1

G.R. Nos. 171947-48

February 15, 2011

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF EDUCATION, CULTURE AND SPORTS,1 DEPARTMENT OF HEALTH, DEPARTMENT OF AGRICULTURE, DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, DEPARTMENT OF BUDGET AND MANAGEMENT, PHILIPPINE COAST GUARD, PHILIPPINE NATIONAL POLICE MARITIME GROUP, and DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, Petitioners, vs. CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS, SABINIANO ALBARRACIN, MANUEL SANTOS, JR., DINAH DELA PEA, PAUL DENNIS QUINTERO, MA. VICTORIA LLENOS, DONNA CALOZA, FATIMA QUITAIN, VENICE SEGARRA, FRITZIE TANGKIA, SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS BOBIS, FELIMON SANTIAGUEL, and JAIME AGUSTIN R. OPOSA,Respondents. RESOLUTION VELASCO, JR., J.: On December 18, 2008, this Court rendered a Decision in G.R. Nos. 171947-48 ordering petitioners to clean up, rehabilitate and preserve Manila Bay in their different capacities. The fallo reads: 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 Manila Bay, 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, the DILG, in exercising the Presidents power of general supervision and its duty to promulgate guidelines in establishing waste management programs under Sec. 43 of the Philippine Environment Code (PD 1152), shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite,
1

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 Navotas-Malabon-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, 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, 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, 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 the Manila Bay. (7) Pursuant to Secs. 2 and 6-c of EO 513 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 ship-generated 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 Pasig-Marikina-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
2

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, Sec. 27 of RA 9275 (the Clean Water Act), and other existing laws on pollution. (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 non-complying, 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, Sec. 118 of RA 8550, and Sec. 56 of RA 9003, 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. SO ORDERED. The government agencies did not file any motion for reconsideration and the Decision became final in January 2009. The case is now in the execution phase of the final and executory December 18, 2008 Decision. The Manila Bay Advisory Committee was created to receive and evaluate the quarterly progressive reports on the activities undertaken by the agencies in accordance with said decision and to monitor the execution phase.
3

In the absence of specific completion periods, the Committee recommended that time frames be set for the agencies to perform their assigned tasks. This may be viewed as an encroachment over the powers and functions of the Executive Branch headed by the President of the Philippines. This view is misplaced. The issuance of subsequent resolutions by the Court is simply an exercise of judicial power under Art. VIII of the Constitution, because the execution of the Decision is but an integral part of the adjudicative function of the Court. None of the agencies ever questioned the power of the Court to implement the December 18, 2008 Decision nor has any of them raised the alleged encroachment by the Court over executive functions. While additional activities are required of the agencies like submission of plans of action, data or status reports, these directives are but part and parcel of the execution stage of a final decision under Rule 39 of the Rules of Court. Section 47 of Rule 39 reads: Section 47. Effect of judgments or final orders.The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: x xxx (c) In any other litigation between the same parties of their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. (Emphasis supplied.) It is clear that the final judgment includes not only what appears upon its face to have been so adjudged but also those matters "actually and necessarily included therein or necessary thereto." Certainly, any activity that is needed to fully implement a final judgment is necessarily encompassed by said judgment. Moreover, the submission of periodic reports is sanctioned by Secs. 7 and 8, Rule 8 of the Rules of Procedure for Environmental cases: Sec. 7. Judgment.If warranted, the court shall grant the privilege of the writ of continuing mandamus requiring respondent to perform an act or series of acts until the judgment is fully satisfied and to grant such other reliefs as may be warranted resulting from the wrongful or illegal acts of the respondent. The court shall require the respondent to submit periodic reports detailing the progress and execution of the judgment, and the court may, by itself or through a commissioner or the appropriate government agency, evaluate and monitor compliance. The petitioner may submit its comments or observations on the execution of the judgment. Sec. 8. Return of the writ.The periodic reports submitted by the respondent detailing compliance with the judgment shall be contained in partial returns of the writ. Upon full satisfaction of the judgment, a final return of the writ shall be made to the court by the respondent. If the court finds that the judgment has been fully implemented, the satisfaction of judgment shall be entered in the court docket. (Emphasis supplied.)

