to entertain the petition. The CA also
affirmed the CSC finding that there is substantial evidence on record to
establish petitioners culpability. A motion for reconsideration was
filed, but the CA denied it on October 2, 2007.
Hence, this recourse by petitioner theorizing that:

44

1.
THE ASSAILED RESOLUTIONS DATED JUNE 26,
2007 AND OCTOBER 2, 2007 WERE ISSUED IN VIOLATION
OF LAW OR (sic) DUE PROCESS;
2.
THE HONORABLE COURT OF APPEALS COMMITTED
A REVERSIBLE ERROR IN AFFIRMING THE DECISION
DATED FEBRUARY 9, 2004 OF THE CSC-ARMM REGIONAL
DIRECTOR FINDING PETITIONER MANICAM M. BACSASAR
GUILTY OF DISHONESTY;
3.
THE HONORABLE COURT OF APPEALS ERRED IN
NOT DISMISSING THE FORMAL CHARGE AGAINST THE
PETITIONER.[11]
We deny the petition.
Admittedly, petitioner received CSC Resolution No. 062250
dated December 19, 2006 on January 8, 2007. However, she filed her
appeal with the CA only on February 27, 2007.[12] Clearly, her petition
for review with the CA was tardily filed. The CSC resolutions,
therefore, attained finality.
As we explained in Emerlinda S. Talento v. Hon. Remegio M.
Escalada, Jr.:[13]
The perfection of an appeal in the manner and
within the period prescribed by law is mandatory. Failure
to conform to the rules regarding appeal will render the
judgment final and executory and beyond the power of
the Court's review. Jurisprudence mandates that when a
decision becomes final and executory, it becomes valid
and binding upon the parties and their successors-ininterest. Such decision or order can no longer be
disturbed or reopened no matter how erroneous it may
have been.
Accordingly, the CA correctly dismissed the petition as it no longer had
any jurisdiction to alter or nullify the CSC resolutions.

But, if only to show that the petition is doomed to fail anyway,

we will discuss the issues raised by the petitioner.
Petitioner asserts denial of due process because her case was
decided without a formal investigation. She claims that she was
denied opportunity to present evidence, to confront the witnesses
against her, and to object to the evidence adduced against her.
We are not convinced.
To begin with, petitioner waived her right to a formal
investigation on October 6, 2003.[14] Thus, she cannot decry that she
was denied her right to a formal investigation.
Second, records show that petitioner never raised this issue in
the proceedings below. In the proceedings before the CSC and the CA,
petitioners defense zeroed in on her alleged lack of knowledge that
her eligibility was spurious. It is too late in the day for petitioner to
raise it for the first time in this petition.
As a rule, no question will be entertained on appeal unless it has
been raised in the court below. Points of law, theories, issues and
arguments not brought to the attention of the lower court ordinarily
will not be considered by a reviewing court, because they cannot be
raised for the first time at that late stage. Basic considerations of due
process underlie this rule. [15]
Thirdly, petitioner was given ample opportunity to defend her
case, contrary to what she wants to portray.
It must be remembered that the essence of due process does
not necessarily require a hearing, but simply a reasonable opportunity
or right to be heard or, as applied to administrative proceedings, an
opportunity to explain one's side.[16]
Due process in the administrative context does not require trialtype proceedings similar to those in the courts of justice. A formal trialtype hearing is not at all times and in all instances essential to due
process. What is simply required is that the party concerned is given
due notice and is afforded an opportunity or right to be heard. It is
enough that the parties are given a fair and reasonable opportunity to

45

explain their respective sides of the controversy and to present

evidence on which a fair decision can be made. [17] To be heard does not
only mean verbal arguments in court; one may also be heard through
pleadings. Where opportunity to be heard, either through oral
arguments or through pleadings, is accorded, there is no denial of
procedural due process.[18] In other words, it is not legally
objectionable for an administrative agency to resolve a case based
solely on position papers, affidavits or documentary evidence
submitted by the parties, as affidavits of witnesses may take the place
of their direct testimonies.[19]

Indisputably, when petitioner applied for the position of

Municipal Assessor, she submitted a Certificate of Eligibility
purportedly issued by the CSC certifying that she passed the Career
Service Professional examination on November 28, 2000 with a rating
of 87.54%. She also submitted a PDS dated February 21, 2001 stating
that she passed the Career Service Professional examination
on November 28, 2001 with a rating of 87.54%. Upon verification, it
was found that her Certificate of Eligibility was spurious. Clearly, there
is sufficient evidence on record to establish that petitioner is, indeed,
guilty of dishonesty.

Records show that petitioner answered the charges against

her. She even interposed an appeal from the decision of the CSCARMM to the CSC, and then to the CA. Clearly, she was afforded an
opportunity to be heard through her pleadings; hence, her right to due
process was not impaired.

We cannot accept petitioners simplistic claim that she used the

fake eligibility in good faith because she was not aware that the same
was spurious.

Petitioner also ascribes reversible error on the part of the CA in

not dismissing the case against her. Petitioner maintains that she was
not aware that her eligibility was spurious. She was made to believe
by Tingcap Pandi that the said eligibility was genuine. She insists that
there is no substantial evidence to prove her guilt of dishonesty.
The issue of whether petitioners guilt for dishonesty is
supported by substantial evidence is factual in nature, the
determination of which is beyond the ambit of this Court. Our task in
an appeal by petition for review on certiorari as a jurisdictional matter
is limited to reviewing errors of law that might have been committed
by the CA.[20] The Supreme Court cannot be tasked to go over the
proofs presented by the petitioner in the proceedings below and
analyze, assess and weigh them to ascertain if the court a quo and the
appellate court were correct in their appreciation of the evidence.
[21]
More so, in the instant case, where the CA affirmed the factual
findings of the CSC. Although the rule admits of several exceptions,
none of them are in point in this case.
Petitioner was charged with dishonesty which is defined as the
concealment or distortion of truth in a matter of fact relevant to ones
office or connected with the performance of his duty.[22]

Good faith is ordinarily used to describe that state of mind

denoting honesty of intention and freedom from knowledge of
circumstances which ought to put the holder upon inquiry; an honest
intention to abstain from taking any unconscientious advantage of
another, even through technicalities of law, together with absence of
all information, notice, or benefit or belief of facts which render
transaction unconscientious. In short, good faith is actually a question
of intention. Although this is something internal, we can ascertain a
persons intention not from his own protestation of good faith, which is
self-serving, but from evidence of his conduct and outward acts.[23]
In this light, we quote with approval the following disquisition of
the CA rejecting petitioners protestation of good faith:
[P]etitioner, from her actuations, cannot be considered to
have acted in good faith when she stated in her Personal
Data Sheet that she passed the Career Service
Professional examination on the basis of a spurious
document furnished her by a certain Tingcap Pandi. We
carefully noted her acts which are inconsistent with her
protestation of good faith, thus:
First, she obviously knew that Tingcap Pandi, if
indeed, he was existing, was a fixer, because any
aspirant for employment in the government service, such
as petitioner, knows well that civil service eligibility

46

cannot be obtained without taking and passing an

appropriate civil service examination.

therefore committed no reversible error in upholding petitioners

dismissal.

Second, petitioner claims she relied on the

assurance of Tingcap Pandi, who approached xxx and
convinced and persuaded her to file CSC eligibility
through him xxx without an examination. Amazingly,
petitioner believed an unbelievable tale. Anyone who
wants to be appointed a[s] Municipal Assessor, a position
of grave responsibility, cannot be recklessly credulous or
downright gullible. As we stressed earlier, a person is
considered in good faith not only when he has shown an
honest
intention
but
that
he
must
also
be free from knowledge of circumstances which ought to
put him on inquiry. To be approached by a person
offering an unusual service should have put petitioner
on guard as to induce her to scrutinize the integrity of the
offer.

WHEREFORE, the petition is DENIED. The assailed Resolutions

of the Court of Appeals in CA-G.R. SP No. 01508 are AFFIRMED.

Third, petitioner did not take any step to

determine from the CSC the authenticity of the document
procured for her by the fixer, which turned out to be
spurious, before using it as basis for indicating in her PDS
that she passed the civil service professional
examination. This is (sic) aberrant behavior of the
petitioner is contrary to good faith.
Fourth, without verifying with the CSC the
authority of Tingcap Pandi in offering the unusual
service, petitioner proceeded to use the spurious
document in support of her appointment as Municipal
Assessor.[24]
It must be stressed that dishonesty is a serious offense, which
reflects on the person's character and exposes the moral decay which
virtually destroys his honor, virtue and integrity. Its immense
debilitating effect on the government service cannot be overemphasized. Under Civil Service regulations, the use of fake or
spurious civil service eligibility is regarded as dishonesty and grave
misconduct, punishable by dismissal from the service. [25] The CA

SO ORDERED.

x-----------------------------------------------------x

CASE NO. 8

RASH C. ROQUE VS. COURT OF APPEALS

This is a petition for review on certiorari[1] of the Decision of the

Court of Appeals in CA-G.R. SP No. 93349 promulgated on May 29,
2007, and its Resolution promulgated on August 9, 2007. The Decision
of the Court of Appeals affirmed the Resolutions of the Civil Service
Commission (CSC) dated July 20, 2004 and December 13, 2005,
dismissing petitioner Rash C. Roque from the public service for grave
misconduct.
This case arose from an alleged anomaly in the procurement of
various supplies, materials or equipment for the Fourth Quarter of
Calendar Year (CY) 2002 of the Bureau of Fire Protection-National
Capital Region (BFP-NCR).
On December 16, 2002, the BFP-NCR Prequalifications, Bids and
Awards Committee (PBAC) issued several resolutions supposedly
pursuant to a sealed canvass bidding, recommending the award and
contract to deliver various supplies, materials and equipment to the
47

purported winning bidders. Petitioner Roque, as the Regional Director

of the BFP-NCR, approved the awards and issued the corresponding
Notices of Award to the following bidders:
1.

Rakish General Merchandise for P420,000

worth of battery solution and for P475,900.15
worth of barricade tapes;

2.

Mitoni Business Ventures for P473,661.82

worth of computer units and spare parts and
for P477,989.28 worth of various office supplies;

3.

Rich River Commercial

worth of Good Year tires;

for P478,282.91

4.

Lubhag Enterprises for P208,707.25 worth

of various electrical supplies and for P405,235.98
worth of janitorial supplies;

5.

A.
Rouge
Printing
Corporation
for P459,798.55 worth of computer units and
accessories; and

6.

Miralles Trading for P473,695.04 worth of

computer supplies.[2]

Chief Inspector Rolando Biazon of the Logistics Section issued

the corresponding Purchase Orders to the suppliers after he inspected
and accepted the delivery of supplies. The checks in payments for
these supplies were signed by petitioner and the Chief of Finance
Service Unit, Danilo dela Pea, and were given to the suppliers who, in
turn, negotiated said checks with the Land Bank of the Philippines,
Cubao Branch, onDecember 27, 2002, January 3, 2003 and January 6,
2003.
On January 2, 2003, complainants Supt. Ariel A. Barayuga,
District Fire Marshal; Supt. Ramon O. Giron, Chief of Administrative
Branch; and Ruben U. Pascua, Regional Supply Accountable Officer,
who are all officers of the BFP-NCR, reported to Fire Chief Francisco

Senot that there was an anomaly in the purchase of supplies for the
fourth quarter of CY 2002.
The complainants alleged that the BFP-NCR Regional Office
received an Advice Sub-Allotment and a Notice of Transfer of Cash
Allocation from the BFP Central Office only sometime in the second
week of December 2002, but by December 27, 2002, the bidding was
completed and the purported winning bidders were able to encash
their checks in payment of their products.
They further alleged that SFO2 Cabungcal, OIC Regional Supply
Accountable Officer, was authorized to sign the documents relative to
the procurement of supplies for the fourth quarter of CY 2002, in lieu of
complainant Pascua. Moreover, complainants were intrigued by the
fact that the fourth quarter operational support fund was released to
BFP-NCR ahead of the third quarter operational fund, which remained
unliquidated.
Lastly, complainants alleged that petitioner authorized Biazon to
pay in advance the funds for minor maintenance of fire trucks in the
amount of more or less P750,000.
Fire Chief Senot immediately acted on the complaint and issued
an order creating an investigation and inventory team to inspect the
BFP-NCR stockroom where the supplies were stored. Upon learning
about the Order, petitioner requested that the ocular inspection be
held in abeyance until verification of Pascuas motive in filing the
complaint against him. Petitioner alleged that Pascua had a personal
grudge against him because he discovered Pascuas gross deficits in
gasoline, diesel and other petroleum products.
On January 5, 2003, the team proceeded to inspect the
stockroom, but Biazon refused to open it allegedly upon petitioners
instruction. However, when no team member was around, Biazon
surreptitiously tried to open the stockroom using the keys in his
possession. In order to preserve the contents of the stockroom, a
monitoring team from the Central Office was detailed to watch the
stockroom around the clock.
On January 21, 2003, Department of Interior and Local
Government (DILG) Undersecretary Marius Corpus instructed Senior

48

Superintendent Romero, Chief of Internal Affairs Services, to open the

stockroom despite Biazons refusal. Eventually, the stockroom was
opened with the help of Cabungcal.
After an inventory, the team discovered that twelve (12)
computer units were delivered to the BFP-NCR which were reportedly
inspected and accepted by Biazon on December 23, 2002. Biazon
explained that payments were made prior to delivery of the items and
he submitted the corresponding delivery receipts to the team. It was
discovered that the delivered units were withdrawn several days after
the delivery.
On January 22, 2003, Sr. Supt. Romero sent a radio message
directing all district, city, and municipal fire marshals under petitioners
supervision to submit on or before January 23, 2003 the list of supplies,
materials and equipment received by their respective offices for the
fourth quarter of CY 2002, indicating the respective dates of
delivery. On January 23, 2003, Fire Chief Senot relayed the radio
message to the Office of the Regional Fire Marshal with a note that the
same was for strict compliance.
On the other hand, petitioner issued a memorandum canceling
the directives on the list of inventory sent to him. He also issued
another memorandum directing his staff and the district, city, and
municipal fire marshals under his supervision to hold in abeyance
compliance with the radio messages. He further issued a
memorandum directing complainant Giron to refrain from further
issuing any memorandum or radio message without his approval. He
sought the courts intercession by filing a petition for prohibition with a
prayer for the issuance of a temporary restraining order to stop Sr.
Supt. Romero from further conducting an investigation.
On January 27, 2003, DILG Secretary Jose D. Lina, Jr. issued
Department Order No. 2003-59 relieving petitioner as Regional Fire
Marshal/Assistant Regional Director (RFM/ARD) and placing him on
DS at Headquarters Service Support Unit, BFP-National Office, in the
exigency of the service.
On February 12, 2003, the team reported the result of the
investigation finding, thus:

1.

No actual bidding transpired

procurement of the supplies.

in

the

2.

Petitioner merely directed the members of

the PBAC to sign the resolutions and the abstracts
of Canvass/Bid.

3.

The Commission on Audit was not notified of

the supposed bidding.

4.

Petitioner entered into contract with the

suppliers wherein the supplies were overpriced by
more or less P1,067,025.50 to the prejudice of the
government.

5.

The electrical supplies, barricade tapes and

computer parts which were reported to have been
paid and delivered were not in the stockroom.

The team recommended that petitioner and other BFP officials

involved in the anomaly be charged with grave misconduct for
violation of the rules on procurement of supplies, for deliberate
disobedience to the lawful order of higher authorities and for
suppression of evidence.
On February 14, 2003, DILG Secretary Lina issued Department
Order No. 2003-146 creating a committee to conduct a preliminary
investigation of the case against petitioner, Danilo D. Mayuga, Ester P.
Adordionicio, Danilo V. Pinion, Marco M. Manaois, Rolando G. Biazon,
Willie G. Cabungcal, Efren P. Guardiano, Danilo C. dela Pea, Fennimore
V. Jaudian, Sixto C. Bautista and Edgardo P. Antonio, who are all
employees of the BFP-NCR.
The committee directed the respondents to submit their
counter-affidavits within 15 days from receipt of notice.
In his counter-affidavit, petitioner denied the allegations against
him and elected the conduct of a formal investigation. He alleged that
it was presumed that the members of the PBAC regularly performed
their duties relative to the conduct of a public bidding, such as the
issuance of a resolution recommending the award of contracts to the

49

successful bidders. As head of BFP-NCR, he had the authority to award

the contracts to the winning bidders pursuant to the PBAC
resolution. He stated that the allegation that the supplies were
overpriced was based on suspicion, surmise and conjecture. He
justified his approval of the payment of the supplies on the basis of
supporting certifications of proper authorities and stated that even
though the signature of the accountant did not appear on some
checks, the accountants signature on all other papers sufficed. He
denied that there was suppression of evidence, that he refused to allow
the team to open the stockroom and that he instructed Biazon not to
open it.
DILG Secretary Lina found a prima facie case against
petitioner. On June 30, 2003, petitioner was charged with grave
misconduct in that he:
1.

Caused the procurement of supplies,

materials and equipment intended for the BFP,
NCR for the Fourth Quarter (2002) in violation of
law and rules on procurement;

2.

Made it appear that a sealed bidding was

conducted when there was none;

3.

Directed the members of the PBAC to sign

resolutions and abstract of bids in his office;

4.

Failed to notify the COA of the alleged

opening of the bids;

5.

Signed the Notice of Awards;

Suppressed evidence.[3]

Petitioner was directed to submit his Answer within ten days

from receipt of the Order, but he did not file an Answer.
On November 24, 2003, the committee issued an order setting
the case for preliminary hearing on December 2, 2003. The order was
received by petitioners counsel on November 25, 2003, but neither
petitioner nor his counsel appeared on the date set. The preliminary
hearing was reset to December 9, 2003. The Order was received by
petitioners counsel on December 3, 2003, but again neither petitioner
nor his counsel appeared. Hence, petitioner was declared to have
waived his right to present evidence.
On December 11, 2003, the counsel for complainant filed a
motion for early resolution of petitioners case.
On January 21, 2004, Secretary Lina issued a decision finding
petitioner guilty of grave misconduct for all the acts he was charged to
have committed, and dismissing him from the service. Petitioners
motion for reconsideration was denied.
Petitioner appealed DILG Secretary Linas decision to the CSC.
On July 20, 2005, the CSC issued Resolution No. 050947 finding
petitioner guilty of grave misconduct for approving the payment of
supplies without a certification from the Accountant that funds were
available and for disobeying and/or countermanding the lawful orders
of his superiors.
The dispositive portion of Resolution No. 050947 reads:

6.

Approved
the
payment
of
supplies,
materials and equipment when he knew that there
was no Certification of Supply Availability Inquiry
and Certification of Availability of Funds issued by
the Regional Accountant and that the items were
not yet fully delivered;

7.