With the final and executory judgment in MMDA, the writ of continuing mandamus issued in MMDA means that until petitioner-agencies have shown full compliance with the Courts orders, the Court exercises continuing jurisdiction over them until full execution of the judgment. There being no encroachment over executive functions to speak of, We shall now proceed to the recommendation of the Manila Bay Advisory Committee. Several problems were encountered by the Manila Bay Advisory Committee.2 An evaluation of the quarterly progressive reports has shown that (1) there are voluminous quarterly progressive reports that are being submitted; (2) petitioner-agencies do not have a uniform manner of reporting their cleanup, rehabilitation and preservation activities; (3) as yet no definite deadlines have been set by petitioner DENR as to petitioneragencies timeframe for their respective duties; (4) as of June 2010 there has been a change in leadership in both the national and local levels; and (5) some agencies have encountered difficulties in complying with the Courts directives. In order to implement the afore-quoted Decision, certain directives have to be issued by the Court to address the said concerns. Acting on the recommendation of the Manila Bay Advisory Committee, the Court hereby resolves to ORDER the following: (1) The Department of Environment and Natural Resources (DENR), as lead agency in the Philippine Clean Water Act of 2004, shall submit to the Court on or before June 30, 2011 the updated Operational Plan for the Manila Bay Coastal Strategy. The DENR is ordered to submit summarized data on the overall quality of Manila Bay waters for all four quarters of 2010 on or before June 30, 2011. The DENR is further ordered to submit the names and addresses of persons and companies in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan that generate toxic and hazardous waste on or before September 30, 2011. (2) On or before June 30, 2011, the Department of the Interior and Local Government (DILG) shall order the Mayors of all cities in Metro Manila; the Governors of Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan; and the Mayors of all the cities and towns in said provinces to inspect all factories, commercial establishments and private homes along the banks of the major river systemssuch as but not limited to the Pasig-MarikinaSan Juan Rivers, the National Capital Region (Paranaque-Zapote, Las Pinas) Rivers, the Navotas-MalabonTullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, and the Laguna De Bayand other minor rivers and waterways within their jurisdiction that eventually discharge water into the Manila Bay and the lands abutting it, to determine if they have wastewater treatment facilities and/or hygienic septic tanks, as prescribed by existing laws, ordinances, rules and regulations. Said local government unit (LGU) officials are given up to September 30, 2011 to finish the inspection of said establishments and houses.

In case of non-compliance, the LGU officials shall take appropriate action to ensure compliance by noncomplying factories, commercial establishments and private homes with said law, rules and regulations requiring the construction or installment of wastewater treatment facilities or hygienic septic tanks. The aforementioned governors and mayors shall submit to the DILG on or before December 31, 2011 their respective compliance reports which will contain the names and addresses or offices of the owners of all the non-complying factories, commercial establishments and private homes, copy furnished the concerned environmental agency, be it the local DENR office or the Laguna Lake Development Authority. The DILG is required to submit a five-year plan of action that will contain measures intended to ensure compliance of all non-complying factories, commercial establishments, and private homes. On or before June 30, 2011, the DILG and the mayors of all cities in Metro Manila shall consider providing land for the wastewater facilities of the Metropolitan Waterworks and Sewerage System (MWSS) or its concessionaires (Maynilad and Manila Water, Inc.) within their respective jurisdictions. (3) The MWSS shall submit to the Court on or before June 30, 2011 the list of areas in Metro Manila, Rizal and Cavite that do not have the necessary wastewater treatment facilities. Within the same period, the concessionaires of the MWSS shall submit their plans and projects for the construction of wastewater treatment facilities in all the aforesaid areas and the completion period for said facilities, which shall not go beyond 2037. On or before June 30, 2011, the MWSS is further required to have its two concessionaires submit a report on the amount collected as sewerage fees in their respective areas of operation as of December 31, 2010. (4) The Local Water Utilities Administration is ordered to submit on or before September 30, 2011 its plan to provide, install, operate and maintain sewerage and sanitation facilities in said cities and towns and the completion period for said works, which shall be fully implemented by December 31, 2020. (5) The Department of Agriculture (DA), through the Bureau of Fisheries and Aquatic Resources, shall submit to the Court on or before June 30, 2011 a report on areas in Manila Bay where marine life has to be restored or improved and the assistance it has extended to the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga and Bataan in developing the fisheries and aquatic resources in Manila Bay. The report shall contain monitoring data on the marine life in said areas. Within the same period, it shall submit its five-year plan to restore and improve the marine life in Manila Bay, its future activities to assist the aforementioned LGUs for that purpose, and the completion period for said undertakings. The DA shall submit to the Court on or before September 30, 2011 the baseline data as of September 30, 2010 on the pollution loading into the Manila Bay system from agricultural and livestock sources. (6) The Philippine Ports Authority (PPA) shall incorporate in its quarterly reports the list of violators it has apprehended and the status of their cases. The PPA is further ordered to include in its report the names, make and capacity of the ships that dock in PPA ports. The PPA shall submit to the Court on or before June 30, 2011 the measures it intends to undertake to implement its compliance with paragraph 7 of the dispositive portion of the MMDA Decision and the completion dates of such measures.
6

The PPA should include in its report the activities of its concessionaire that collects and disposes of the solid and liquid wastes and other ship-generated wastes, which shall state the names, make and capacity of the ships serviced by it since August 2003 up to the present date, the dates the ships docked at PPA ports, the number of days the ship was at sea with the corresponding number of passengers and crew per trip, the volume of solid, liquid and other wastes collected from said ships, the treatment undertaken and the disposal site for said wastes. (7) The Philippine National Police (PNP) Maritime Group shall submit on or before June 30, 2011 its five-year plan of action on the measures and activities it intends to undertake to apprehend the violators of Republic Act No. (RA) 8550 or the Philippine Fisheries Code of 1998 and other pertinent laws, ordinances and regulations to prevent marine pollution in Manila Bay and to ensure the successful prosecution of violators. The Philippine Coast Guard shall likewise submit on or before June 30, 2011 its five-year plan of action on the measures and activities they intend to undertake to apprehend the violators of Presidential Decree No. 979 or the Marine Pollution Decree of 1976 and RA 9993 or the Philippine Coast Guard Law of 2009 and other pertinent laws and regulations to prevent marine pollution in Manila Bay and to ensure the successful prosecution of violators. (8) The Metropolitan Manila Development Authority (MMDA) shall submit to the Court on or before June 30, 2011 the names and addresses of the informal settlers in Metro Manila who, as of December 31, 2010, own and occupy houses, structures, constructions and other encroachments established or built along the PasigMarikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-TullahanTenejeros Rivers, and connecting waterways and esteros, in violation of RA 7279 and other applicable laws. On or before June 30, 2011, the MMDA shall submit its plan for the removal of said informal settlers and the demolition of the aforesaid houses, structures, constructions and encroachments, as well as the completion dates for said activities, which shall be fully implemented not later than December 31, 2015. The MMDA is ordered to submit a status report, within thirty (30) days from receipt of this Resolution, on the establishment of a sanitary landfill facility for Metro Manila in compliance with the standards under RA 9003 or the Ecological Solid Waste Management Act. On or before June 30, 2011, the MMDA shall submit a report of the location of open and controlled dumps in Metro Manila whose operations are illegal after February 21, 2006,3 pursuant to Secs. 36 and 37 of RA 9003, and its plan for the closure of these open and controlled dumps to be accomplished not later than December 31, 2012. Also, on or before June 30, 2011, the DENR Secretary, as Chairperson of the National Solid Waste Management Commission (NSWMC), shall submit a report on the location of all open and controlled dumps in Rizal, Cavite, Laguna, Bulacan, Pampanga and Bataan. On or before June 30, 2011, the DENR Secretary, in his capacity as NSWMC Chairperson, shall submit a report on whether or not the following landfills strictly comply with Secs. 41 and 42 of RA 9003 on the establishment and operation of sanitary landfills, to wit: National Capital Region 1. Navotas SLF (PhilEco), Brgy. Tanza (New Site), Navotas City
7