Disobeyed
orders
of
countermanded the same; and

superiors

8.

and

WHEREFORE, the appeal of Rash C. Roque is

hereby DISMISSED. Accordingly,
the
Decision
of
Department of the Interior and Local Government
Secretary Jose D. Lina dated January 21, 2004 finding
Roque GUILTY of Grave Misconduct with a penalty of
dismissal from the service isAFFIRMED. Roque is also
imposed
the
accessory
penalties
of
perpetual
disqualification from re-entering the government service,
forfeiture of retirement benefits and cancellation of Civil

50

Service eligibility pursuant to the Uniform Rules on

Administrative Cases in the Civil Service.
Let a copy of this Resolution be forwarded to the
Office of the Ombudsman for its appropriate action and
the GSIS for the implementation of the accessory penalty
of forfeiture of retirement benefits.[4]
Petitioners motion for reconsideration was denied by the CSC in
Resolution No. 051850 dated December 13, 2005.
Petitioner filed a petition for review of the CSC decision before
the Court of Appeals. On May 29, 2007, the Court of Appeals rendered
a decision, the dispositive portion of which reads:
WHEREFORE, premises considered, the instant
petition is DISMISSED and the assailed Resolution Nos.
05-0947 and 05-1850 dated July 20, 2004and December
13, 2005, respectively, of public respondent commission
are AFFIRMED.[5]
Petitioners motion for reconsideration was denied for lack of
merit by the Court of Appeals in a Resolution dated August 9, 2007.
Hence, this petition.
The issues are:
1. WHETHER OR NOT THE COURT OF APPEALS ERRED IN
SUSTAINING THE DECISION OF THE CIVIL SERVICE
COMMISSION AS PETITIONERS CONSTITUTIONAL
RIGHT TO DUE PROCESS OF LAW WAS ALLEGEDLY
VIOLATED.
2.

WHETHER OR NOT PETITIONER COMMITTED GRAVE

MISCONDUCT WARRANTING HIS DISMISSAL FROM THE
SERVICE.

Petitioner contends that the Decision of the DILG Secretary did

not take into consideration his counter-affidavit which should have
been adopted as his Answer; hence, the decision of the DILG, which
was upheld by the CSC and the Court of Appeals, dismissing him from
the service is null and void for depriving him of his constitutional right
to due process of law.
Petitioner also alleges that the Decision of the DILG Secretary
was based on the documents attached to the charge, and there is no
showing that they were identified, much less formally offered in
evidence. Hence, they cannot be considered competent evidence to
support a valid decision.
Petitioner further argues that considering the gravity of the
penalty which is dismissal from the service of one who has rendered
faithful service to the government for decades, the decision should
have been immediately set aside if only to afford him a full
opportunity to properly defend himself. However, the CSC simply
adopted the dismissal order of the DILG Secretary, and the Court of
Appeals affirmed the decision of the CSC.
The arguments of petitioner lack merit.
As a rule, the uniform finding of fact of the CSC and the Court of
Appeals is conclusive upon this Court. Our task in an appeal by
petition for review on certiorari as a jurisdictional matter, is limited to
reviewing errors of law that might have been committed by the Court
of Appeals.[6]
The Court agrees with the finding of the Court of Appeals that
petitioner was not denied due process of law, thus:
. . . [P]etitioner cannot successfully invoke denial
of due process since he was given the opportunity to be
heard. The facts obtaining in the case at bar sufficiently
show that petitioner was given ample opportunity to be
heard. The then Secretary Lina ordered petitioner to file
his answer [to] the formal charge within ten (10) days
from receipt thereof and to state whether he elects to
have a formal investigation. Further, petitioner was
advised that he may avail of the assistance of the

51

counsel of his choice and was apprised that his failure to

submit an answer would be construed as a waiver
thereof. Petitioner opted not to file his answer on the
ground that the formal charge did not allege new matters
and to re-submit his counter-affidavit in the complaint,
BFP-NCR 4th Quarter Anomalies Transaction would only be
repetitious and redundant. When the case was set for
preliminary
conferences,
on December
2,
2003 and December 9, 2003, neither petitioner nor his
counsel appeared despite receipt of notices.

doubt Secretary Joey Lina considered the counteraffidavit. This can be gleaned from his decision to wit:

Obviously, petitioner was not denied of due

process. In administrative proceedings, the filing of
charges and giving reasonable opportunity for the person
so charged to answer the accusation against him
constitute
the
minimum
requirements
of
due
process. The opportunity to defend his interests in due
course was given to petitioner but [he] failed to do so;
hence, petitioner has no reason to complain for it is this
opportunity to be heard that makes up the essence of
due process.

In affirming the decision of Secretary Joey Lina,

public respondent commission likewise took into
consideration the counter-affidavit, but again, public
respondent commission found that the contentions of
petitioner failed to controvert the fact finding report of
the committee. On our part, the counter-affidavit is pure
denial. The Supreme Court in a litany of cases has ruled
that denial, if unsubstantiated by clear and convincing
evidence is a self-serving assertion that deserves no
weight in law.[7]

The non-submission of [an] answer by the

petitioner to the formal charge does not mean the he
[was] denied due process. It bears stressing that the
Investigative Committee accepted the counter-affidavit of
petitioner to the complaint albeit the same was belatedly
filed. The acceptance is in accord with the basic rule of
administrative law that technical rules of procedure are
liberally applied to administrative agencies exercising
quasi-judicial functions. As such, the counter-affidavit
formed part of the records of the case which can be
considered by the deciding authority.
A perusal of the rollo of the case shows that the
committee has indeed considered the counter-affidavit
but unfortunately the committee found that the
allegations therein were not enough to controvert the
factual matters found by the committee that led to the
administrative charge for grave misconduct. There is no

After evaluating the xxx Fact Finding

Report which has remained uncontroverted,
together
with
the
other
pertinent
documents attached to the records of the
case, this Office finds Respondent Roque
culpable of the administrative offense of
Grave Misconduct xxx.

The Court of Appeals also correctly sustained the CSCs Decision

finding petitioner guilty of grave misconduct for violating the procedure
for the procurement of supplies, and for approving the Disbursement
Vouchers without the certification from the Accountant. The CSC
Decision stated:
. . . [T]he Commission finds Roque guilty of Grave
Misconduct for approving the payment of supplies
without a Certification from the Accountant that funds are
available. As provided in the Local Government Code of
1991, the General Appropriations Act and other pertinent
laws and rules, the procurement of supplies is dependent
on the availability of funds evidenced by the issuance of
an Advice of Sub-Allotment and Notice of Transfer of Cash
Allocation by the Central Finance Office of the agency to
the procuring unit. Upon the establishment of fund

52

availability, the basic procedures for the procurement of

supplies are, as follows:
1)

2)

3)

4)

Preparation
of
Purchase
Request. The Head of Office needing
the supplies prepares a Purchase
Request certifying the necessity of the
purchase for official use and specifying
the project where the supplies are to be
used. Every Purchase Request must be
accompanied by a certificate signed by
the local Budget Officer, the local
Accountant, and the local Treasurer
showing that an appropriation therefor
exists, that the estimated amount of
such expenditure has been obligated,
and that the funds are available for the
purpose, respectively.
Approval
of
the
Purchase
Request. The Head of Office or
department
concerned
who
has
administrative
control
of
the
appropriation
against
which
the
proposed expenditure is chargeable
approves the Purchase Request.
Endorsement of the PBAC for
bidding. The PBAC advertises the
invitation to bid and the notice or
prequalification, conducts the opening of
bids, prepares the Abstract of Bids,
conducts the evaluation of bids,
undertakes
post-qualification
proceedings, and recommends to the
Head of Office the award of contracts to
the successful bidder. The Head of
Office issues the Notice of Award.
Preparation
of
Certificate
of
Availability of Funds. The Chief

Accountant certifies that funds have

been duly appropriated/allotted for the
purpose of entering into a contract
involving expenditures of public funds
and that the amount necessary to cover
the proposed contract for the current
fiscal year is available.
5)

Preparation
of
Purchase
Order. The Head of Office approves the
Purchase Order which is a document
evidencing a transaction for the
purchase of supplies.

6)

Delivery of Purchase Order. The

Purchase Order is delivered to the
supplier within a reasonable time after
its approval.

7)

Delivery of Items. The supplier

delivers the supplies in accordance with
the specifications, terms and conditions
provided in the Purchase Order.

8)

Inspection of Items. The inspector

inspects and verifies the purchases
made by the agency for conformity with
the specifications in the order.

9)

Preparation
of
Certificate
of
Acceptance. Acceptance of deliveries
may be made only if the supplies and
materials delivered conform to the
standards and specification stated in the
contract.

10) Preparation of the Voucher. The

Budget Officer, the Accountant and the
Treasurer certify that all documents are
complete and proper. The Head of Office

53

approves the Disbursement Voucher for

the release of check for payment.
As can be gleaned from the foregoing procedures,
the participation of the Head of Office consists in the
approval of the Purchase Request, Purchase Order, and
the Disbursement Voucher and in the award of the
contract to the successful bidder. As Head of the Regional
Office, Roque has authority to approve and sign the
Notice of Award based on the PBAC Resolution and the
Disbursement Voucher upon certification of the Budget
officer, the Accountant and that Treasurer that all
supporting documents are complete and proper.
Roque claims good faith since his approval of the
Disbursement Vouchers, though without the signature of
the Accountant, is supported by papers bearing the
signature of the Accountant. This is devoid of merit. The
authority of the Head of Office to approve the
Disbursement Voucher is dependent on the certifications
of the Budget Officer, the Accountant and the Treasurer
on the principle that it would be improbable for the Head
of Office to check all the details and conduct physical
inspection and verification of all papers considering the
voluminous paperwork attendant to his office. Without
the certification, the Head of Office is duty-bound to
inspect the voluminous records to verify the contents of
the documents needing his approval. It needs emphasis
that the approval of the Disbursement Voucher means
the release of public funds, as in this case, for payment of
the supplies to the supplier. In the instant case, Roque
approved the Disbursement Vouchers despite the lack of
the Accountants certification. He failed to perform his
duty of ascertaining whether it is proper for him to
approve the Disbursement Vouchers before he approves
the same. This is not a mere oversight which the
Commission may easily disregard. His act constitutes
Grave Misconduct which warrants his dismissal from the
service.[8]

Misconduct is a transgression of some established and definite

rule of action, more particularly, unlawful behavior or gross negligence
by a public officer. [9] The misconduct is grave if it involves any of the
additional elements of corruption, willful intent to violate the law
or to disregard established rules, which must be established by
substantial evidence.[10] Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.[11]
The Court agrees with the Court of Appeals that there is
substantial evidence that petitioners act constituted grave
misconduct, as petitioner voluntarily disregarded established rules in
the procurement of supplies. The Court of Appeals found, thus:
. . . [T]here is no showing that petitioner
conducted verifications on the supporting papers of the
Disbursement Vouchers. Instead, he claimed that he was
in good faith in approving them as the supporting papers
bore the signature of the Accountant. . . This Court is of
the opinion that the approval of more than one
disbursement voucher without the necessary certification
of the accountant casts doubt on the claim of petitioner
that he was in good faith. . . Unmistakably, the intent to
violate the law or flagrant disregard of established rule is
manifest in the matter under consideration. It could have
been different if only one disbursement voucher is
involved.[12]
As
regards
petitioners
acts
of
disobeying
and/or
countermanding the lawful orders of his superiors, the Court agrees
with the Court of Appeals that such acts can be classified as gross
insubordination punishable with suspension for six months and one day
to one year for the first offense, and dismissal for the second offense.
In fine, the Court of Appeals correctly found petitioner guilty of
grave misconduct for manifest intent to disregard established rules in
the procurement of supplies. Under Sec. 22, Rule IV of the Omnibus
Civil Service Rules and Regulations, grave misconduct is classified as a
grave offense and penalized with dismissal for the first offense. The
penalty of dismissal carries with it forfeiture of retirement benefits

54

excluding leave credits,[13] and disqualification from reemployment in

the government service. Despite dismissal from the service, petitioner,
as a government employee, is entitled to the leave credits that he has
earned during the period of his employment.[14]
WHEREFORE, the Decision of the Court of Appeals in CA-G.R.
SP No. 93349 promulgated on May 29, 2007 and its Resolution
promulgated on August 9, 2007 are hereby AFFIRMED.
No costs.

In this petition for certiorari and prohibition,[1] the Office of the

Ombudsman assails the Court of Appeals decision[2] dated March 23,
2007 setting aside the Ombudsmans order placing respondents under
preventive suspension.

SO ORDERED.
x-----------------------------------------------------x

CASE NO. 9

OFFICE OF THE OMBUDSMAN VS. RICARDO EVANGELISTA

DECISION

The facts follow.

In an affidavit-complaint dated November 13, 2006, Priscilla

Villanueva, the Co-Chair of the Local School Board of Aguilar, accused
the respondents of having misappropriated the Special Education Fund
(SEF).[3] The complainant alleged that the three respondents had used
the SEF to purchase speech kit tapes and textbooks without the
approval of the Local School Board. She also alleged that the speech
kit tapes and textbooks were not received by the recipients, as
evidenced by attached certifications of principals and head teachers of
different public schools within Aguilar debunking such receipt.
[4]
Villanueva specially pleaded that the respondents be preventively
suspended.[5]

Respondents Ricardo Evangelista, Concepcion Melican and

Grace Limos (respondents) are the mayor, municipal treasurer and
accountant respectively, of Aguilar, Pangasinan.

55

In an order dated January 9, 2007,[6] the Ombudsman placed

respondents under preventive suspension for a period of four (4)
months. The dispositive portion of the order reads:

(5) days from said receipt of the status of said

implementation.

SO ORDERED.[7]

WHEREFORE PREMISES CONSIDERED, it is

most respectfully recommended that the request of
complainant Priscilla B. Villanueva for the preventive
suspension of the respondents be GRANTED. In
accordance with Section 24, R.A. No. 6770 and Section
9, Rule III of Administrative Order No. 07, respondents
RICARDO EVANGELISTA, CONCEPCION MELICAN and
GRACE
LIMOS
are
hereby PREVENTIVELY
SUSPENDED during the pendency of the case until
termination, but not to exceed the total period of four
(4) months, without pay. In case of delay in the
disposition of the case due to the fault, negligence or
any cause attributable to the respondents, the period of
such delay shall not be counted in computing the
period of the preventive suspension.

In accordance with Section 27, par. (1), R.A. No.

6770,
this
Order
is
immediately
executory.
Notwithstanding any motion, appeal or petition that
may be filed by the respondents seeking relief from this
Order, unless otherwise ordered by this Office or by any
court of competent jurisdiction, the implementation of
this Order shall be interrupted within the period
prescribed. The Honorable Secretary of the Interior and
Local Government and Department of Finance are
hereby directed to implement this Order immediately
upon receipt hereof, and to notify this Office within five

The Ombudsman held that the proofs submitted by Villanueva

showed strong evidence of guilt, that if duly proven the acts imputed
against the respondents would constitute grave misconduct and
dishonesty and that their continued stay in office would prejudice the
fair and independent disposition of the case against them.

The suspension order was served on respondent Evangelista

on January 13, 2007. Two (2) days later, the same process was effected
on respondent Limos.

On January 17, 2007, respondents filed a petition for certiorari

with the Court of Appeals assailing the order of the Ombudsman.
[8]
They claimed that they had been denied due process since they
were never furnished with a copy of Villanuevas complaint. They also
alleged that the unsubstantiated allegations of Villanueva do not
constitute sufficient evidence to suspend them. Lastly, they averred
that the order had been hastily issued.

The Court of Appeals granted the petition and set aside the
order of the Ombudsman. The appellate court observed that even a
cursory reading of the assailed order reveals that the requirements of

56

R.A. No. 6770 were not complied with. It pointed out that under Section
26(2) of R.A. No. 6770, the Ombudsman is required to inform the
accused of the charges; yet, the respondents learned of the charges
against them only upon receipt of the suspension order. Rejecting the
tenability of the preventive suspension order, the appellate ruled that
the documents which could possibly be tampered were beyond the
reach of the respondent as they had been kept in the custody of the
Commission on Audit. In addition, the Court of Appeals found that there
was haste in ordering the suspension since the Ombudsman signed the
order prior to the Deputy Ombudsmans recommendation of approval.

preventive suspension order moot and academic following the doctrine

laid down in Mayor Garcia v. Hon. Mojica.[9]

Aggrieved by the decision of the appellate court, the

Ombudsman assails the same before this Court via a petition for
review on certiorari.The Ombudsman claims that the order complied
with the two requirements in Section 24 of R.A. No. 6770, namely: the
evidence of guilt being strong and the charge against such officer or
employee involving as it does dishonesty, oppression or grave
misconduct or neglect in the performance of duty. Furthermore, as the
function of a petition for certiorari is to correct errors of jurisdiction,
it can not include a review of the Ombudsmans factual findings. The
Ombudsman also asserts that the reliance by the appellate court on
Section 26(2) of R.A. No. 6770 is misplaced since a preventive
suspension order has to satisfy only the requirements laid down in
Section 24 of the same law. Finally, there is ample jurisprudence
supporting the legality of a preventive suspension order issued even
prior to the hearing of the charges.

Generally, to challenge appellate court decisions reversing

rulings of the Ombudsman in administrative cases, the special civil
action for certiorari under Rule 65 is not the appropriate recourse. As
the Ombudsman assails the appellate courts misapplication of the law,
the proper remedy is a petition for review on certiorari under Rule 45.
Errors of judgment committed by the appellate court are not
correctible by a petition for certiorari.[10] Respondents, however, failed
to raise this lapse of the Ombudsman as an error. In any event, the
issues raised by the Ombudsman merit a full-blown discussion. Thus,
the Court opts to adopt a liberal construction of the Rules of Court,
treating the petition for certiorari as a petition for review in order to
avert a miscarriage of justice, [11] especially since the petition for
certiorari was filed within the fifteen-(15) day period prescribed for a
petition for review under Section 2, Rule 45 of the Rules of Court.
Specifically, the petition was filed onApril 13, 2007 or exactly 15 days
after the Ombudsman received the decision on March 29, 2007.

In their defense, the respondents reiterate that they were denied

due process when they were not informed of the charges against them
prior to their preventive suspension. The irregularities concerning the
SEF imputed to them are baseless, they add. They claim that
Villanueva had effected the concoction and circulation of a bogus
Special Prosecutors order finding them guilty of grave misconduct and
dishonesty, as well as recommending their dismissal from service.
Lastly, they assert that the re-election of Evangelista has rendered the

The petition is meritorious.

There is a procedural matter that must first be resolved.

Now, on the substantive aspects.

It is the consistent and general policy of the Court not to

interfere with the Office of the Ombudsmans exercise of its

57

investigatory and prosecutory powers.[12] 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.[13] It is within the context of this well-entrenched policy that the
Court proceeds to pass upon the validity of the preventive suspension
order issued by the Ombudsman in this case.
As early as 1995, this Court ruled in Lastimosa v.
Vasquez[14] and Hagad v. Gozo-Dadole,[15] that neither prior notice nor
a hearing is required for the issuance of a preventive suspension order.
The well-settled doctrine is solidly anchored on the explicit text of the
governing law which is Section 24 of R.A. No. 6770. The provision
defines the authority of the Ombudsman to preventively suspend
government officials and employees. It reads:

SEC. 24. Preventive Suspension.The Ombudsman

or his Deputy may preventively suspend any officer or
employee under his authority pending an investigation, if
in his judgment the evidence of guilt is strong, and (a) the
charge against such officer or employee involves
dishonesty, oppression or grave misconduct or neglect in
the performance of duty; (b) the charges would warrant
removal from the service; or (c) the respondent's
continued stay in office may prejudice the case filed
against him.
The preventive suspension shall continue until the
case is terminated by the Office of the Ombudsman but
not more than six months, without pay, except when the
delay in the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of

the respondent, in which case the period of such delay

shall not be counted in computing the period of
suspension herein provided.

Clearly, the plain language of the above-quoted provision

debunks the appellate courts position that the order meting out
preventive suspension may not be issued without prior notice and
hearing and before the issues are joined. Under Section 24, two
requisites must concur to render the preventive suspension order
valid. The first requisite is unique and can be satisfied in only one way.
It is that in the judgment of the Ombudsman or the Deputy
Ombudsman, the evidence of guilt is strong. The second requisite,
however, may be met in three (3) different ways, to wit: (1) that the
offense charged involves dishonesty, oppression or grave misconduct
or neglect in the performance of duty; (2) the charge would warrant
removal from the service; or (3) the respondents continued stay in
office may prejudice the case filed against him.

Undoubtedly, in this case, there is no showing of grave abuse of

discretion on the Ombudsmans part in finding the evidence to be
strong. In issuing the preventive suspension order, the Ombudsman
considered the following: the Local Budget Preparation Form No. 151
indicating the balance of the SEF;[16] records from the office of the
municipal account;[17] a letter dated December 13, 2004 of Villanueva
to the Municipal Treasurer requesting clarification of the SEF
balance;[18] status of appropriation, allotment and obligation of the SEF
as of December 31, 2003;[19] SEF statement of income and expenses
for 2003;[20] the letter of the municipal accountant to Mayor
Evangelista enumerating the disbursements charged to the SEF which
includes disbursements for speech kits and textbooks for 2003-2005;
[21]
certifications dated February 11, 2005 issued by principals and head
teachers stating they did not receive speech kits nor text books for
2004-2005.[22]
The
SEF
was
suddenly
reduced
to P343,763.30
from P783,937.60 without sufficient justification as revealed by this
Courts evaluation of the Status of Appropriation, Allotment and

58

Obligation as well as the Statement of Income and Expense, both

certified as correct by respondent Limos no less. [23] Moreover, the
certifications of numerous head teachers and principals that their
schools did not receive the speech kits and textbooks are likewise
strong evidence of dishonesty and grave misconduct on the
respondents part.[24] This is bolstered by the fact that no disbursement
was authorized by the local school board.
In this case, the second requisite is satisfied by two
circumstances. First, the offense definitely involves dishonesty,
oppression or grave misconduct or neglect in the performance of duty.
Second, the charge would warrant removal from the service.
Dishonesty is intentionally making a false statement in any
material fact.[25] Per the findings of the Ombudsman, there is strong
evidence that private respondents made false statements as to the
status of the SEF as well as the purchase of speech kits and textbooks.
Likewise, a mayor like any other local elective official may be removed
from office for dishonesty, oppression, gross negligence or dereliction
of duty in accordance with Section 60(c) of the Local Government
Code. In regard to respondents Melican and Limos, both are members
of the civil service under Section 22, Rule XIV of the Omnibus Rules of
Civil Service, dishonesty is a grave offense punishable with dismissal
even as a first offense.

The penalty of dismissal is reiterated in Civil Service

Memorandum Circular No. 30, series of 1989, [26] and also in Civil
Service Memorandum Circular No. 19, series of 1999. [27] Section 9, Rule
XIV, Section 9 of the Omnibus Rules and the aforecited circulars
likewise state that the penalty of dismissal from the service shall carry
with it cancellation of civil service eligibility, forfeiture of leave credits
and retirement benefits, and disqualification from any employment in
the government service.[28]
The appellate court strangely juxtaposed the requisites found in
Section 26 of R.A. No. 6770 governing inquiries by the Ombudsman
with those found in Section 24 of the same law. Section 24 does not
require that notice of the charges against the accused must precede an

order meting out preventive suspension. While a preventive

suspension order may stem from a complaint, the Ombudsman is not
required to furnish the respondent with a copy of the complaint prior to
ordering preventive suspension. The requisites for the Ombudsman to
issue a preventive suspension order are clearly contained in Section 24
of R.A. No. 6770. The appellate court cannot alter these requirements
by insisting that the preventive suspension order also meet the
requisites found in Section 26 of the same law.

The appellate courts stance that there is no longer any reason

for the preventive suspension of the respondents as the pertinent
documents are with the Commission on Audit likewise has no
merit. Respondents argue there is no reason for suspension pendente
lite as they could no longer tamper with the evidence. This Court found
a similar argument in Bunye v. Escarreal[29] devoid of merit. We
reiterate the rule that the prosecution must be given the opportunity
to gather and prepare the facts for trial under conditions which would
ensure non-intervention and noninterference from accused's camp.
[30]
Similar to Section 13 of Republic Act No. 3019, Section 24 of R.A.
No. 6770 emphasizes the principle that a public office is a public trust.
[31]
Part and parcel of this principle is a presumption that unless the
public officer is suspended, he may frustrate his prosecution or commit
further acts of malfeasance or both.[32] Relatedly, the Ombudsman has
full discretion to select which evidence it will gather and present, free
from any interference.

This Court also holds that there was no undue haste on the
Ombudsmans part in issuing the preventive suspension order. The fact
that the Ombudsman signed the order prior to her Deputy
Ombudsmans recommendation does not affect its validity. A review of
Section 24 of R.A. No. 6770 reveals that the recommendation of the
Deputy Ombudsman is not a condition sine qua non for the
Ombudsman to issue a preventive suspension order.

59

A preventive suspension is not a penalty and such an order

when issued by the Ombudsman is accorded the highest deference
unless the order violates Section 24 of R.A. No. 6770.[33]

A final note. The preventive suspension order insofar as Mayor

Evagelista is concerned has been rendered moot and academic. The
Mayor was re-elected and proclaimed during the May 2007 elections as
evidenced by the certificate of canvass of votes and proclamation of
winning candidates for the Municipality of Aguilar, Pangasinan.[34] This
Court has consistently ruled that elective officials may not be held
administratively liable for misconduct committed during a previous
term of office.[35] The rationale for this rule is that it is assumed that the
electorate returned the official to power with full knowledge of past
misconduct and in fact condoned it. It should be stressed that this
forgiveness only applies to the administrative liability; the State may
still pursue the official in a criminal case.

WHEREFORE,
the
petition
is
partially GRANTED.
The Decision dated March 23, 2007 of the Court of Appeals
is REVERSED and SET ASIDE insofar as it refers to respondents Grace
Limos and Concepcion Melican. The preventive suspension order
issued
by
the
Ombudsman
on
said
respondents
is AFFIRMED. Said Decision of
the
Court
of
Appeals
is AFFIRMED with respect to respondent Ricardo Evangelista.
SO ORDERED.
x-----------------------------------------------------x

CASE NO. 10

OFFICE OF THE OMBUDSMAN VS. MARIAN AND MARICAR

TORRES

DECISION
NACHURA, J.:
This is a petition1 for review on certiorari under Rule 45 of the Rules of
Court filed by petitioner Office of the Ombudsman seeking the reversal
of the Decision2 dated January 6, 2004 and the Resolution3 dated May
27, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 69749.
The case arose from an administrative complaint for Dishonesty, Grave
Misconduct, and Falsification of Official Document filed before the
Office of the Ombudsman (docketed as OMB-ADM-0-00-0926) by
then Barangay Chairman Romancito L. Santos of Concepcion, Malabon,
against Edilberto Torres (Edilberto), Maricar D. Torres (Maricar), and
Marian D. Torres (Marian), then Municipal Councilor, Legislative Staff
Assistant, and Messenger, respectively, of the Sangguniang Bayan of
Malabon. Maricar and Marian are daughters of Edilberto.
Maricar was appointed as Legislative Staff Assistant on February 16,
1995, while Marian was appointed as Messenger on May 24, 1996. At
the time of their public employment, they were both enrolled as fulltime regular college students Maricar, as a full-time student at the
University of Santo Tomas (UST) and Marian as a dentistry-proper
student at the College of Dentistry of Centro Escolar University. During
the period subject of this case, they were able to collect their
respective salaries by submitting Daily Time Records (DTR) indicating
that they reported for work every working day, from 8:00 a.m. to 5:00
p.m.
After due proceedings held in the Office of the Ombudsman, Graft
Investigation Officer (GIO) Moreno F. Generoso, in the Decision 4 dated

60

November 9, 2001, found Maricar and Marian administratively guilty of

Dishonesty and Falsification of Official Document and recommended
the imposition of the penalty of dismissal from the service. The charge
against Edilberto was dismissed, having become moot and academic in
view of his re-election on May 14, 2001 in accordance with the ruling
in Aguinaldo v. Santos5 that "a public official cannot be removed for
administrative misconduct committed during a prior term, since his reelection to office operates as a condonation of the officers previous
misconduct to the extent of cutting off the right to remove him
therefor." Upon recommendation of Deputy Special Prosecutor Robert
E. Kallos, Ombudsman Aniano A. Desierto affirmed the findings of GIO
Generoso but tempered the penalty to one (1) year suspension from
service without pay.
Aggrieved, Maricar and Marian went to the CA via a
petition6 for certiorari under Rule 65 of the Rules of Court.
In a Decision dated January 6, 2004, the CA granted the petition. While
affirming the findings of fact of the Office of the Ombudsman, the CA
set aside the finding of administrative guilt against Maricar and Marian
ratiocinating in this wise:
It is undisputed that petitioners are confidential employees of
their father. As such, the task they were required to perform, is
upon the instance of their father, and the time they were
required to report may be intermittent. To our mind, the false
entries they made in their daily time records on the specific
dates contained therein, had been made with no malice or
deliberate intent so as to constitute falsification. The entries
made may not be absolutely false, they may even be considered
as having been made with a color of truth, not a downright and
willful falsehood which taken singly constitutes falsification of
public documents. As Cuello Calon stated: "La mera inexactud
no es bastante para integrar este delito." In the present case,
the daily time records have already served their purpose. They
have not caused any damage to the government or third person
because under the facts obtaining, petitioners may be said to
have rendered service in the interest of the public, with proper
permission from their superior.

It may be true that a daily time record is an official document. It

is not falsified if it does not pervert its avowed purpose as when
it does not cause damage to the government. It may be
different in the case of a public document with continuing
interest affecting the public welfare, which is naturally damaged
if that document is falsified when the truth is necessary for the
safeguard and protection of that general interest. The keeping
and submission of daily time records within the context of
petitioners employment, should be taken only for the sake of
administrative procedural convenience or as a matter of
practice, but not for reason of strict legal obligation.
Assuming that petitioners are under strict legal obligation to
keep and submit daily time records, still we are disposed to the
view that the alleged false entries do not constitute falsification
for having been made with no malice or deliberate intent.
The following pronouncement in the case of Lecaroz vs.
Sandiganbayan may serve as a guidepost, to wit: "[I]f what is
proven is mere judgmental error on the part of the person
committing the act, no malice or criminal intent can be rightfully
imputed to him. x x x. Ordinarily, evil intent must unite with an
unlawful act for a crime to exist.Actus non facit reum, nisi mens
sit rea. There can be no crime when the criminal mind is
wanting. As a general rule, ignorance or mistake as to particular
facts, honest and real, will exempt the doer from felonious
responsibility. The exception of course is neglect in the
discharge of duty or indifference to consequences, which is
equivalent to criminal intent, for in this instance, the element of
malicious intent is supplied by the element of negligence and
imprudence. In the instant case, there are clear manifestations
of good faith and lack of criminal intent on the part of
petitioners."
As a final note, there may be some suspicions as to the real
intention of private complainant in instituting the action before
public respondent, caution should be taken to prevent the
development of circumstances that might inevitably impair the
image of the public office. Private complainant is a government
61

official himself, as such he should avoid so far as reasonably

possible, a situation which would normally tend to arouse any
reasonable suspicion that he is utilizing his official position for
personal gain or advantage to the prejudice of party litigants or
the public in general. For "there may be occasion then where
the needs of the collectivity that is the government may collide
with his private interest as an individual."

EMPLOYEES LIKE HEREIN PRIVATE RESPONDENTS. THE

FALSIFICATION OF DTRs WOULD RENDER THE AUTHORS
THEREOF ADMINISTRATIVELY LIABLE FOR DISHONESTY
AND GRAVE MISCONDUCT FOR THE DAMAGING FALSE
NARRATION AND THE COLLECTION OF FULL
COMPENSATION FOR INEXISTENT WORK.
II

In closing, it must be borne in mind that the evident purpose of

requiring government employees to keep a daily time record is
to show their attendance in office to work and to be paid
accordingly. Closely adhering to the policy of no work no pay, a
daily time record is primarily, if not solely, intended to prevent
damage or loss to the government as would result in instances
where it pays an employee for no work done. The integrity of
the daily time record as an official document, however, remains
untarnished if the damage sought to be prevented has not been
produced. The obligation to make entries in the daily time
records of employees in the government service is a matter of
administrative procedural convenience in the computation of
salary for a given period, characteristically, not an outright and
strict measure of professional discipline, efficiency, dedication,
honesty and competence. The insignificant transgression by
petitioners, if ever it is one, would not tilt the scales of justice
against them, for courts must always be, as they are, the
repositories of fairness and justice.7
Petitioner moved to reconsider the reversal of its Decision by the CA,
but the motion was denied in the CA Resolution dated May 27, 2005.
Hence, this petition based on the following grounds:
I
THE FILLING-UP OF ENTRIES IN THE OFFICIAL DAILY TIME
RECORDS (DTRs) IS NOT A MATTER OF ADMINISTRATIVE
PROCEDURAL CONVENIENCE, BUT RATHER REQUIRED BY
CIVIL SERVICE LAW TO ENSURE THAT THE PROPER
LENGTH OF WORK-TIME IS OBSERVED BY PUBLIC
OFFICIALS AND EMPLOYEES, INCLUDING CONFIDENTIAL

THE ELEMENT OF DAMAGE TO THE GOVERNMENT IS NOT

A REQUISITE FOR ONE TO BE HELD ADMINISTRATIVELY
LIABLE FOR DISHONESTY AND MISCONDUCT. ASSUMING
IT IS FOR ARGUMENTS SAKE, DAMAGE WAS CAUSED THE
GOVERNMENT WHEN PRIVATE RESPONDENTS FALSIFIED
THEIR DAILY TIME RECORDS IN ORDER TO COLLECT THEIR
SALARIES.
III
THE ELEMENT OF INTENT OR MALICE APPLIES TO
CRIMINAL PROSECUTION, NOT TO AN OFFENSE OF
DISHONESTY AND MISCONDUCT.8
Petitioners first submission is that the filling-up of entries in the official
DTR is not a matter of administrative procedural convenience but is a
requirement by Civil Service Law to ensure that the proper length of
work-time is observed by all public officials and employees, including
confidential employees such as respondents. It argues that DTRs,
being representations of the compensable working hours rendered by a
public servant, ensure that the taxpaying public is not shortchanged.
To bolster this position, petitioner cited Rule XVII on Government Office
Hours of the Omnibus Rules Implementing Book V of Executive Order
No. 292 and Other Pertinent Civil Service Laws, to wit:
SECTION 1. It shall be the duty of each head of department or
agency to require all officers and employees under him to
strictly observe the prescribed office hours. When the head of
office, in the exercise of discretion allows government officials

62

and employees to leave the office during the office hours and
not for official business, but to attend socials/events/functions
and/or wakes/interments, the same shall be reflected in their
time cards and charged to their leave credits.
SEC. 2. Each head of department or agency shall require a daily
time record of attendance of all the officers and employees
under him including those serving in the field or on the water, to
be kept in the proper form and, whenever possible, registered in
the bundy clock.
Service "in the field" shall refer to service rendered outside the
office proper and service "on the water" shall refer to service
rendered on board a vessel which is the usual place of work.
SEC. 3. Chiefs and Assistant Chiefs of agencies who are
appointed by the President, officers who rank higher than these
chiefs and assistant chiefs in the three branches of government,
and other presidential appointees need not punch in the bundy
clock, but attendance and all absences of such officers must be
recorded.
SEC. 4. Falsification or irregularities in the keeping of time
records will render the guilty officer or employee
administratively liable without prejudice to criminal prosecution
as the circumstances warrant.
SEC. 5. Officers and employees of all departments and agencies
except those covered by special laws shall render not less than
eight hours of work a day for five days a week or a total of forty
hours a week, exclusive of time for lunch. As a general rule,
such hours shall be from eight oclock in the morning to twelve
oclock noon and from one oclock to five oclock in the
afternoon on all days except Saturdays, Sundays and Holidays.
SEC. 6. Flexible working hours may be allowed subject to the
discretion of the head of department or agency. In no case shall
the weekly working hours be reduced in the event the

department or agency adopts the flexi-time schedule in

reporting for work.
SEC. 7. In the exigency of the service, or when necessary by the
nature of the work of a particular agency and upon
representations with the Commission by the department heads
concerned, requests for the rescheduling or shifting of work
schedule of a particular agency for a number of working days
less than the required five days may be allowed provided that
government officials and employees render a total of forty hours
a week and provided further that the public is assured of core
working hours of eight in the morning to five in the afternoon
continuously for the duration of the entire workweek.
SEC. 8. Officers and employees who have incurred tardiness and
undertime regardless of minutes per day exceeding [at least]
ten times a month for two (2) consecutive months or for 2
months in a semester shall be subject to disciplinary action. 9
Petitioner posits that, by reason of the above provisions, making false
entries in the DTRs should not be treated in a cavalier fashion, but
rather with a modicum of sacredness because the DTR mirrors the
fundamental maxim of transparency, good governance, public
accountability, and integrity in the public service pursuant to the
constitutional precept that "public office is a public trust."
Consequently, the officer or employee who falsifies time records should
incur administrative liability.
On its second and third submissions, petitioner assailed the position of
the CA that respondents cannot be held guilty of falsification because
they did not cause any damage to the government and there was no
intent or malice on their part when they made the false entries in their
respective DTRs during the questioned period of service. According to
petitioner, respondents were not criminally prosecuted for falsification
under the Revised Penal Code, but were being held administratively
accountable for dishonesty, grave misconduct, and falsification of
official documents; thus, the elements of damage and intent or malice
are not prerequisites. It further claimed that for this purpose, only
substantial evidence is required, and this had been strongly
63

established. Petitioner also argued that, even if the element of damage

is mandatory, respondents had caused damage to the government
when they received their full salaries for work not actually rendered.
In their Comment,10 respondents claimed that the CA correctly
dismissed the administrative charges against them as the integrity of
their DTRs had remained untarnished and that they acted in good faith
in making the entries in their DTRs. They said that the CA clearly
elaborated the legal basis for its ruling in their favor. They even argued
that the administrative charges lodged by Romancito Santos were
based on mere conjectures and conclusions of fact, such that it was not
impossible for college students to work eight (8) hours a day and
attend classes. They further claimed that petitioner failed to prove that
they actually attended their classes which they were enrolled in.
Respondents also argued that petitioner erred in not having dismissed
outright the administrative charges against them because, at the time
the complaint was filed, the charges had already prescribed under
Section 20 (5) of Republic Act No. 6770 (The Ombudsman Act of 1989),
to wit:
(5) The complaint was filed after one year from the occurrence
of the act or omission complained of.
They said that the acts complained of occurred in 1996 to 1997, while
the case was filed only on February 2000, or after the lapse of more or
less three (3) years.
Respondent Maricar also asseverated that the doctrine laid down
in Aguinaldo v. Santos11 should also apply to her considering that she
was elected as City Councilor of Malabon City in the 2004 elections.
She also claimed that the instant case adversely affected their lives,
particularly in her case, for while she graduated from the University of
the East College of Law in 2004, she was only able to take the bar
examinations in 2005 due to the pendency of the administrative case
against her. She also cited the fact that the criminal case involving the
same set of facts was dismissed, insinuating that, as a result of this,
the administrative case should have likewise been dismissed.