2. Payatas Controlled Dumpsite, Barangay Payatas, Quezon City Region III 3. Sitio Coral, Brgy. Matictic, Norzagaray, Bulacan 4. SitioTiakad, Brgy. San Mateo, Norzagaray, Bulacan 5. Brgy. Minuyan, San Jose del Monte City, Bulacan 6. Brgy. Mapalad, Santa Rosa, Nueva Ecija 7. Sub-zone Kalangitan, Clark Capas, Tarlac Special Economic Zone Region IV-A 8. Kalayaan (Longos), Laguna 9. Brgy. Sto. Nino, San Pablo City, Laguna 10. Brgy. San Antonio (Pilotage SLF), San Pedro, Laguna 11. Morong, Rizal 12. SitioLukutan, Brgy. San Isidro, Rodriguez (Montalban), Rizal (ISWIMS) 13. Brgy. PintongBukawe, San Mateo, Rizal (SMSLFDC) On or before June 30, 2011, the MMDA and the seventeen (17) LGUs in Metro Manila are ordered to jointly submit a report on the average amount of garbage collected monthly per district in all the cities in Metro Manila from January 2009 up to December 31, 2010 vis--vis the average amount of garbage disposed monthly in landfills and dumpsites. In its quarterly report for the last quarter of 2010 and thereafter, MMDA shall report on the apprehensions for violations of the penal provisions of RA 9003, RA 9275 and other laws on pollution for the said period. On or before June 30, 2011, the DPWH and the LGUs in Rizal, Laguna, Cavite, Bulacan, Pampanga, and Bataan shall submit the names and addresses of the informal settlers in their respective areas who, as of September 30, 2010, own or occupy houses, structures, constructions, and other encroachments built 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 breach of RA 7279 and other applicable laws. On or before June 30, 2011, the DPWH and the aforesaid LGUs shall jointly submit their plan for the removal of said informal settlers and the demolition of the aforesaid structures, constructions and encroachments, as well as the completion dates for such activities which shall be implemented not later than December 31, 2012.

(9) The Department of Health (DOH) shall submit to the Court on or before June 30, 2011 the names and addresses of the owners of septic and sludge companies including those that do not have the proper facilities for the treatment and disposal of fecal sludge and sewage coming from septic tanks. The DOH shall implement rules and regulations on Environmental Sanitation Clearances and shall require companies to procure a license to operate from the DOH. The DOH and DENR-Environmental Management Bureau shall develop a toxic and hazardous waste management system by June 30, 2011 which will implement segregation of hospital/toxic/hazardous wastes and prevent mixing with municipal solid waste. On or before June 30, 2011, the DOH shall submit a plan of action to ensure that the said companies have proper disposal facilities and the completion dates of compliance. 1avvphi1 (10) The Department of Education (DepEd) shall submit to the Court on or before May 31, 2011 a report on the specific subjects on pollution prevention, waste management, environmental protection, environmental laws and the like that it has integrated into the school curricula in all levels for the school year 2011-2012. On or before June 30, 2011, the DepEd shall also submit its plan of action to ensure compliance of all the schools under its supervision with respect to the integration of the aforementioned subjects in the school curricula which shall be fully implemented by June 30, 2012. (11) All the agencies are required to submit their quarterly reports electronically using the forms below. The agencies may add other key performance indicators that they have identified. SO ORDERED. G.R. No. 179895 December 18, 2008

FERDINAND S. TOPACIO, petitioner, vs. ASSOCIATE JUSTICE OF THE SANDIGANBAYAN GREGORY SANTOS ONG and THE OFFICE OF THE SOLICITOR GENERAL, respondents. DECISION CARPIO MORALES, J.: 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
9

10

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 Letter-Request/Complaint4 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 Constitution5 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 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 warranto petition 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 DULY-QUALIFIED 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,10he caused the corresponding annotation thereof on his Certificate of Birth. 11
10

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 pleadings12 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 know ledge 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 Court14 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 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 non-compliance 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

11

12

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: 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
12

13

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. 25He 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 x26 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 mandamus29 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.

13

14

x xx [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 warranto or 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 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 Even if the Court treats the case as one for quo warranto, the petition is, just the same, dismissible. 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 of Feliciano v. Villasin,37 that for a quo warranto petition to be successful, theprivate 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 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) 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 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
14

15

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 xx 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 wellestablished 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 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. G.R. No. 141309 June 19, 2007

LIWAYWAY VINZONS-CHATO, petitioner, vs. FORTUNE TOBACCO CORPORATION, respondent. DECISION YNARES-SANTIAGO, J.: Petitioner assails the May 7, 1999 Decision1 of the Court of Appeals in CA-G.R. SP No. 47167, which affirmed the September 29, 1997 Order2 of the Regional Trial Court (RTC) of Marikina, Branch 272, in Civil Case No. 97341-MK, denying petitioners motion to dismiss. The complaint filed by respondent sought to recover damages for the alleged violation of its constitutional rights arising from petitioners issuance of Revenue Memorandum Circular No. 37-93 (RMC 37-93), which the Court declared invalid in Commissioner of Internal Revenue v. Court of Appeals.3
15

16

Petitioner LiwaywayVinzons-Chato was then the Commissioner of Internal Revenue while respondent Fortune Tobacco Corporation is an entity engaged in the manufacture of different brands of cigarettes, among which are "Champion," "Hope," and "More" cigarettes. 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 brands Champion," "Hope," and "More" were considered local brands subjected to an ad valorem tax at the rate of 20-45%. 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.4 RMC 37-93 in effect subjected "Hope," "More," and "Champion" cigarettes to the provisions of RA 7654, specifically, to Sec. 142,5 (c)(1) on locally manufactured cigarettes which are currently classified and taxed at 55%, and which imposes an advalorem tax of "55% provided that the minimum tax shall not be less than Five Pesos (P5.00) per pack."6 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, 1993.7 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.8 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 37-93.9 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.10 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 11 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 dismiss12 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 certification against forum shopping was cured by respondents submission of the corporate secretarys certificate authorizing its counsel to execute the certification against forum shopping. The dispositive portion thereof, states:
16

17

WHEREFORE, foregoing premises considered, the motion to dismiss filed by the defendant LiwaywayVinzons-Chato and the motion to strike out and expunge from the record the said motion to dismiss filed by plaintiff Fortune Tobacco Corporation are both denied on the grounds aforecited. The defendant is ordered to file her answer to the complaint within ten (10) days from receipt of this Order. SO ORDERED.13 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. Undaunted, petitioner filed the instant recourse contending that the suit is grounded on her acts done in the performance of her functions as a public officer, hence, it is Section 38, Book I of the Administrative Code which should be applied. Under this provision, liability will attach only when there is a clear showing of bad faith, malice, or gross negligence. She further averred that the Civil Code, specifically, Article 32 which allows recovery of damages for violation of constitutional rights, is a general law on the liability of public officers; while Section 38, Book I of the Administrative Code is a special law on the superior public officers liability, such that, if the complaint, as in the instant case, does not allege bad faith, malice, or gross negligence, the same is dismissible for failure to state a cause of action. As to the defect of the certification against forum shopping, she urged the Court to strictly construe the rules and to dismiss the complaint. Conversely, respondent argued that Section 38 which treats in general the public officers "acts" from which civil liability may arise, is a general law; while Article 32 which deals specifically with the public officers violation of constitutional rights, is a special provision which should determine whether the complaint states a cause of action or not. Citing the case of Lim v. Ponce de Leon,14 respondent alleged that under Article 32 of the Civil Code, it is enough that there was a violation of the constitutional rights of the plaintiff and it is not required that said public officer should have acted with malice or in bad faith. Hence, it concluded that even granting that the complaint failed to allege bad faith or malice, the motion to dismiss for failure to state a cause of action should be denied inasmuch as bad faith or malice are not necessary to hold petitioner liable. The issues for resolution are as follows: (1) May a public officer be validly sued in his/her private capacity for acts done in connection with the discharge of the functions of his/her office? (2) Which as between Article 32 of the Civil Code and Section 38, Book I of the Administrative Code should govern in determining whether the instant complaint states a cause of action?