The petition is impressed with merit.

At the outset, it must be stressed that this is an administrative case for
dishonesty, grave misconduct, and falsification of official document. To
sustain a finding of administrative culpability only substantial evidence
is required, not overwhelming or preponderant, and very much less
than proof beyond reasonable doubt as required in criminal
cases.12 Substantial evidence means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.
The following facts are borne out by the records: (1) Maricar was
appointed as Legislative Staff Assistant in the Office of then Councilor
of Malabon, Edilberto Torres, on February 16, 1995;13 (2) Marian was
appointed as Messenger in the same office on May 24, 1996;14 (3) at
the time of Maricars appointment to and employment in her position
(1995-1997), she was a full-time regular college student at UST; 15 (4)
at the time of Marians appointment and employment as messenger in
her fathers office (1996-2000), she was a full-time regular dentistryproper student at the College of Dentistry of Centro Escolar
University;16 (5) during the employment of respondents in government
service, they submitted DTRs indicating that they religiously reported
for work from 8:00 a.m. to 5:00 p.m. during work days;17 (6) by reason
thereof, respondents collected their full salaries during the entire time
of their employment in their respective positions;18 and, (7) these all
occurred with the full knowledge and consent of their father. 19
It is also worthy to note that the factual finding made by petitioner,
i.e., that respondents made false entries in their respective DTRs for
the period subject of this case, was affirmed by the CA in the assailed
Decision dated January 6, 2004.20
On the basis of these established facts, petitioner was correct in
holding respondents administratively guilty of dishonesty and
falsification of official document. Dishonesty is defined as the
"disposition to lie, cheat, deceive, or defraud; untrustworthiness, lack
of integrity."21 Falsification of an official document, as an administrative
offense, is knowingly making false statements in official or public
documents. Both are grave offenses under the Uniform Rules on

64

Administrative Cases in the Civil Service, which carry with it the

penalty of dismissal on the first offense.22
Falsification of DTRs amounts to dishonesty.23 The evident purpose of
requiring government employees to keep a time record is to show their
attendance in office to work and to be paid accordingly. Closely
adhering to the policy of no work-no pay, a DTR is primarily, if not
solely, intended to prevent damage or loss to the government as would
result in instances where it pays an employee for no work done. 24
Respondents claim of good faith, which implies a sincere intent not to
do any falsehood or to seek any undue advantage, cannot be believed.
This Court pronounced
Good faith, here understood, is an intangible and abstract
quality with no technical meaning or statutory definition, and it
encompasses, among other things, an honest belief, the
absence of malice and the absence of design to defraud
or to seek an unconscionable advantage. An individuals
personal good faith is a concept of his own mind and,
therefore, may not conclusively be determined by his
protestations alone. It implies honesty of intention, and
freedom from knowledge of circumstances which ought to put
the holder upon inquiry. The essence of good faith lies in an
honest belief in the validity of ones right, ignorance of a
superior claim, and absence of intention to overreach another. x
x x25
In this case, respondents knew fully well that the entries they made in
their respective DTRs were false considering that it was physically
impossible for them to have reported for full work days when during
those times they were actually attending their regular classes, which
undoubtedly would take up most of the daytime hours of the
weekdays. With this knowledge, respondents did not bother to correct
the DTR entries to honestly reflect their attendance at their workplace
and the actual work they performed. Worse, they repeatedly did this
for a long period of time, consequently allowing them to collect their
full salaries for the entire duration of their public employment as staff
members of their father.

Respondents protestations that petitioner failed to prove their actual

attendance in their regular classes and thus, suggest that they may
not have been attending their classes, is preposterous and incredible,
simply because this is not in accord with the natural course of things.
The voluminous documentary evidence subpoenaed by petitioner from
UST and Centro Escolar University showing the schedule of classes of
respondents during the questioned period, along with the certificates
of matriculation painstakingly perused by GIO Generoso, strongly
militates against this claim. It would be the height of absurdity on the
part of respondents to voluntarily enroll in their respective courses, pay
school fees, and not attend classes but instead report for work. Even if
this was remotely possible, such a situation would be irreconcilable
with the respondents having graduated from their respective courses.
Without doubt, the scrutiny of the numerous school documents, the
DTRs submitted, and the payrolls from the office of the then Municipal
Accountant of Malabon overwhelmingly revealed that the classes in
which respondents enrolled for several school years were in stark
conflict with the time entries in the DTRs, and several payroll sheets
showed that respondents collected their full salaries corresponding to
the DTR entries. These findings of fact made by petitioner, being
supported by substantial evidence, are conclusive;26 more so that the
finding of false entries in the DTRs was affirmed by the CA.
Thus, the CA gravely erred when it exonerated respondents from
administrative guilt based on the findings of fact of petitioner which it
even affirmed. The jurisprudence27 adopted by the appellate court in
laying the legal basis for its ruling does not apply to the instant case
because said cases pertain to criminal liability for Falsification of Public
Document under the Revised Penal Code. The element of damage need
not be proved to hold respondents administratively liable.
But it cannot even be said that no damage was suffered by the
government. When respondents collected their salaries on the basis of
falsified DTRs, they caused injury to the government. The falsification
of ones DTR to cover up ones absences or tardiness automatically
results in financial losses to the government because it enables the
employee concerned to be paid salaries and to earn leave credits for

65

services which were never rendered. Undeniably, the falsification of a

DTR foists a fraud involving government funds.28
Likewise, the existence of malice or criminal intent is not a prerequisite
to declare the respondents administratively culpable. What is merely
required is a showing that they made entries in their respective DTRs
knowing fully well that they were false. This was evident in the many
documents viewed and reviewed by petitioner through GIO Generoso.
On the issue of prescription, we agree with petitioners contention that
the Office of the Ombudsman is given by R.A. No. 6770 a wide range of
discretion whether or not to proceed with an investigation of
administrative offenses even beyond the expiration of one (1) year
from the commission of the offense.29
Likewise, the dismissal of the criminal case involving the same set of
facts cannot benefit respondents to cause the dismissal of the
administrative charges against them. As we held in Tecson v.
Sandiganbayan30 -[I]t is a basic principle of the law on public officers that a public
official or employee is under a three-fold responsibility for
violation of a duty or for a wrongful act or omission. This simply
means that a public officer may be held civilly, criminally, and
administratively liable for a wrongful doing. Thus, if such
violation or wrongful act results in damages to an individual, the
public officer may be held civilly liable to reimburse the injured
party. If the law violated attaches a penal sanction, the erring
officer may be punished criminally. Finally, such violation may
also lead to suspension, removal from office, or
other administrative sanctions. This administrative liability is
separate and distinct from the penal and civil liabilities. x x x
Hence, there was no impropriety committed by petitioner when it
conducted the administrative investigation which led to the finding of
guilt against respondents.

As regards the applicability of Aguinaldo, our pronouncement therein is

clear that condonation of an administrative offense takes place only
when the public official is re-elected despite the pendency of an
administrative case against him. In the case of Maricar, prior to her
election as Councilor of now Malabon City, she held an appointive, not
an elective, position,i.e., Legislative Staff Assistant, appointed by her
very own father, then Councilor Edilberto Torres.
As mentioned above, falsification of a DTR (an official document)
amounts to dishonesty. Thus, respondents should be held
administratively liable. While dismissal was originally recommended for
imposition on respondents, the penalty was eventually tempered to
suspension of one (1) year without pay.
We agree with the imposition of the lower penalty considering that
respondents public employment with the thenSangguniang Bayan of
Malabon, even while they were regular college students, was of a
confidential character, and the arrangement was with the full
knowledge and consent of their father who appointed them to their
positions.
While this Court recognizes the relative laxity given to confidential
employees in terms of adjusted or flexible working hours, substantial
non-attendance at work as blatant and glaring as in the case of
respondents cannot be countenanced. Collecting full salaries for work
practically not rendered is simply, downright reprehensible. Inevitably,
this leads to the erosion of the publics faith in and respect for the
government.
WHEREFORE, the Decision dated January 6, 2004 and the Resolution
dated May 27, 2005 of the Court of Appeals areREVERSED and SET
ASIDE, and the Decision of the Office of the Ombudsman dated
November 9, 2001 isREINSTATED.
SO ORDERED.
x-----------------------------------------------------x

66

Investigation Report4 dated December 14, 1999, finding Cuanan guilty

of sexual harassment and recommending his forced resignation
without prejudice to benefits. In a Decision5 dated January 28, 2000,
Regional Director Labrador concurred in the findings of the
Investigating Committee and meted out the penalty of forced
resignation to Cuanan without prejudice to benefits.

CASE NO. 11

DEPARTMENT OF EDUCATION VS. GODOFREDO G. CUANAN

DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of
the Rules of Court assailing the Decision1 dated May 16, 2005 of the
Court of Appeals (CA) in CA-G.R. SP No. 87499 which set aside
Resolution No. 041147 dated October 22, 2004 of the Civil Service
Commission (CSC) finding respondent Godofredo G. Cuanan (Cuanan)
guilty of sexual harassment and dismissing him from service, and the
CA Resolution2 dated July 18, 2005 which denied the Motion for
Reconsideration of the Department of Education (DepEd).
The factual background of the case is as follows:
On March 11, 1996, Luzviminda Borja and Juliana Castro, on behalf of
their respective minor daughters, Lily Borja and Charo Castro, filed
before the Department of Education, Culture and Sports - Regional
Office No. III (DECS-RO No. III), Cabanatuan City, two separate
administrative complaints3 for Sexual Harassment and Conduct
Unbecoming a Public Officer against Cuanan, then Principal of Lawang
Kupang Elementary School in San Antonio, Nueva Ecija.
Acting on the complaints, DECS-RO No. III Regional Director Vilma L.
Labrador constituted an Investigating Committee, composed of three
DepEd officials from the province, to conduct a formal investigation.
Following the investigation, the Investigating Committee submitted its

In an Order6 dated April 13, 2000, then DepEd Secretary Andrew

Gonzales affirmed the Decision of Regional Director Labrador. On May
30, 2000, Cuanan filed a Petition for Reconsideration 7 thereof, but the
same was denied for lack of merit by Secretary Gonzales in a
Resolution8 dated June 19, 2000.
Cuanan elevated his case to the CSC. On January 20, 2003, the CSC
issued Resolution No. 030069,9 which set aside the June 19, 2000
Resolution of Secretary Gonzales and exonerated Cuanan from the
charge of sexual harassment. On January 23, 2003, copies of the
resolution were duly sent to the parties, including the DepEd. 10 Cuanan
received a copy of Resolution No. 030069 on January 31, 2003. 11
In a Letter dated February 3, 2003, Cuanan requested his
reinstatement as Elementary School Principal I.12 In a 1stIndorsement,
the District Supervisor recommended appropriate action.13 In a
2nd Indorsement dated February 4, 2003, Schools Division
Superintendent Dioscorides D. Lusung (Superintendent) recommended
that Cuanan be reinstated to duty as School Principal of San Antonio
District upon finality of the decision of the CSC.14 In a Letter15 dated
February 10, 2003, Regional Director Ricardo T. Sibug informed the
Superintendent that Cuanan could not be immediately reinstated to
the service until an order of implementation was received from the
Department Secretary.
Sometime in March 2003, DepEd Undersecretary Jose Luis Martin C.
Gascon sent a letter to the CSC requesting a copy of CSC Resolution
No. 030069 dated January 20, 2003. In a Letter 16 dated March 25,
2003, the CSC informed the DepEd that a copy of the requested
resolution was duly sent to it on January 23, 2003. Nonetheless, the
CSC sent another copy of the resolution to the DepEd for its reference.
The DepEd received said reference copy on March 28, 2003. 17
67

On April 11, 2003, then DepEd Secretary Edilberto C. de Jesus filed a

Petition for Review/Reconsideration18 with the CSC. No copy of the
pleading was served upon Cuanan.
On July 29, 2003, Secretary De Jesus filed a Supplemental Petition for
Review/Reconsideration19 reiterating the prayer for reversal of the
resolution. Again, no copy of the pleading was served upon Cuanan.
Subsequently, pursuant to Division Special Order No. 001 series of
2003 dated June 18, 2003, Cuanan was reinstated to his former
position as school principal effective April 30, 2003. 20 In Division
Special Order No. 285, series of 2003 dated July 8, 2003, Cuanan was
directed to return to duty.21 Based thereon, Cuanan requested payment
of salaries and his inclusion in the payroll, which the Division School
Superintendent of Nueva Ecija duly endorsed on November 7, 2003. 22
However, on October 22, 2004, the CSC issued Resolution No.
04114723 setting aside CSC Resolution No. 030069 dated January 20,
2003. It found Cuanan guilty of Sexual Harassment, Grave Misconduct
and Conduct Grossly Prejudicial to the Best Interest of the Service and
meted out the penalty of dismissal from the service with forfeiture of
retirement benefits, cancellation of his service eligibility, and perpetual
disqualification from holding public office. Cuanan received a copy of
the Resolution on November 9, 2004.24
Thirteen days later, or on November 22, 2004, Cuanan filed a petition
for certiorari25 with the CA seeking to annul Resolution No. 041147,
alleging that the CSC should not have entertained the petition for
review/reconsideration since the DepEd was not the complainant or the
party adversely affected by the resolution; that the petition for
review/reconsideration was filed out of time; and that Cuanan was not
furnished copies of the pleadings filed by the DepEd in violation of
procedural due process.
The DepEd sought the dismissal of the petition on the ground of
improper remedy, the mode of review from a decision of the CSC being
a petition for review under Rule 43 of the Rules of Court.

On May 16, 2005, the CA rendered a Decision 26 granting the petition

for certiorari and setting aside CSC Resolution No. 041147 dated
October 12, 2004. The CA held that while a motion for reconsideration
and a petition for review under Rule 43 were available remedies,
Cuanan's recourse to a petition for certiorari was warranted, since the
act complained of was patently illegal; that the CSC gravely abused its
discretion in granting the petition for review/reconsideration filed by
the DepEd without regard for Cuanan's fundamental right to due
process, since he was not duly notified of the petition for
review/reconsideration, nor was he required by the CSC to file a
comment thereon, much less, given a copy of the said petition; that
the DepEd failed to establish that the resolution was not yet final and
executory when it filed its petition for review/reconsideration.
DepEd filed a Motion for Reconsideration,27 but the CA denied the same
in its Resolution28 dated July 18, 2005.
Hence, the present petition on the following grounds:
I
WITH DUE RESPECT, THE COURT OF APPEALS GRAVELY ERRED
ON A QUESTION OF LAW IN TAKING COGNIZANCE OF THE
PETITION IN CA-G.R. SP NO. 87499, THE SAME NOT BEING THE
PROPER REMEDY IN ASSAILING CSC RESOLUTION NO. 041147
DATED OCTOBER 22, 2004.
II
WITH DUE RESPECT, THE COURT OF APPEALS GRAVELY ERRED
ON A QUESTION OF LAW IN ADJUDGING CSC AS HAVING
COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING
RESOLUTION NO. 041147 DATED OCTOBER 22, 2004.29
DepEd contends that the CA should have dismissed outright the
petition for certiorari because CSC decisions are appealable to the CA
by petition for review under Rule 43; that the filing of a motion for
reconsideration was a precondition to the filing of a petition

68

for certiorari under Rule 65; that the DepEd, even if not the
complainant, may question the resolution of the CSC; that Cuanan
failed to prove that the CSC's petition for review/reconsideration was
not seasonably filed; that even if Cuanan was not served a copy of the
pleadings filed by the DepEd, the CSC was not bound by procedural
rules.
Cuanan, on the other hand, contends that the DepEd cannot file a
motion for reconsideration from the CSC Resolution exonerating him,
since it is not the complainant in the administrative case and therefore
not a party adversely affected by the decision therein; that even if
DepEd may seek reconsideration of the CSC Resolution, the petition for
review/reconsideration was filed out of time; and that Cuanan's right to
due process was violated when he was not given a copy of the
pleadings filed by the DepEd or given the opportunity to comment
thereon.
The Court finds it necessary, before delving on the grounds relied upon
by the DepEd in support of the petition, to first resolve the question of
whether the DepEd can seek reconsideration of the CSC Resolution
exonerating Cuanan.
In a long line of cases, beginning with Civil Service Commission
v. Dacoycoy,30 and reiterated in Philippine National Bank v. Garcia,
Jr.,31 the Court has maintained that the disciplining authority qualifies
as a party adversely affected by the judgment, who can file an appeal
of a judgment of exoneration in an administrative case. CSC Resolution
No. 02160032allows the disciplining authority to appeal from a decision
exonerating an erring employee, thus:
Section 2. Coverage and Definition of Terms. - x x x (l) PARTY
ADVERSELY AFFECTED refers to the respondent against whom a
decision in a disciplinary case has been rendered or to the
disciplining authority in an appeal from a decision
exonerating the said employee. (Emphasis supplied)