17

18

(3) Should the complaint be dismissed for failure to comply with the rule on certification against forum shopping? (4) May petitioner be held liable for damages? On the first issue, the general rule is that a public officer is not liable for damages which a person may suffer arising from the just performance of his official duties and within the scope of his assigned tasks. 15 An officer who acts within his authority to administer the affairs of the office which he/she heads is not liable for damages that may have been caused to another, as it would virtually be a charge against the Republic, which is not amenable to judgment for monetary claims without its consent. 16 However, a public officer is by law not immune from damages in his/her personal capacity for acts done in bad faith which, being outside the scope of his authority, are no longer protected by the mantle of immunity for official actions. 17 Specifically, under Section 38, Book I of the Administrative Code, civil liability may arise where there is bad faith, malice, or gross negligence on the part of a superior public officer. And, under Section 39 of the same Book, civil liability may arise where the subordinate public officers act is characterized by willfulness or negligence. Thus Sec. 38. Liability of Superior Officers. (1) A public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or gross negligence. x xxx Section 39. Liability of Subordinate Officers. No subordinate officer or employee shall be civilly liable for acts done by him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acts under orders or instructions of his superior. In addition, the Court held in Cojuangco, Jr. v. Court of Appeals,18 that a public officer who directly or indirectly violates the constitutional rights of another, may be validly sued for damages under Article 32 of the Civil Code even if his acts were not so tainted with malice or bad faith. Thus, the rule in this jurisdiction is that a public officer may be validly sued in his/her private capacity for acts done in the course of the performance of the functions of the office, where said public officer: (1) acted with malice, bad faith, or negligence; or (2) where the public officer violated a constitutional right of the plaintiff. Anent the second issue, we hold that the complaint filed by respondent stated a cause of action and that the decisive provision thereon is Article 32 of the Civil Code. A general statute is one which embraces a class of subjects or places and does not omit any subject or place naturally belonging to such class. A special statute, as the term is generally understood, is one which relates to particular persons or things of a class or to a particular portion or section of the state only. 19