Hence, Cuanan's exoneration under CSC Resolution No. 030069 may

be subject to a motion for reconsideration by the DepEd which, as the
appointing and disciplining authority, is a real party in interest.
Now, as to the merits of DepEd's arguments, the Court finds none.
The remedy of an aggrieved party from a resolution issued by the CSC
is to file a petition for review thereof under Rule 4333 of the Rules of
Court within fifteen days from notice of the resolution. Recourse to a
petition for certiorari under Rule 65 renders the petition dismissible for
being the wrong remedy. Nonetheless, there are exceptions to this rule,
to wit: (a) when public welfare and the advancement of public policy
dictates; (b) when the broader interest of justice so requires; (c) when
the writs issued are null and void; or (d) when the questioned
order amounts to an oppressive exercise of judicial authority. 34 As will
be shown forthwith, exception (c) applies to the present case.
Furthermore, while a motion for reconsideration is a condition
precedent to the filing of a petition for certiorari, immediate recourse
to the extraordinary remedy of certiorari is warranted where the order
is a patent nullity, as where the court a quo has no jurisdiction; where
petitioner was deprived of due process and there is extreme urgency
for relief; where the proceedings in the lower court are a nullity for lack
of due process; where the proceeding was ex parte or one in which the
petitioner had no opportunity to object.35 These exceptions find
application to Cuanan's petition for certiorari in the CA.
At any rate, Cuanan's petition for certiorari before the CA could be
treated as a petition for review, the petition having been filed on
November 22, 2004, or thirteen (13) days from receipt on November 9,
2004 of CSC Resolution No. 041147, clearly within the 15-day
reglementary period for the filing of a petition for review.36 Such move
would be in accordance with the liberal spirit pervading the Rules of
Court and in the interest of substantial justice.37
Furthermore, CSC Resolution No. 030069 has long become final and
executory. It must be noted that the records show that copies of CSC
Resolution No. 030069 were duly sent to the parties, including DepEd,

69

on January 23, 2003.38 Cuanan received a copy thereof on January 31,

2003,39 while the DepEd requested a copy sometime in March 2003, or
about two months later. Under the Rules of Evidence, it is presumed
that official duty has been regularly performed, unless
contradicted.40 This presumption includes that of regularity of service
of judgments, final orders or resolutions.
Consequently, the burden of proving the irregularity in official conduct
-- that is, non-receipt of the duly sent copy of CSC Resolution No.
030069 -- is on the part of the DepEd, which in the present case clearly
failed to discharge the same.41Thus, the presumption stands that CSC
Resolution No. 030069 dated January 20, 2003 had already become
final and executory when the DepEd filed its Petition for
Review/Reconsideration on April 11, 2003, more than two months later.
It is elementary that once judgment has become final and executory, it
becomes immutable and can no longer be amended or modified. In
Gallardo-Corro v. Gallardo,42 this Court held:
Nothing is more settled in law than that once a judgment attains
finality it thereby becomes immutable and unalterable. It may
no longer be modified in any respect, even if the modification is
meant to correct what is perceived to be an erroneous
conclusion of fact or law, and regardless of whether the
modification is attempted to be made by the court rendering it
or by the highest court of the land. Just as the losing party has
the right to file an appeal within the prescribed period, the
winning party also has the correlative right to enjoy the finality
of the resolution of his case. The doctrine of finality of judgment
is grounded on fundamental considerations of public policy and
sound practice, and that, at the risk of occasional errors, the
judgments or orders of courts must become final at some
definite time fixed by law; otherwise, there would be no end to
litigations, thus setting to naught the main role of courts of
justice which is to assist in the enforcement of the rule of law
and the maintenance of peace and order by settling justiciable
controversies with finality.43

Moreover, while it is true that administrative tribunals exercising quasijudicial functions are free from the rigidity of certain procedural
requirements, they are bound by law and practice to observe the
fundamental and essential requirements of due process in justiciable
cases presented before them.44 The relative freedom of the CSC
from the rigidities of procedure cannot be invoked to evade
what was clearly emphasized in the landmark case of Ang
Tibay v. Court of Industrial Relations: 45 that all administrative
bodies cannot ignore or disregard the fundamental and
essential requirements of due process.
Furthermore, Section 43.A.46 of the Uniform Rules in Administrative
Cases in the Civil Service provides:
Section 43.A. Filing of Supplemental Pleadings. - All pleadings
filed by the parties with the Commission, shall be copy
furnished the other party with proof of service filed with
the Commission.
Any supplemental pleading to supply deficiencies in aid of an
original pleading but which should not entirely substitute the
latter can be filed only upon a favorable action by the
Commission on the motion of a party to the case. The said
motion should be submitted within five (5) days from receipt of
a copy of the original pleading and it is discretionary upon the
Commission to allow the same or not or even to consider the
averments therein.(Emphasis supplied)
Cuanan undoubtedly was denied procedural due process. He had no
opportunity to participate in the proceedings for the petition for review/
reconsideration filed by the DepEd, since no copy of the pleadings filed
by the DepEd were served upon him or his counsel; nor was he even
required by the CSC to file his comments thereon. Considering that
pleadings filed by the DepEd were not served upon Cuanan, they may
be treated as mere scraps of paper which should not have merited the
attention or consideration of the CSC.

70

WHEREFORE, the petition is DENIED. The assailed Decision and

Resolution of the Court of Appeals in CA-G.R. SP No. 87499
are AFFIRMED.
SO ORDERED.
x-----------------------------------------------------x

CASE NO. 12

OFFICE OF THE OMBUDSMAN VS. ROLANDO L. MAGNO

DECISION
CHICO-NAZARIO, J.:
This is a Petition for Certiorari and Prohibition under Rule 65 of the
Revised Rules of Court seeking to nullify and set aside the
Decision1 dated 7 November 2006 and Resolution2 dated 14 June 2007
of the Court of Appeals in CA-G.R. SP No. 91080 entitled, Rolando L.
Magno v. Lizabeth Carreon. The Court of Appeals reversed the Decision
promulgated on 3 June 20053 and Order issued 22 August 20054 of the
Office of the Ombudsman (Ombudsman) in OMB-ADM-0-00-0148 and
denied the Omnibus Motion to Intervene and for Reconsideration of the
Ombudsman in CA-G.R. SP No. 91080. The Ombudsman, in OMB-ADM0-00-0148, dismissed from service private respondent Rolando L.
Magno (Magno), Schools Division Superintendent of the Department of
Education, Paraaque City Division, and Co-Chairman of the Paraaque
City School Board (PCSB), for Grave Misconduct.
The following are the factual antecedents:

Lizabeth Carreon (Carreon) alleging to be the legal representative of

Kejo Educational System, Merylvin Publishing House, and Southern
Christian Commercial which were distributors and suppliers of
textbooks to public schools in Metro Manila filed a complaintaffidavit5 on 10 February 2000 before the Ombudsman against Magno
and other officials of Paraaque City, particularly: Joey P. Marquez
(Marquez), City Mayor and Chairman of the PCSB; Silvestre A. de Leon
(de Leon), City Treasurer; Flocerfida Babida (Babida), City Budget
Officer; Mar Jimenez (Jimenez), Executive Assistant to the City Mayor;
and Antonette Antonio (Antonio), Assistant to the City Mayor
(hereinafter collectively referred to as Magno, et al.). Carreon charged
Magno, et al. with violation of Section 3, paragraphs (e) and (f) of
Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, for allegedly having failed to pay the purchase price of
books ordered and delivered to the different public schools in
Paraaque City.6
Carreon averred that sometime in the first quarter of 1998, she was
approached by a close family friend, Noli Aldip (Aldip), who also
happened to be a friend of Marquez. Aldip introduced her to Jimenez
and Antonio; the two, in turn, introduced her to Magno. Immediately
after their meeting, Jimenez and Antonio proposed to Carreon that if
the companies she represented, i.e., Kejo Educational System, Merylvin
Publishing House, and Southern Christian Commercial, were willing to
do business with PCSB, they could facilitate, through the Office of the
City Mayor, book purchases for Paraaque City public schools. Magno,
for his part, assured Carreon that he, Jimenez, and Antonio, could
arrange the passage of the required PCSB Resolutions for said business
transaction.
Carreon claimed that Jimenez and Antonio informed her that they had
the go-signal of the City Mayor for the book purchases. Subsequently,
she learned through Magno, Jimenez, and Antonio that the PCSB had
already passed the following Resolutions in July 1998:
Resolutio
n No.

Purpose

Amount

71

P1,122,250.0 According to Carreon, she was assured several times that payments for
the said dictionaries and textbooks would be released soon. On 17
January 2000, Carreon sent a demand letter to Marquez. For the first
time, however, Marquez questioned the authenticity of his signatures
1,247,500.00 on the PRs and POs for the dictionaries and textbooks.

25

For 500 copies of Diksyonaryong Pilipino

26

For 500 copies of Oxford Dictionary

28

For DECS Basic Textbooks in Grade II

29

For DECS Basic Textbooks

Carreon asserted that the actions of Magno, et al. before, during, and
2,021,250.00 subsequent to the delivery of the dictionaries and textbooks were done
in evident bad faith and manifest evil design; and that the nonpayment of said books caused her undue injury, in violation of Sections
2,021,250.00 3(e) and (f) of Republic Act No. 3019.

TOTAL

6,412,250.0

Four months after, in November 1998, Carreon said that Magno,

Jimenez, and Antonio notified her that the funding for the dictionary
and textbook purchases had been arranged and, in fact, some of the
necessary documents were already signed. Carreon was provided by
Magno, Jimenez, and Antonio with copies of Requests for Allocation of
Allotment (ROAs) and Disbursement Vouchers (DVs) signed by Magno;
Purchase Requests (PRs) No. 0001391, No. 0001387, No. 0001388 and
No. 0001390, signed by Marquez and Magno; as well as Purchase
Orders (POs) for individual requests signed by Marquez and the
Paraaque Purchasing Officer. Magno, Jimenez, and Antonio then
advised Carreon to start making deliveries of the dictionaries and
textbooks.
Allegedly relying on the representations of Magno, Jimenez, and
Antonio, Carreon caused the deliveries of the dictionaries and
textbooks, amounting to P6,412,201.91, to the PCSB, evidenced by
delivery receipts dated 14, 21, and 22 December 1998, 7 signed by
Teresita G. Diocadiz, Supply Officer of the PCSB. According to the
Supplies and Materials Distribution Sheet, the dictionaries and
textbooks were distributed to the various Paraaque public schools on
2 February 1999 by the officials of the PCSB, particularly Marquez and
Magno.8

Carreons complaint-affidavit gave rise to two separate proceedings

before the Ombudsman: a criminal investigation, docketed as OMB-000-0350; and an administrative investigation, docketed as OMB-ADM0-00-0148. The administrative charges against Magno, et al. were
particularly for Misconduct and Oppression.
Apparently in negotiations for the amicable settlement of her claims,
Carreon filed a Manifestation in OMB-0-00-0350 dated September 2000
before the Evaluation and Preliminary Investigation Bureau of the
Office of the Ombudsman withdrawing her complaint-affidavit, without
prejudice to its re-filing in case the parties fail to reach an agreement. 9
On 16 January 2001, finding enough basis to proceed with the
administrative investigation of the case, the Director of the
Administrative Investigation Bureau (AIB) of the Office of the
Ombudsman issued an Order to proceed with the investigation on the
administrative liability of Magno, et al. in OMB-ADM-0-00-0148, it
appearing that the complaint was sufficient in form and substance.
Magno, et al. were directed to file their counter-affidavits. 10
In a letter11 dated 28 March 2001 and addressed to the AIB Director,
Magno, et al. (except Antonio), authorized Atty. Leo Luis Mendoza (Atty.
Mendoza) to appear on their behalf in the preliminary conference on
OMB-ADM-0-00-0148 and to present and submit the necessary
documents/affidavits as may be required by law and/or the AIB.

72

On 16 April 2001, Atty. Mendoza filed a Manifestation 12 on behalf of

Magno, et al. (except Antonio), adopting in OMB-ADM-0-00-0148 the
Joint Counter-Affidavit already submitted in the criminal proceedings in
OMB-0-00-0350.13 In said Joint Counter-Affidavit, filed on 3 April 2000
by Magno, et al. (except Antonio) in OMB-0-00-0350, but which did not
bear Magnos signature, it was asserted that the supposed contracts
for the book purchases were null and void because the Board
Resolutions approving the same were invalid and could not legally bind
the city and its funds, given that the signatures of Marquez thereon
were allegedly forged. It was further contended therein that the
contracts for the book purchases violated existing law and rules and
regulations regarding government contracts, since there was an
absence of (1) public bidding, as mandated by Sections 356 and 366 of
the Local Government Code; (2) a certification issued by Marquez, as
PCSB Chairman, on the need for the dictionaries and textbooks
purchased and where these were to be used; (3) a certification by the
local budget officer, accountant, and treasurer, showing that an
appropriation for the book purchases existed, that the estimated
amount for the same had been obligated, and that the funds were
available for the purpose, as required by Section 360 of the Local
Government Code; and (4) Disbursement Vouchers properly issued and
signed by the authorized public officials. The Joint Counter-Affidavit
raised as additional ground for dismissal of the complaint-affidavit
Carreons lack of legal capacity to sue and lack of cause of action
against the Paraaque City officials for failure to show any
documentary proof that she was indeed the legal representative of the
book distributors and suppliers. Hence, it was argued in the Joint
Counter-Affidavit that Carreon delivered the books at her own risk and
must bear the loss for the non-payment thereof. The same Joint
Counter-Affidavit also presented the defenses for each of the
Paraaque official involved. For Magno, in particular, it was admitted
therein that he signed the ROAs and PRs for the books supplied by Kejo
Educational System, Merylvin Publishing House, and Southern Christian
Commercial, but it was done in good faith and simply in compliance
with his duty as the requesting or requisitioning official for PCSB. And,
it was denied in the Joint Counter-Affidavit that Magno dealt with
Carreon regarding these purchases.14

In the meantime, separate Ex-Parte Manifestations15 were filed by Kejo

Educational System,16Merylvin Publishing House,17 and Southern
Christian Commercial,18 disclaiming the authority of Carreon to file with
the Ombudsman the complaint-affidavit against Magno, et al. on their
behalf.
After holding a preliminary conference, the Ombudsman issued on 23
November 2001 an Order submitting OMB-ADM-0-00-0148 for decision.
The Office of the Ombudsman rendered its Decision in OMB-ADM-0-000148 on 3 June 2005 holding only Magno and Jimenez guilty of Grave
Misconduct and dismissing them from service. The dispositive portion
of the said Decision reads:
WHEREFORE, premises considered, this Office rules and so holds
that:
1. Respondent ROLANDO L. MAGNO is hereby FOUND GUILTY of
the offense of GRAVE MISCONDUCT, and for which he is hereby
meted the penalty of DISMISSAL FROM THE SERVICE WITH ALL
ITS ACCESSORY PENALTIES, pursuant to Section 52(A-3), Rule IV,
Uniform Rules on Administrative Cases in the Civil Service;
2. Respondent MARIO "MAR" L. JIMENEZ is hereby found guilty of
GRAVE MISCONDUCT and for which he is hereby meted the
penalty of DISMISSAL FROM THE SERVICE WITH ALL ITS
ACCESSORY PENALTIES, pursuant to Section 52(A-3), Rule IV,
Uniform Rules on Administrative Cases in the Civil Service. In
view, however, of recent developments which now preclude this
Office from dismissing him from office, it is (sic) hereby ordered
the forfeiture of his retirement benefits and his perpetual
disqualification for reemployment in the government service;
3. Respondents FLORCEFIDA M. BABIDA and SILVESTRE A. DE
LEON are hereby ABSOLVED of the instant charge; and

73

4. For having been rendered moot and academic, the instant

case against respondents JOEY P. MARQUEZ and ANTONETTE
ANTONIO is hereby DISMISSED.19
Magno filed with the Ombudsman a Motion for Reconsideration of the
afore-quoted Decision. He alleged in his Motion that he was not a
signatory to the Joint Counter-Affidavit submitted on 3 April 2000 in
OMB-0-00-0350 and adopted in OMB-ADM-0-00-0148; consequently, he
argued that he "can not be adversely affected by whatever
unfavorable allegations contained therein regarding the refusal of [the
other Paraaque City officials] to pay Carreon due to lack of
funds."20 The 3 June 2005 Decision of the Ombudsman in OMB-ADM-000-0148, which adjudged Magno guilty of Grave Misconduct based on
the Joint Counter-Affidavit which he did not execute, was clearly
erroneous. Contrary to the allegations in the said Joint CounterAffidavit, Magno did not deny signing the ROAs and the PRs for the
book purchases but explained that its was only an initial step for the
purchase of the dictionaries and textbooks, and was proper and legal
since it was part of his official functions and duties. Moreover, to
negate the claim of injury, Magno attached a certification 21 dated 15
August 2003, issued by the current Paraaque City Treasurer showing
that payment for the dictionaries and textbooks were already received
by Kejo Educational System,22 Merylvin Publishing House23 and
Southern Christian Commercial.24
The Ombudsman, in its Order issued on 22 August 2005, denied
Magnos Motion for Reconsideration and affirmed its Decision of 3 June
2005.
Magno elevated his case to the Court of Appeals via a Petition for
Review on Certiorari under Rule 43 of the Rules of Court, where it was
docketed as CA-G.R. SP No. 91080. Magno grounded his appeal on the
following arguments: that Carreon had no legal standing to institute
the administrative case against him; that he signed the ROAs and PRs
for the book purchases as part of his official duties, and that, even
then, the said documents had no bearing unless approved by the
appropriate officials of the Paraaque City government; and that since
he was administratively charged only with Misconduct and Oppression
for his supposed violation of Sections 3(e) and (f) of Republic Act No.

3019, he could not be found guilty of Grave Misconduct without

violating his right to due process.
The Court of Appeals issued on 1 March 2006 a preliminary injunction
to enjoin the implementation of the 3 June 2005 Decision of the
Ombudsman in OMB-ADM-0-00-0148 dismissing Magno from service.
Upon Carreons failure to file a Comment on Magnos Petition in CAG.R. SP No. 91080 as directed, the appellate court submitted the case
for decision.
On 7 November 2006, the Court of Appeals reversed the Ombudsman
and dismissed the administrative charges against Magno, ratiocinating
that:
The Office of the Ombudsman erred in finding [Magno] guilty of
grave misconduct. [Magno] was charged with violation of
Section 3 (e) and (f), R.A. 3019. He was not charged with grave
misconduct, as to put him on notice that he stands accused of
misconduct coupled with any of the elements of corruption,
willful intent to violate the law or established rules. Therefore,
he was not afforded the opportunity to rebut the elements of
corruption, willful intent to violate the law, or flagrant disregard
of established rules in grave misconduct, in violation of his
constitutional right to be informed of the charges against him. 25
On 24 November 2006, the Ombudsman filed with the Court of Appeals
an Omnibus Motion to Intervene and for Reconsideration 26 of the
appellate courts Decision in CA-G.R. SP No. 91080. The Ombudsman
justified its move to intervene by reasoning that CA-G.R. SP No. 91080
concerned a decision rendered by the Ombudsman pursuant to its
function as the disciplinary authority over public officials and
employees. Its 3 June 2005 Decision in OMB-ADM-0-00-0148 finding
Magno administratively liable for Grave Misconduct was based on
substantial evidence. It did not violate due process, as due process
never required the Ombudsman to limit its findings to the designation
of the offense in the complaint.

74

Magno opposed the Omnibus Motion of the Ombudsman, contending

that the latter was not a real party-in-interest, and its motion to
intervene was already belatedly filed since such should have been filed
before the Court of Appeals promulgated its Decision in CA-G.R. SP No.
91080.
In a Resolution27 dated 14 June 2007, the Court of Appeals denied the
Omnibus Motion of the Ombudsman, and pronounced that the
arguments raised in Magnos Petition in CA-G.R. SP No. 91080 had
already been adequately discussed and passed upon in the Decision
dated 7 November 2006.
Hence, the Petition at bar, in which the Ombudsman asserts that the
Court of Appeals committed grave abuse of discretion amounting to
lack or excess of jurisdiction in the following manner:
THE RESPONDENT COURT OF APPEALS GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
IN DENYING THE OMNIBUS MOTION FOR INTERVENTION AND
RECONSIDERATION FILED BY PETITIONER OMBUDSMAN, IT
APPEARING THAT THE QUESTIONED RESOLUTION AND DECISION
ARE NOT IN ACCORD WITH LAW AND APPLICABLE DECISIONS OF
THIS HONORABLE COURT UNDER THE FOLLOWING
CIRCUMSTANCES:
A. PETITIONER OMBUDSMAN HAS SUFFICIENT LEGAL
INTEREST WARRANTING ITS INTERVENTION IN CA-GR SP
NO. 91080, ENTITLED "ROLANDO L. MAGNO VS.
LIZABETH CARREON."
B. PETITIONER OMBUDSMAN DID NOT VIOLATE PRIVATE
RESPONDENT MAGNOS RIGHT TO DUE PROCESS WHEN
IT DECLARED HIM ADMINISTRATIVELY LIABLE FOR GRAVE
MISCONDUCT.
The Ombudsman prays that the Court issue (1) a writ of certiorari
setting aside the 7 November 2006 Decision and 14 June 2007
Resolution of the Court of Appeals and reinstating the 3 June 2005

Decision and 22 August 2005 Resolution of the Ombudsman; and (2) a

writ of prohibition perpetually restraining Magno and the Court of
Appeals from enforcing the assailed Decision and Resolution.
The present Petition is without merit and is accordingly dismissed by
this Court.
Petitions for certiorari and prohibition are special remedies governed
by Rule 65 of the Revised Rules of Court, relevant provisions of which
read:
SEC. 1. Petition for Certiorari. When any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, and
there is no appeal, nor any plain, speedy, and adequate remedy
in the ordinary course of law, a person aggrieved thereby may
file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and
granting such incidental reliefs as law and justice may require.
xxxx
SEC. 2. Petition for prohibition. When the proceedings of any
tribunal, corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial functions, are
without or in excess of its or his jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, and
there is no appeal or any other plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging
the facts with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceeding
in the action or matter specified therein, or otherwise granting
such incidental reliefs as law and justice may require.

75

The rules are explicit that the special remedies of certiorari and
prohibition may only be availed of when the tribunal, corporation,
board, officer, or person, exercising judicial, quasi-judicial, or
ministerial functions, acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal or any other plain,
speedy, and adequate remedy in the ordinary course of law.

To allow intervention, it must be shown that (a) the movant has a legal
interest in the matter in litigation or otherwise qualified, and (b)
consideration must be given as to whether the adjudication of the
rights of the original parties may be delayed or prejudiced, or whether
the intervenors rights may be protected in a separate proceeding or
not. Both requirements must concur, as the first is not more important
than the second.32

A petition for certiorari (as well as one for prohibition) will only prosper
if grave abuse of discretion is manifested.28 The burden is on the part
of the petitioner to prove not merely reversible error, but grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of
the public respondent issuing the impugned order. Mere abuse of
discretion is not enough; it must be grave.29The term grave abuse of
discretion has a technical and set meaning. Grave abuse of discretion
is a capricious and whimsical exercise of judgment so patent and gross
as to amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, as where the power is exercised in an
arbitrary and despotic manner because of passion or hostility.30

In the case at bar, the Court holds that the Ombudsman failed to
sufficiently establish its legal interest to intervene in CA-G.R. SP No.
91080.

Judging from the foregoing standards, there is no grave abuse of

discretion in the case at bar. There is factual and legal justification for
the denial by the Court of Appeals of the Ombudsmans Omnibus
Motion.
The Court notes that only Carreon was named a respondent in CA-G.R.
SP No. 91080; the Ombudsman was not impleaded as a party in said
case, even as a nominal party. The Ombudsman, despite receiving
notices from said case, failed to immediately move to intervene in CAG.R. SP No. 91080. Instead, the Ombudsman waited until the Court of
Appeals rendered its judgment dismissing the charges against Magno
before filing its Omnibus Motion to Intervene and for Reconsideration.
The appellate court no longer allowed the Ombudsman to intervene.
Intervention is not a matter of right but may be permitted by the
courts only when the statutory conditions for the right to intervene are
shown. Thus, the allowance or disallowance of a motion to intervene is
addressed to the sound discretion of the court. 31

Legal interest, which entitles a person to intervene, must be in the

matter in litigation and of such direct and immediate character that the
intervenor will either gain or lose by direct legal operation and effect of
the judgment.33
The Ombudsman invokes its disciplining authority over public officers
and employees in an attempt to justify its intervention in CA-G.R. SP
No. 91080. It was in the exercise of such disciplining authority that the
Ombudsman conducted the investigation in OMB-ADM-0-00-0148, the
administrative case against Magno and the other Paraaque City
officials. As a result of such investigation, the Ombudsman rendered its
Decision of 3 June 2005, finding Magno guilty of Grave Misconduct and
dismissing him from service.
That it was its decision, rendered as the disciplining authority over
Magno, which was the subject of the appeal in CA-G.R. SP No. 91080,
did not necessarily vest the Ombudsman with legal interest to
intervene in the said case. Every decision rendered by the Ombudsman
in an administrative case may be affirmed, but may also be modified or
reversed on appeal this is the very essence of appeal. In case of
modification or reversal of the decision of the Ombudsman on appeal,
it is the parties who bear the consequences thereof, and the
Ombudsman itself would only have to face the error/s in fact or law
that it may have committed which resulted in the modification or
reversal of its decision.

76

Moreover, the reason for disallowing the disciplining authority from

appealing the reversal of its decision, as decided in National Appellate
Board of the National Police Commission v. Mamauag,34 citing Mathay,
Jr. v. Court of Appeals,35 is also true for precluding said disciplining
authority from intervening in the appeal of its decision, to wit:
RA 6975 itself does not authorize a private complainant to
appeal a decision of the disciplining authority. Sections 43 and
45 of RA 6975 authorize "either party" to appeal in the instances
that the law allows appeal. One party is the PNP memberrespondent when the disciplining authority imposes the penalty
of demotion or dismissal from the service. The other party is the
government when the disciplining authority imposes the penalty
of demotion but the government believes that dismissal from
the service is the proper penalty.
However, the government party that can appeal is not the
disciplining authority or tribunal which previously heard
the case and imposed the penalty of demotion or
dismissal from the service. The government party appealing
must be one that is prosecuting the administrative case against
the respondent. Otherwise, an anomalous situation will
result where the disciplining authority or tribunal
hearing the case, instead of being impartial and
detached, becomes an active participant in prosecuting
the respondent. Thus, in Mathay, Jr. v. Court of Appeals,
decided after Dacoycoy, the Court declared:
To be sure, when the resolutions of the Civil Service
Commission were brought before the Court of Appeals,
the Civil Service Commission was included only as a
nominal party. As a quasi-judicial body, the Civil Service
Commission can be likened to a judge who should
"detach himself from cases where his decision is
appealed to a higher court for review."
In instituting G.R. No. 126354, the Civil Service
Commission dangerously departed from its role as
adjudicator and became an advocate. Its mandated

function is to "hear and decide administrative cases

instituted by or brought before it directly or on appeal,
including contested appointments and to review
decisions and actions of its offices and agencies," not to
litigate. (Emphasis ours.)
In Pleyto v. Philippine National Police Criminal Investigation and
Detection Group,36 the Court further warned that:
The court or the quasi-judicial agency must be detached and
impartial, not only when hearing and resolving the case before
it, but even when its judgment is brought on appeal before a
higher court. The judge of a court or the officer of a quasijudicial agency must keep in mind that he is an adjudicator who
must settle the controversies between parties in accordance
with the evidence and the applicable laws, regulations, and/or
jurisprudence. His judgment should already clearly and
completely state his findings of fact and law. There must be no
more need for him to justify further his judgment when it is
appealed before appellate courts. When the court judge or the
quasi-judicial officer intervenes as a party in the appealed case,
he inevitably forsakes his detachment and impartiality, and his
interest in the case becomes personal since his objective now is
no longer only to settle the controversy between the original
parties (which he had already accomplished by rendering his
judgment), but more significantly, to refute the appellants
assignment of errors, defend his judgment, and prevent it from
being overturned on appeal.
Equally relevant herein is Section 2, Rule 19 of the Revised Rules of
Court, which states that the motion to intervene may be filed at any
time before rendition of judgment by the court. The period within which
a person may intervene is thus restricted. After the lapse of this period,
it will not be warranted anymore. This is because, basically,
intervention is not an independent action but is ancillary and
supplemental to an existing litigation.37
In the instant case, the Ombudsman moved to intervene in CA-G.R. SP
No. 91080 only after the Court of Appeals had rendered its decision
77

therein. It did not offer any worthy explanation for its belated attempt
at intervention, and merely offered the feeble excuse that it was not
ordered by the Court of Appeals to file a Comment on Magnos Petition.
Even then, as the Court has already pointed out, the records disclose
that the Ombudsman was served with copies of the petition and
pleadings filed by Magno in CA-G.R. SP No. 91080, yet it chose not to
immediately act thereon.
While there may be cases in which the Court admitted and granted a
motion for intervention despite its late filing to give way to substantive
justice, the same is not applicable to the case at bar, for here, not only
did the Ombudsman belatedly move for intervention in CA-G.R. SP No.
91080, but more importantly, it has no legal interest at all to intervene.
The absence of the latter is insurmountable.
Since the Court of Appeals denied the intervention of the Ombudsman
in CA-G.R. SP No. 91080, then the Court of Appeals could not admit,
much less, take into account the Ombudsmans Motion for
Reconsideration of the Decision dated 7 November 2006. In the
absence of any validly filed Motion for Reconsideration of the said
Decision or any appeal thereof taken to this Court within the prescribed
period, then the same has become final and executory, and beyond the
power of this Court to review even if the Decision should contain any
errors.
The Ombudsman, however, insists that this Court delve into the merits
of the Court of Appeals Decision dated 7 November 2006,
on certiorari instead of appeal, alleging grave abuse of discretion on
the part of the appellate court in promulgating the same.
Firstly, this Petition for Certiorari of the 7 November 2006 Decision of
the Court of Appeals was filed beyond the reglementary period for
doing so.
According to Section 4, Rule 65 of the Revised Rules of Court, a petition
for certiorari may be filed not later than 60 days from receipt of the
judgment, order or resolution sought to be assailed in the Supreme
Court. The Ombudsman received a copy of the Court of Appeals

Decision dated 7 November 2006 on 9 November 2006. It had only

until 8 January 2008 to file a petition forcertiorari assailing the said
Decision. This period was not tolled by the filing by the Ombudsman of
its Omnibus Motion on 24 November 2006, as the denial of its
intervention by the appellate court in the assailed Resolution dated 14
June 2007 resulted in the non-admittance of its motion for
reconsideration. Still, according to Section 4, Rule 65 of the Revised
Rules of Court, only the filing of a motion for reconsideration interrupts
the 60-day reglementary period for the filing of a petition for certiorari.
The results would have been different had the Ombudsman been
successful in the instant Petition to have the Resolution dated 14 June
2007 of the Court of Appeals, denying its motion to intervene,
reversed; because, then, its motion for reconsideration of the Decision
dated 7 November 2006 of the appellate court would have also been
deemed admitted and would have suspended the running of the 60day reglementary period for the filing of a petition for certiorari.
Regrettably for the Ombudsman, it failed in this regard.
Secondly, even if this Court disregards the lapse of the reglementary
period for the filing of a petition for certiorari assailing the 7 November
2008 Decision of the Court of Appeals, it will still not issue the writ
prayed for by the Ombudsman since it is not persuaded that the
assailed Decision had been rendered by the appellate court in grave
abuse of discretion.
The administrative charges against Magno, arising from his alleged
violation of Sections 3(e) and (f) of Republic Act No. 3019, were
Misconduct and Oppression. Magno, in his pleadings filed before the
Ombudsman, argued and presented evidence based on such charges.
However, the Ombudsman finally adjudged him to be guilty of Grave
Misconduct for which he was ordered dismissed from service.
Misconduct has been defined as improper or wrongful conduct. It is the
transgression of some established and definite rule of action, a
forbidden act, a dereliction of duty, willful in character, and implies
wrongful intent and not mere error in judgment. It generally means
wrongful, improper or unlawful conduct motivated by a premeditated,
obstinate or intentional purpose. The term, however, does not
78

necessarily imply corruption or criminal intent. To constitute an

administrative offense, misconduct should relate to or be connected
with the performance of the official functions and duties of a public
officer. On the other hand, when the elements of corruption, clear
intent to violate the law or flagrant disregard of established rule are
manifest, the public officer shall be liable for grave misconduct. 38
Simple Misconduct is distinct and separate from Grave Misconduct. The
Court clarified in Landrito v. Civil Service Commission39 that "in grave
misconduct, as distinguished from simple misconduct, the elements of
corruption, clear intent to violate the law or flagrant disregard of
established rule, must be manifest."
In point is the Courts ruling in Civil Service Commission v.
Lucas,40 where:
The issues are (a) whether respondent Lucas was denied due
process when the CSC found him guilty of grave misconduct on
a charge of simple misconduct, and (b) whether the act
complained of constitutes grave misconduct.
Petitioner anchors its position on the view that "the formal
charge against a respondent in an administrative case need not
be drafted with the precision of an information in a criminal
prosecution. It is sufficient that he is apprised of the substance
of the charge against him; what is controlling is the allegation of
the acts complained of, and not the designation of the offense."
We deny the petition.
As well stated by the Court of Appeals, there is an existing
guideline of the CSC distinguishing simple and grave
misconduct. In the case of Landrito vs. Civil Service
Commission, we held that "in grave misconduct as distinguished
from simple misconduct, the elements of corruption, clear intent
to violate the law or flagrant disregard of established rule, must
be manifest," which is obviously lacking in respondents case.
Respondent maintains that as he was charged with simple

misconduct, the CSC deprived him of his right to due process by

convicting him of grave misconduct.
We sustain the ruling of the Court of Appeals that: (a) a basic
requirement of due process is that a person must be duly
informed of the charges against him and that (b) a person can
not be convicted of a crime with which he was not charged.
Administrative proceedings are not exempt from basic and
fundamental procedural principles, such as the right to due
process in investigations and hearings.
The right to substantive and procedural due process is
applicable in administrative proceedings.
The essence of due process in administrative proceedings is the
opportunity to explain ones side or seek a reconsideration of the
action or ruling complained of.41 As found by the Court of Appeals,
Magno was clearly deprived of his right to due process when he was
convicted of a much serious offense, carrying a more severe penalty,
without him being properly informed thereof or being provided with the
opportunity to be heard thereon.
WHEREFORE, premises considered, the instant Petition
for Certiorari and Prohibition isDISMISSED, without prejudice to the
outcome of the criminal cases still pending against private respondent
Rolando L. Magno for the same acts.
SO ORDERED.

x-----------------------------------------------------x

CASE NO. 13

79

NATIONAL APPELLATE BOARD (NAB) VS. JOHN MAMAUAG

The Case
Before the Court is a petition for review [1] assailing the 6
September 2001 Decision[2] of the Court of Appeals. The Court of
Appeals set aside the 3 July 1997 Resolution of Philippine National
Police (PNP) Chief Recaredo Sarmiento II (PNP Chief Sarmiento), the
3 March 2000 Decision and the 30 June 2000 Resolution, both of the
National Appellate Board (NAB) of the National Police Commission.

The incident drew the attention of the media and spawned several
cases. One was a criminal case for child abuse under Republic Act No.
7610[3] against Judge Angeles. Another was an administrative
complaint for Grave Misconduct filed by Judge Angeles against Ganias,
Mamauag, Almario, Cario, Felipe and Garcia. Judge Angeles later
impleaded Billedo as additional respondent.
In her administrative complaint, Judge Angeles alleged:
1.

On March 2, 1995, respondents Ganias, Almario and

Mamauag submitted an Initial Investigation Report to the
District Director, CPDC, and respondent Ganias turned over a
Report to the DSWD merely on the basis of a verbal report of
Agnes Lucero on Judge Reyes alleged maltreatment of Nancy
Gaspar and Proclyn Pacay without getting the required sworn
statements of the two (2) girls and Agnes Lucero;

2.

While the two girls were under police custody, respondents

found in the possession of Pacay several items of jewelry and
clothing materials belonging to and stolen from complainant
Judge Angeles. Complainants witnesses, Dr. Sagradia Aldova,
Oliva Angeles and Mary Ann Agustin requested the
respondents to register in the police logbook the discovery of
the stolen articles but to no avail;

3.

Despite the insistent request of said witnesses and

subsequently of the complainant that a report for qualified
theft be entered in the police blotter, respondents maliciously
refused to act upon the incident and conduct further
investigation;

4.

Respondents bad faith and highly irregular conduct in

handling the maltreatment charge against complainant was
also manifested when respondents did not give her a chance
to explain her side by not contacting her although her
residence is just a few houses away from the police station;

The Antecedent Facts

Very early in the morning of 2 March 1995, Nancy Gaspar
(Gaspar) and Proclyn Pacay (Pacay) left the residence of Judge
Adoracion G. Angeles (Judge Angeles) in Quezon City. Gaspar and
Pacay were both minors and were later classified as moderate or mild
mental retardates by the Department of Social Welfare and
Development (DSWD). Agnes Lucero (Lucero) found Gaspar and
Pacay wandering around the vicinity of the Philippine Rabbit bus
terminal in Cubao. Gaspar and Pacay narrated to Lucero stories of
maltreatment and non-payment of salary by Judge Angeles.
Around 4:00 a.m., Lucero brought Gaspar and Pacay to the Baler
Police Station 2, Central Police District Command (CPDC), Quezon
City. At the police station, desk officer SPO1 Jaime Billedo (Billedo)
recorded the girls complaint in the police blotter. On Billedos
instruction, SPO1 Roberto C. Cario (Cario) brought Gaspar and
Pacay to the East Avenue Medical Center for the requisite medical
examination. Later, the two girls were returned to the police station
where Cario interviewed them. Carios Initial Investigation Report
was reviewed and signed by SPO2 Eugene V. Almario (Almario) and
approved by P/Insp. John A. Mamauag (Mamauag). Later, SPO1
Vivian M. Felipe (Felipe) and SPO4 Erlinda L. Garcia (Garcia)
escorted Gaspar and Pacay to the DSWD. P/Insp. Roberto V. Ganias
(Ganias) signed the Letter of Turnover to the DSWD.

80

5.

Even before she was informed of the accusations against

her, the police leaked the baseless maltreatment case against
her as shown by the presence of so many people and
members of the media as well as the Human Rights
Commission personnel at the police station;

6.

The fact that no case has yet been filed against her shows
that the whole event was maliciously manipulated by her
detractors to harass and malign complainant with the willing
assistance of men in uniform.[4]

The Inspectorate and Legal Affairs Division (ILAD) of the CPDC

investigated the administrative complaint. After its investigation, the
ILAD recommended the dismissal of the charges.
In a
Resolution[5] dated 10 April 1995, the CPDC District Director approved
the recommendation and dismissed the complaint. Not satisfied with
the outcome of her complaint, Judge Angeles moved for reinvestigation of the case before PNP Chief Sarmiento.
The Ruling of the PNP Chief
In a Decision[6] dated 7 June 1996, PNP Chief Sarmiento ruled as
follows:
WHEREFORE, this Headquarters finds: Respondent[s] P/CINSP.
ROBERTO GANIAS, SPO1 Jaime Billedo, and SPO1 Roberto Cario guilty
of Serious Neglect of Duty and orders their dismissal from the police
service; P/INSP JOHN MAMAUAG and SPO2 Eugene Almario guilty of
Less Serious Neglect of Duty and orders that both of them be
suspended from the police service for Ninety (90) days with forfeiture
of pay; and SPO4 Erlinda Garcia and SPO1 Vivian Felipe exonerated of
the charge for insufficiency of evidence.[7]
Judge Angeles filed a Motion for Partial Reconsideration. [8] In a
Resolution[9] dated 3 July 1997, PNP Chief Sarmiento modified his
previous ruling and ordered the dismissal from the service of
Mamauag, Almario, Garcia and Felipe (Mamauag, et al.).

Mamauag, et al. forthwith filed a petition for certiorari and

mandamus against PNP Chief Sarmiento, PNP Inspector General
Jovencio Sales and Judge Angeles before the Regional Trial Court of
Quezon City, Branch 101. In an Order[10] dated 25 November 1997, the
Regional Trial Court dismissed the petition for failure of petitioners to
exhaust administrative remedies and for failure to show that
respondents abused their discretion.
Mamauag, et al. then appealed the PNP Chiefs Resolution before
the NAB.
The Ruling of the National Appellate Board
In a Decision,[11] dated 3 March 2000, the NAB dismissed the
appeal for late filing and lack of merit. The NAB declared:
Appellants Mamauag, Almario, Garcia and Felipe, in seeking immediate
judicial remedy by way of a Petition for Certiorari and Prohibition
against appellee and the PNP dismissal authority even if they have not
yet exhausted all administrative remedies available to them had in fact
defaulted in their right to exercise such later option by omission of
their own doing. The right to appeal is provided for by law and he who
seeks to exercise that right must abide with the rules provided
therefor.
The substantive rule regarding appeals from a decision of dismissal
from the police service imposed by the Chief, PNP is found in Section
45 of RA 6975, which provides in part, thus:
Section 45. Finality of Disciplinary Decision - Provided, further, that
the disciplinary action imposed by the Chief of the PNP involving
dismissal may be appealed to the National Appellate Board within
ten (10) days from receipt thereof.
It was on a day certain between July 3 1997 (the date of the Resolution
of dismissal) and July 18, 1997 (date of Petition for Certiorari and
Prohibition) that Mamauag, et al. must have received a copy of
aforesaid Resolution and from that same day, they had ten (10) days

81

within which to file their appeal before the NAB had they chosen to
exhaust administrative remedies. But they chose to avail of another
remedy thereby effectively foreclosing their right of appeal to NAB in
view of the lapse of the reglementary period for filing the same.

even exonerated Felipe and Garcia, the said decision is not even
subject to any appeal. The said decision clearly does not involve
any demotion nor dismissal which could properly be appealed
to the NAB.

WHEREFORE, premises considered, the appeal of P/Insp. John

Mamauag, SPO2 Eugene Almario, SPO4 Erlinda Garcia and SPO1 Vivian
Felipe is hereby DISMISSED for lack of merit.

Moreover, even under the assumption that a motion for

reconsideration is allowed, the one filed by Judge Angeles should not
have merited any consideration from the PNP Chief. Judge Angeles did
not have the personality to make such a motion. While Sec. 45 of
R.A. 6975 does not clearly provide who may appeal (or for that matter
make any motion for reconsideration) from the decision of the PNP
Chief, the last clause mentions either party may appeal with the
Secretary and by the doctrine of necessary implication this extends to
said decision of the PNP Chief.

SO ORDERED.[12]
Mamauag, et al. filed a motion for reconsideration of the Decision
but the NAB denied it in the NAB Resolution[13] of 30 June 2000. Thus,
Mamauag, et al. sought relief from the Court of Appeals.
The Ruling of the Court of Appeals
In its Decision of 6 September 2001, the Court of Appeals ruled:
WHEREFORE, in view of the foregoing, the Resolution of the PNP Chief
Recaredo Sarmiento II dated 3 July 1997, having been rendered in
excess of his jurisdiction is hereby SET ASIDE for being null and void.
Accordingly, the DECISION and RESOLUTION made by the National
Appellate Board dated 3 March 2000 and 30 June 2000, respectively,
are also SET ASIDE for being null and void.
SO ORDERED.[14]
In finding for Mamauag, et al., the Court of Appeals explained:
First of all, the said provision expressly states that the disciplinary
action imposed upon a member of the PNP shall be final and
executory. Nowhere does the said provision grant any party to move
for a reconsideration of any disciplinary action imposed as the remedy
provided thereunder is an appeal of either party of the decision to the
National Appellate Board, if such involves a demotion or
dismissal of a member of the PNP. In fact, since the original decision
only suspended petitioners Mamauag and Almario from service and

It is elementary that in an administrative case, the complainant is a

mere witness. No private interest is involved in an
administrative case as the offense committed is against the
government. As held by the Supreme Court in Paredes vs. Civil
Service Commission:
As correctly ruled by private respondent, petitioner Paredes the
complainant is not the party adversely affected by the decision so that
she has no legal personality to interpose an appeal to the Civil Service
Commission. In an administrative case, the complainant is a
mere witness (GONZALO VS. D. RODA, 64 SCRA 120). Even if she is
the Head of Administrative Services Department of the HSRC
as a complainant she is merely a witness for the government in
an administrative case. No private interest is involved in an
administrative case as the offense is committed against the
government. (Emphasis supplied)
Obviously, Judge Angeles has no interest which would be directly and
materially affected by the decision rendered by the PNP Chief. Not
being a proper party to the said case as she is only a mere witness
then her motion should not have served as a ground for the reevaluation of the administrative case against the petitioners which
resulted into a modification of the PNP Chiefs earlier decision.

82

On this score, We find the latest ruling of the Supreme Court on this
matter:
Subsequently, the Court of Appeals reversed the decision of the Civil
service Commission and held the respondent not guilty of nepotism.
Who may appeal the decision of the Court of Appeals to the
Supreme Court? Certainly not the responden[t] who was
declared not guilty of the charge. Nor the complainant George
P. Suan who was merely a witness for the government.
Consequently, the Civil Service Commission has become the
party adversely affected by such ruling, which seriously
prejudices the civil service system. Hence, as an aggrieved
party, it may appeal the decision of the Court of Appeals to the
Supreme Court. (Emphasis supplied)
Applying this to the present case by analogy, had the original
judgment been rendered in favor of the petitioners, it would be the
Philippine National Police which would be adversely affected and thus
would be the proper party to appeal such a judgment. Corollary to
this, where the original judgment is adverse to the petitioners, it is
they who could properly appeal the same. In either case, the
complainant Judge Angeles certainly has no legal personality to move
for a reconsideration of the original decision handed down by the PNP
Chief.
In view of the foregoing, this Court can only rule, as We do now, that
the appealed resolution (dated 3 July 1997) was made in excess of the
PNP Chiefs jurisdiction rendering it null and void. Hence, upon the
basic legal precept that a void decision or resolution can never attain
finality, NAB should have ruled accordingly on the matter. Finding that
it did not, the Courts remedial power must perforce be exercised to
rectify the matter before Us.[15]
Hence, the NABs recourse to this Court.
The Issues

The Office of the Solicitor General, representing the NAB, raises the
following issues:
1. Whether Section 45 of Republic Act No. 6975[16] (RA 6975)
allows the filing of a motion for reconsideration;
2. Whether the private complainant in an administrative case has
the legal personality to move for reconsideration, or appeal an
adverse decision of the disciplining authority.
The Ruling of This Court
The petition has no merit.
Mamauag and Almario argue that the disciplinary action of 90-day
suspension imposed on them in the 7 June 1996 Decision of PNP Chief
Sarmiento has become final and executory. Mamauag, et al. also argue
that private complainant Judge Angeles has no personality to move for
partial reconsideration of the 7 June 1996 Decision of PNP Chief
Sarmiento. Mamauag, et al. cite Sections 43(e) and 45 of RA 6975
which provide:
SEC. 43. Peoples Law Enforcement Board (PLEB). x x x
(e) Decisions. The decision of the PLEB shall become final and
executory: Provided, That a decision involving demotion or dismissal
from the service may be appealed by either party with the regional
appellate board within ten (10) days from receipt of the copy of the
decision.
xxx
SEC. 45. Finality of Disciplinary Action. - The disciplinary action
imposed upon a member of the PNP shall be final and
executory: Provided, That a disciplinary action imposed by the regional
director or by the PLEB involving demotion or dismissal from the
service may be appealed to the regional appellate board within ten
(10) days from receipt of the copy of the notice of decision: Provided,

83

further, That the disciplinary action imposed by the Chief of the PNP
involving demotion or dismissal may be appealed to the National
Appellate Board within ten (10) days from receipt thereof: Provided,
furthermore, The regional or National Appellate Board, as the case may
be, shall decide the appeal within sixty (60) days from receipt of the
notice of appeal: Provided, finally, That failure of the regional appellate
board to act on the appeal within said period shall render the decision
final and executory without prejudice, however, to the filing of an
appeal by either party with the Secretary.
The Court of Appeals sustained Mamauag, et al.
Decisions Appealable Under RA 6975
Section 45 of RA 6975 provides that a disciplinary action
imposed upon a member of the PNP shall be final and
executory. Under Section 45, a disciplinary action is appealable only
if it involves either a demotion or dismissal from the service. If the
disciplinary action is less than a demotion or dismissal from the
service, the disciplinary action shall be final and executory as Section
45 of RA 6975 expressly mandates. Thus, a decision imposing
suspension on a PNP member is not subject to appeal to a higher
authority.
Administrative disciplinary action connotes administrative penalty.
If the decision exonerates the respondents or otherwise dismisses
the charges against the respondents, there is no disciplinary action
since no penalty is imposed. The provision that a penalty less than
demotion or dismissal from service is final and executory does not
apply to dismissal of charges or exoneration because they are not
disciplinary actions. This gives rise to two crucial questions.
[17]

First, can a party appeal from a decision of the disciplining

authority dismissing the charges against a PNP member? Second, if a
decision dismissing the charges against a PNP member is appealable,
who can appeal the PNP or the private complainant, or both?

Before the case of CSC v. Dacoycoy,[18] case law held that

dismissal of the charges or exoneration of the respondents in
administrative disciplinary proceedings is final and not subject to
appeal even by the government. Thus, in Del Castillo v. Civil
Service Commission,[19] et al., the Court held:
Section 37, paragraph (a), of PD 807, the Philippine Civil Service Law,
provides:
(a)
The Commission shall decide upon appeal all administrative
disciplinary cases involving the imposition of a penalty of suspension
for more than thirty days, or fine in an amount exceeding thirty days
salary, demotion in rank or salary or transfer, removal or dismissal
from office xxx (Italics supplied).
Interpreting the above provision, we held in Mendez v. CSC that:
xxx

xxx

xxx

It is axiomatic that the right to appeal is merely a statutory privilege

and may be exercised only in the manner and in accordance with the
provision of law. (Victorias Milling Co., Inc. vs. Office of the Presidential
Assistant for Legal Affairs, 153 SCRA 318).
A cursory reading of P.D. 807, otherwise known as The
Philippine Civil Service Law shows that said law does not
contemplate a review of decisions exonerating officers or
employees from administrative charges.
Section 37 paragraph (a) thereof, provides:
xxx

xxx

xxx

Said provision must be read together with Section 39 paragraph (a) of

P.D. 805 which contemplates:
Appeals, where allowable, shall be made by the party adversely
affected by the decision xxx (italics supplied) (p. 104, Rollo)

84

The phrase party adversely affected by the decision refers to the

government employee against whom the administrative case is filed
for the purpose of disciplinary action which may take the form of
suspension, demotion in rank or salary, transfer, removal or dismissal
from office. In the instant case, Coloyan who filed the appeal cannot be
considered an aggrieved party because he is not the respondent in the
administrative case below.
Finally, pursuant to Section 37 paragraph (b) of P.D. 807, the city
major, as head of the city government, is empowered to enforce
judgment with finality on lesser penalties like suspension from work for
one month and forfeiture of salary equivalent to one month against
erring employees.
By inference or implication, the remedy of appeal may be
availed of only in a case where the respondent is found guilty
of the charges files against him. But when the respondent is
exonerated of said charges, as in this case, there is no
occasion for appeal. (Emphasis supplied)
However, in Dacoycoy, the Court modified the rule in Del
Castillo and earlier cases by allowing the Civil Service Commission to
appeal dismissals of charges or exoneration of respondents in
administrative disciplinary proceedings. In Dacoycoy, the Court ruled:
At this point, we have necessarily to resolve the question of the party
adversely affected who may take an appeal from an adverse decision
of the appellate court in an administrative civil service disciplinary
case. There is no question that respondent Dacoycoy may appeal to
the Court of Appeals from the decision of the Civil Service Commission
adverse to him. He was the respondent official meted out the penalty
of dismissal from the service. On appeal to the Court of Appeals, the
court required the petitioner therein, here respondent Dacoycoy, to
implead the Civil Service Commission as public respondent as the
government agency tasked with the duty to enforce the constitutional
and statutory provisions on the civil service.

Subsequently, the Court of Appeals reversed the decision of the Civil

Service Commission and held respondent not guilty of nepotism. Who
now may appeal the decision of the Court of Appeals to the
Supreme Court? Certainly not the respondent, who was
declared not guilty of the charge. Nor the complainant George
P. Suan, who was merely a witness for the government.
Consequently, the Civil Service Commission has become the
party adversely affected by such ruling, which seriously
prejudices the civil service system. Hence, as an aggrieved
party, it may appeal the decision of the Court of Appeals to the
Supreme Court. By this ruling, we now expressly abandon and
overrule extant jurisprudence that the phrase party adversely
affected by the decision refers to the government employee against
whom the administrative case is filed for the purpose of disciplinary
action which may take the form of suspension, demotion in rank or
salary, transfer, removal or dismissal from office and not included are
cases where the penalty imposed is suspension for not more than
thirty (30) days or fine in an amount not exceeding thirty days salary
or when the respondent is exonerated of the charges, there is no
occasion for appeal. In other words, we overrule prior decisions
holding that the Civil Service Law does not contemplate a
review of decisions exonerating officers or employees from
administrative charges enunciated in Paredes v. Civil Service
Commission; Mendez v. Civil Service Commission; Magpale v.
Civil Service Commission; Navarro v. Civil Service Commission
and Export Processing Zone Authority and more recently Del
Castillo v. Civil Service Commission. (Emphasis supplied)
Subsequent decisions[20] of the Court affirmed Dacoycoy.
Dacoycoy allowed the Civil Service Commission to appeal
dismissals of charges or exoneration of respondents in administrative
disciplinary proceedings. However, Dacoycoy maintained the rule
that the private complainant is a mere government witness without a
right to appeal.[21] Thus, case law holding that the private complainant
has no right to appeal the decision of the disciplining authority remains
good law. As explained by Justice Jose Melo in his concurring opinion
in Floralde v. Court of Appeals:[22]

85

However, in Civil Service Commission v. Dacoycoy (306 SCRA 425

[1999]), which incidentally is another ponencia of Mr. Justice Pardo, the
majority, with undersignedponente dissenting, modified the above
doctrine by allowing the CSC to appeal in cases where the respondent
is exonerated of the charges. Nevertheless, in both cases, the
Court did not deviate from the doctrine that the complainant,
being a mere witness for the government, cannot appeal the
decision rendered in the administrative case. In Paredes, we
declared that the complainant is not the party adversely affected by
the decision so that she has no legal personality to interpose an appeal
to the CSC. In an administrative case, the complainant is a mere
witness. No private interest is involved in an administrative case as the
offense is committed against the government. (Emphasis supplied)
Section 91 of RA 6975 provides that the Civil Service Law and its
rules and regulations shall apply to all personnel of the Department.
Consequently, case law on administrative disciplinary proceedings
under the Civil Service Law also applies to administrative disciplinary
proceedings against PNP members. Even without Section 91, case law
on the civil service necessarily applies to PNP members who are
embraced in the phrase civil service [23] under Section 2(1), Article IXB of the 1987 Constitution.
RA 6975 itself does not authorize a private complainant to appeal a
decision of the disciplining authority. Sections 43 and 45 of RA 6975
authorize either party to appeal in the instances that the law allows
appeal. One party is the PNP member-respondent when the
disciplining authority imposes the penalty of demotion or dismissal
from the service. The other party is the government when the
disciplining authority imposes the penalty of demotion but the
government believes that dismissal from the service is the proper
penalty.
However, the government party that can appeal is not the
disciplining authority or tribunal which previously heard the case and
imposed the penalty of demotion or dismissal from the service. The
government party appealing must be one that is prosecuting the
administrative case against the respondent. Otherwise, an anomalous
situation will result where the disciplining authority or tribunal hearing

the case, instead of being impartial and detached, becomes an active

participant in prosecuting the respondent. Thus, in Mathay, Jr. v.
Court of Appeals,[24] decided after Dacoycoy, the Court declared:
To be sure, when the resolutions of the Civil Service Commission were
brought before the Court of Appeals, the Civil Service Commission was
included only as a nominal party. As a quasi-judicial body, the Civil
Service Commission can be likened to a judge who should detach
himself from cases where his decision is appealed to a higher court for
review.
In instituting G.R. No. 126354, the Civil Service Commission
dangerously departed from its role as adjudicator and became an
advocate. Its mandated function is to hear and decide administrative
cases instituted by or brought before it directly or on appeal, including
contested appointments and to review decisions and actions of its
offices and agencies, not to litigate.
In any event, a private complainant like Judge Angeles is not one of
either party who can appeal under Sections 43 and 45 of RA 6975.
The private complainant is a mere witness of the government which is
the real party in interest.[25] In short, private complainant Judge Angeles
is not a party under Sections 43 and 45 who can appeal the decision of
the disciplining authority.
Thus, Judge Angeles has no legal personality to appeal the
dismissal of the charges against Mamauag, et al. by the CPDC District
Director in the Resolution of 10 April 1995. The motion for reinvestigation filed by Judge Angeles with the PNP Chief is in substance
an appeal from the decision of the CPDC District Director. The PNP
Chief had no jurisdiction to entertain Judge Angeles appeal in the
guise of a motion for re-investigation. Since the PNP Chief had no
jurisdiction, all actions taken by the PNP Chief pursuant to the appeal is
void. Thus, the Decision of the CPDC District Director dismissing the
charges against Mamauag, et al. stands and is now final and executory.
We note that, as found by PNP Chief Sarmiento in his earlier
Decision of 7 June 1996, there is no evidence on record to hold Garcia

86

and Felipe liable for any misconduct. The 3 July 1997 Resolution of PNP
Chief Sarmiento stated that Garcia and Felipe were eye-witnesses to
the criminal act of the theft of Judge Angeles jewelry. The same
Resolution also held that Garcia and Felipe were active participants in
the cover-up (of the theft) contrary to the assertion that they merely
brought minors Pacay and Gaspar to the DSWD upon instructions of
their superior.

purse/wallet of Nancy Gaspar placed inside the paper bag of Proclyn

Pacay and which yielded fancy jewelry items, a P20-peso bill and a
wristwatch that according to Gaspar was given her by the private
complainant. It was Oliva Angeles and Dra. Sagrada who took with
them the coin purse of Pacay. How the private complainant produced
the alleged stolen jewelry worth P26,820.25 is a matter which only
they can explain.[26]

The theft, however, happened at the house of Judge Angeles.

Garcia and Felipe were indisputably not eyewitnesses to the crime of
theft, contrary to the finding of the PNP Chief. There is also no
evidence on record of any act showing that Garcia and Felipe
participated in any cover-up of the theft. We quote the NAB Decision of
29 July 1997 explaining why there was no cover-up of the alleged theft:

PNP Chief Sarmientos Decision of 7 June 1996 dismissed from the

service Ganias, Billedo, and Cario, suspended for 90 days Mamauag
and Almario, and exonerated Garcia and Felipe. All the respondents
initially appealed the Decision to the NAB. The NAB exonerated
Ganias, Billedo and Cario and advised the PNP Chief to take note of
our findings in the instant case and to act thereon accordingly with
respect to Judge Angeles pending motion for partial reconsideration
involving Mamauag, et al. The PNP Chief, however, issued his
Resolution on 3 July 1997 dismissing from the service Mamauag, et al.,
twenty-six days before the NAB Decision of 29 July 1997.

Appellants argue that after minors Pacay and Gaspar narrated and
showed signs of their harrowing life under Judge Angeles, and pursuant
to standard police practice and the policy of the state to protect
children against abuse, exploitation and discrimination committed by
persons having care and custody of them, appellant Cario decided
with the approval of Chief Insp. Ganias to bring said minors to the
hospital for medico-legal examination. Thereafter, the minors were
placed under the protective custody of the DSWD in accordance with
Executive Order No. 50, Series of 1986. For performing their duties
pursuant to law and after tending to the needs of said minors as
mandated under Sec. 2 of RA 7610, and for refusing to enter in the
police blotter a fictitious crime of Qualified Theft and to turn over said
minors to the custody of the complainant, appellants were
unceremoniously suspended and subjected to summary dismissal
proceedings.
It would defy both logic and human nature that a mere SPO1 such as
appellant Cario would refuse the rightful demands of respectable
emissaries of a well-known and feared RTC Judge whose reputation
precedes her. There is no plausible reason, therefore, for appellant to
refuse entry of the alleged stolen jewelry in the blotter. They are more
than aware that they are facing a lawyer and judge who can make life
miserable for them if they refuse to perform their duties enjoined by
law. The truth of the matter is that what was discovered was a coin

The NAB, which is a higher disciplining authority than the PNP

Chief, found that the same grave misconduct charged against all the
respondents never happened. Thus, the NAB exonerated and
reinstated Ganias, Billedo and Cario, whom the PNP Chief dismissed
from the service in his original Decision of 7 June 1996. The NAB
decision became final and executory on 28 February 1998. Ironically,
Mamauag and Almario, whom the PNP Chief originally meted out a
lesser penalty of 90-day suspension but subsequently dismissed on
motion for partial reconsideration, have not been reinstated to their
positions up to now. Garcia and Felipe, whom the PNP Chief originally
exonerated but subsequently dismissed on motion for partial
reconsideration, have also not been reinstated to their positions. And
yet, as found by the NAB, the appellate disciplining authority superior
to the PNP Chief, the same offense of grave misconduct charged
against all respondents, including Mamauag, et al., never happened.
WHEREFORE, we DENY the instant petition. We AFFIRM the
Decision of the Court of Appeals promulgated on 06 September 2001 in
CA-G.R. SP No. 61711 with MODIFICATION. We REVERSE the 3 July
1997 Resolution of PNP Chief Recaredo Sarmiento II and REINSTATE the
87

Resolution of 10 April 1995 of the CPDC District Director dismissing the

charges against P/Insp. John A. Mamauag, SPO2 Eugene Almario, SPO4
Erlinda Garcia, and SPO1 Vivian Felipe, who are all entitled to back
salaries and other benefits as provided under Section 48[27] of Republic
Act No. 6975.
SO ORDERED.

x-----------------------------------------------------x

CASE NO. 14

IN RE JUDGE ANTONIO ALANO

Can the length of service of Judge Antonio S. Alano as a former

Sangguniang Bayan member be credited in his favor in order to
complete the 20 years of government service requirement for the
purpose of availing the monthly lifetime pension under Republic Act
(R.A.) No. 910[1]?
This administrative matter involves the entitlement of Judge
Antonio
S.
Alano,
former
presiding
judge
of
the Regional Trial Court ofGeneral Santos City, Branch 35, to a lifetime
pension under Sec. 1 of R.A. No. 910, as amended.
The facts are as follows:
On November 27, 2001, the Court En Banc approved petitioners
application for disability retirement under R.A. No. 910, to wit:

Acting on the Application for Disability Retirement

filed by Judge Antonio S. Alano, RTC, Branch 35, General
Santos City, under R.A. 910, as amended by R.A. 5095
and P.D. 1438, and it appearing that applicant is: (1) over
69 years old with more than 17 years of government
service and (2) suffering from Cerebrovascular Accident,
[recurrent infarct], left Middle Cerebral Artery in
distribution; with Right-Sided Hemiparesis; Hypertensive
Cardiovascular Disease; Diabetes Mellitus, Type II, which
condition falls within the classification of a total
permanent disability per Memorandum dated 24
September 2001 of the Medical Services of this Court, the
Court Resolved to APPROVE the application effective 4
April 2001 x x x.
A copy of the Resolution was received by petitioner
on December 21, 2001.[2] Claiming that the Court erroneously credited
him with only 17 years of government service, which consists 11 years
as a judge and six years as Provincial Board Member of Basilan,
petitioner filed a Motion for Partial Reconsideration contending that if
his four years of service as a Sangguniang Bayan member is added to
his 17 years of government service, then he would have rendered more
than 21 years of government service which would qualify him to avail
the monthly lifetime pension under R.A. No. 910. Attached to
the Motion for Partial Reconsideration is petitioners Service Record
duly signed by Nonito T. Ramirez, Secretary to the Sanggunian.
In a minute resolution dated April 10, 2002, the Court denied
the motion, stating thus:
The Court resolved, upon recommendation of
Deputy Court Administrator Christopher O. Lock in his
Memorandum dated 1 March 2002, to DENY the Motion
for Partial Reconsideration of the resolution of 27
November 2001, dated 1 January 2001 of former Judge
Antonio S. Alano, RTC, Branch 35, General Santos
City. Services rendered for the period 10 January
1976 to 31 January 1980 as Sangguniang Bayan Member
cannot be accredited as government service for purposes
of retirement.

88

On December 12, 2006, petitioner filed the instant petition

reiterating his plea that his more than four years of government
service as a Sangguniang Bayan member of the Municipality of Isabela,
Basilan for the period January 10, 1976 to January 31, 1980 be credited
in his favor and that based on the applicable last salary and other
benefits he was receiving prior to his retirement, he be granted a
monthly pension for the rest of his natural life to answer for his
rehabilitation, medicines, doctors bills, and expenses for his support.
Petitioner alleged that he has reached the age of 75 last June
13, 2006; that since the approval of his retirement on April 4, 2001, a
substantial portion, if not all, of his retirement benefits have been
spent for his rehabilitation, medicines, medical care and maintenance;
that if his request be granted, the proceeds of his monthly pension will
be spent in meeting his rehabilitation, medicines, doctors bills and
expenses for his support. He thus prayed for the Court to give due
course to his petition and thereafter render a more humane and
equitable judgment. Petitioner attached to his petition his Service
Record duly signed by Otilla W. Ricablanca, Chief, Human Resource
Management Office, Isabela, Basilan.
In a Resolution dated March 6, 2007, we required Judge Alano to
submit additional proof that he served in the Sangguniang Bayan of
Isabela. In compliance, Judge Alano submitted a) a certified true copy
of a certification issued by Francisco R. Pia, former Vice-Mayor of
Isabela, certifying that he and Judge Alano served together as
members of the Sangguniang Bayan of Isabela in 1976-1980; and b)
certified true copies of excerpts from minutes of the Sessions of the
Sangguniang Bayan of Isabela from 1976 to 1979, which were
attended and participated in by Judge Alano.
In a Memorandum dated March 19, 2007, the Office of the Court
Administrator recommended that the request of Judge Alano for
accreditation of his services rendered as Sangguniang Bayan Member
of Isabela, Basilan for four years and 21 days be granted; and that he
be entitled to receive an additional 5-year lump sum gratuity having
met the 20 years government service required to qualify and be
entitled to the 10-year lump sum gratuity provided for Disability
Retirement under R.A. No. 910, as amended.

However, the Court deferred action on the matter pending

submission of additional proof that Judge Alano served in the
Sangguniang Bayan of Isabela. Thus, on June 19, 2007, the Court
resolved to require the Office of the Court Administrator to secure proof
from the Department of Interior and Local Government (DILG) of Judge
Alanos appointment as Member of the Sangguniang Bayan of Isabela,
Basilan.
In a Certification dated July 24, 2007, the DILG stated that it has
no available copies of documents[3] to prove that former Judge Alano
has been a Member of the Sangguniang Bayan of Isabela,
Basilan. However, it also stated that DILG only requires submission of
said documents when the need arises and that the local government
unit concerned could have kept on file said documents.
Consequently, we required the local government of Isabela,
Basilan to issue a certification. In a Certification dated January 10,
2007,[4]Otilla W. Ricablanca, Human Resource Management Officer of
Isabela, Basilan stated, thus:
CERTIFICATION
TO WHOM IT MAY CONCERN:
This is to certify that insofar as the records of the
appointment of Atty. (now Judge) Antonio S. Alano, as a
member of the Sangguniang Bayan, of the Municipality
(now City) of Isabela, Basilan Province, for his term of
office from January 10, 1976 to January 31, 1980, are no
longer available, as the same were destroyed, when the
water tank above the Archives room where the said
records are located leaked, and water therefrom seeped
through the ceiling into the public documents, papers
and records located and stored inside the said room
below, and destroyed the same, sometime in the early
1980s.
It is further certified that his Service Record as a
member of the Sangguniang Bayan of the Municipality
(now City) of Isabela, Basilan Province, and the various
Excerpts of from the Minutes of the Regular and
Special
Sessions
of
the
Sangguniang

89

Bayan showing that he attended the said sessions and

voted in the approval of the various Ordinances of the
said legislative body during his term of office, are the
only available records as of the present, the copies
of which have already been furnished to Judge
Antonio S. Alano.
xxxx
Records show that Judge Alano served as Sangguniang Bayan
member of Isabela, Basilan from January 10, 1976 up to January 31,
1980, or for a period of 4 years and 21 days. He was also elected as
Provincial Board member of the same province from February 1,
1980 up to April 20, 1986, or for a period of 6 years, 2 months, and
19 days. On January 1, 1990, he was appointed as presiding judge
and he served as such up toApril 4, 2001, or for a period of 11 years,
3 months, and 3 days. Thus, he has rendered a total of 21 years, 6
months, and 13 days of government service.
Section 1 of R.A. No. 910, as amended, provides:
Section 1. When a justice of the Supreme Court or
of the Court of Appeals, a judge of the Court of First
Instance, Industrial Relations, Agrarian Relations, Tax
Appeals, Juvenile and Domestic Relations, or a city or
municipal judge who has rendered at least twenty years
service in the judiciary or in any other branch of the
Government, or in both, (a) retires for having attained
the age of seventy years, or (b) resigns by reason of his
incapacity to discharge the duties of his office, he shall
receive during the residue of his natural life, in the
manner hereinafter provided, the salary which he was
receiving at the time of his retirement or resignation. And
when a justice of the Supreme Court or of the Court of
Appeals, a judge of Court of First Instance, Industrial
Relations, Agrarian Relations, Tax Appeals, Juvenile and
Domestic Relations, or a city or municipal judge has
attained the age of sixty years and has rendered at least
twenty years service in the Government, the last five of
which shall have been continuously rendered in the
judiciary, he shall likewise be entitled to retire and

receive during the residue of his natural life, also in the

manner hereinafter provided, the salary which he was
then receiving. x x x. (Emphasis supplied)
It is clear from the foregoing that the 20 years service
requirement for a retiree who has reached the age of 70 must be
rendered in the judiciary or in any branch of the government. There
is no distinction whether it was rendered in the executive, legislative,
or judicial branch. On the other hand, for a retiree who has reached
the age of 60, it is required that the last 5 years of his 20 years of
government service be continuously rendered in the judiciary.
In Re: Application for Retirement Under R.A. No. 910 of
Associate Justice Ramon B. Britanico of the Intermediate Appellate
Court,[5]the Court enunciated in this wise:
As provided in Section 1, the justices or judges
who may enjoy retirement benefits with lifetime annuity,
should, as a condition sine qua non, have rendered at
least 20 years service in the judiciary or in any other
branch of the Government, or both. They fall into three
(3) categories:
1.

Those who mandatorily retire at age

70 and had rendered at least 20
years service in the judiciary or any
other branch of the Government or
both;

2.

Those who resign by reason of

incapacity to discharge the duties of
their office and had rendered at least
20 years service in the judiciary or in
any other branch of the Government
or both;

3.

Those who voluntarily retire at age

60 after having rendered at least 20
years service in the Government, the
last 5 years of which were

90

continuously
judiciary.

rendered

in

the

It appears that Judge Alano was qualified to retire under the

second category because he retired before reaching the age of 70 and
after rendering more than 20 years of government service, the last five
years of which was served in the judiciary. However, he opted to retire
under Sec. 3 of R.A. No. 910 by reason of a permanent disability which
should have entitled him to receive a gratuity equivalent to 10 years
salary, but with no further annuity payable during the rest of his
natural life. We note, however, that upon his retirement on April 4,
2001, Judge Alano only received a lump sum payment equivalent to
five years salary. Thus, pursuant to Sec. 3 of R.A. No. 910, Judge Alano
should be granted an additional gratuity equivalent to 5 years salary.
Ordinarily, since Judge Alano retired under Sec. 3 of R.A. No.
910, he will no longer be entitled to a monthly pension during the rest
of his natural life. However, at the time Judge Alano retired on April 4,
2001, he was already qualified to retire under Sec. 1. Thus, pursuant
to our ruling in Re: Ruperto G. Martin,[6] his having applied for disability
retirement would not serve to deprive him of his monthly pension,
assuming he is still alive beyond the period of 10 years after his
retirement on April 4, 2001.
In the case of Re: Ruperto G. Martin, this Court granted Justice
Martins application for lifetime pension which was filed 11 years after
his retirement. Justice Martin, like Judge Alano, retired by reason of
permanent disability before reaching the age of 70 and after rendering
over 20 years of service in the government, the last five of which had
been continuously rendered in the judiciary. Although Justice Martin
already received the ten-year lump sum retirement gratuity under the
second paragraph of Section 3, R.A. No. 910, as amended, the Court
nevertheless granted his application for a monthly pension. The Court
ratiocinated in this wise:
It is indeed true that the purpose of the ten-year
lump sum under Sec. 3 is to enable the retiree to meet
the medical and hospital expenses for the treatment of
his illness. If at the time of retirement he was already
entitled to retire under Section 1 of RA 910 and to receive
his 5-year lump sum plus a lifetime pension after five

years, his having applied for disability retirement under

Section 3 of the law in order that he may receive the 10year lump sum gratuity, should not result in the forfeiture
of his right to a lifetime pension if he should still be alive
after ten (10) years from his retirement. x x x
xxxx
Where a retiree by reason of permanent disability
is entitled to and chooses retirement under Section 3 of
RA 910 (ten-year lump sum without the lifetime annuity)
although he would also have been entitled to retire under
Section 1 (5-year lump sum with lifetime annuity) for
having met the age and service requirements of the law,
he is not deemed to have waived the lifetime annuity. In
the event that he survives beyond the period of ten years
after his retirement, his application for disability
retirement under Section 3 may be converted into an
application for voluntary retirement under Section 1 x x
x.[7] (Emphasis supplied)
Finally, we note that the instant petition was filed four years,
eight months and 24 days after the Court denied petitioners Motion
for Partial Reconsideration on April 10, 2002. Notwithstanding the
lapse of time, this Court has the obligation under R.A. No. 910 to grant
petitioner his vested right to his retirement benefits. Under Article
1144 of the Civil Code, petitioner has 10 years reckoned from the time
the right of action accrues, to bring an action upon an obligation
created by law. Besides, the instant petition is not adversarial in
nature; it is an administrative matter regarding a retirees application
for monthly pension. Notably, in Re: Ruperto G. Martin, this Court
granted Justice Martins application for lifetime pension although it was
filed 11 years after the approval of his application for disability
retirement. Petitioner deserves no less.
It is axiomatic that retirement laws should be liberally construed
and applied in favor of the persons intended to be benefited by them,
and all doubts as to the intent of the law should be resolved in favor of
the retiree to achieve its humanitarian purposes. [8] This Court is not
insensitive to the plight of retired judges who, because of deteriorating

91

health brought about by old age, need financial assistance and support
in the twilight years of their life when they can no longer work with
much vigor to earn a living. They deserve the full measure of the
nations gratitude for giving the best years of their life in the service of
the government and the people.

SO ORDERED.

WHEREFORE, Judge Antonio S. Alanos length of service as

Sangguniang Bayan member is ordered CREDITED in his favor,
thereby making his total length of government service equivalent to 21
years, 6 months and 13 days. Considering that he received only a five
years salary lump sum payment when he retired on April 4, 2001, he
is therefore GRANTED an additional five years salary lump sum
payment pursuant to Sec. 3 of R.A. No. 910. In case Judge Alano
survives beyond the period of 10 years after his retirement on April 4,
2001, he is likewise ENTITLED to receive a monthly pension for the
rest of his natural life.

92