18

19

A general law and a special law on the same subject are statutes in parimateria and should, accordingly, be read together and harmonized, if possible, with a view to giving effect to both. The rule is that where there are two acts, one of which is special and particular and the other general which, if standing alone, would include the same matter and thus conflict with the special act, the special law must prevail since it evinces the legislative intent more clearly than that of a general statute and must not be taken as intended to affect the more particular and specific provisions of the earlier act, unless it is absolutely necessary so to construe it in order to give its words any meaning at all.20 The circumstance that the special law is passed before or after the general act does not change the principle. Where the special law is later, it will be regarded as an exception to, or a qualification of, the prior general act; and where the general act is later, the special statute will be construed as remaining an exception to its terms, unless repealed expressly or by necessary implication.21 Thus, in City of Manila v. Teotico,22 the Court held that Article 2189 of the Civil Code which holds provinces, cities, and municipalities civilly liable for death or injuries by reason of defective conditions of roads and other public works, is a special provision and should prevail over Section 4 of Republic Act No. 409, the Charter of Manila, in determining the liability for defective street conditions. Under said Charter, the city shall not be held for damages or injuries arising from the failure of the local officials to enforce the provision of the charter, law, or ordinance, or from negligence while enforcing or attempting to enforce the same. As explained by the Court: Manila maintains that the former provision should prevail over the latter, because Republic Act 409 is a special law, intended exclusively for the City of Manila, whereas the Civil Code is a general law, applicable to the entire Philippines. The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true that, insofar as its territorial application is concerned, Republic Act No. 409 is a special law and the Civil Code a general legislation; but, as regards the subject matter of the provisions above quoted, Section 4 of Republic Act 409 establishes a general rule regulating the liability of the City of Manila for "damages or injury to persons or property arising from the failure of" city officers "to enforce the provisions of" said Act "or any other law or ordinance, or from negligence" of the city "Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions." Upon the other hand, Article 2189 of the Civil Code constitutes a particular prescription making "provinces, cities and municipalities . . . liable for damages for the death of, or injury suffered by, any person by reason" specifically "of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision." In other words, said section 4 refers to liability arising from negligence, in general, regardless of the object thereof, whereas Article 2189 governs liability due to "defective streets," in particular. Since the present action is based upon the alleged defective condition of a road, said Article 2189 is decisive thereon.23 In the case of Bagatsing v. Ramirez,24 the issue was which law should govern the publication of a tax ordinance, the City Charter of Manila, a special act which treats ordinances in general and which requires their publication before enactment and after approval, or the Tax Code, a general law, which deals in particular with "ordinances levying or imposing taxes, fees or other charges," and which demands publication only after approval. In holding that it is the Tax Code which should prevail, the Court elucidated that:
19

20

There is no question that the Revised Charter of the City of Manila is a special act since it relates only to the City of Manila, whereas the Local Tax Code is a general law because it applies universally to all local governments. Blackstone defines general law as a universal rule affecting the entire community and special law as one relating to particular persons or things of a class. And the rule commonly said is that a prior special law is not ordinarily repealed by a subsequent general law. The fact that one is special and the other general creates a presumption that the special is to be considered as remaining an exception of the general, one as a general law of the land, the other as the law of a particular case. However, the rule readily yields to a situation where the special statute refers to a subject in general, which the general statute treats in particular. Th[is] exactly is the circumstance obtaining in the case at bar. Section 17 of the Revised Charter of the City of Manila speaks of "ordinance" in general, i.e., irrespective of the nature and scope thereof, whereas, Section 43 of the Local Tax Code relates to "ordinances levying or imposing taxes, fees or other charges" in particular. In regard, therefore, to ordinances in general, the Revised Charter of the City of Manila is doubtless dominant, but, that dominant force loses its continuity when it approaches the realm of "ordinances levying or imposing taxes, fees or other charges" in particular. There, the Local Tax Code controls. Here, as always, a general provision must give way to a particular provision. Special provision governs. Let us examine the provisions involved in the case at bar. Article 32 of the Civil Code provides: ART. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates, or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: x xxx (6) The right against deprivation of property without due process of law; x xxx (8) The right to the equal protection of the laws; x xxx The rationale for its enactment was explained by Dean Bocobo of the Code Commission, as follows: "DEAN BOCOBO. Article 32, regarding individual rights, Attorney CiriloParedes proposes that Article 32 be so amended as to make a public official liable for violation of another persons constitutional rights only if the public official acted maliciously or in bad faith. The Code Commission opposes this suggestion for these reasons: "The very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary therefore that there should be malice or bad faith. To make such a requisite would defeat the main purpose of Article 32 which is the effective protection of individual rights. Public officials in the past have abused their powers on the pretext of justifiable motives or good faith in the performance of their duties.

20

21

Precisely, the object of the Article is to put an end to official abuse by the plea of good faith. In the United States this remedy is in the nature of a tort. "Mr. Chairman, this article is firmly one of the fundamental articles introduced in the New Civil Code to implement democracy. There is no real democracy if a public official is abusing and we made the article so strong and so comprehensive that it concludes an abuse of individual rights even if done in good faith, that official is liable. As a matter of fact, we know that there are very few public officials who openly and definitely abuse the individual rights of the citizens. In most cases, the abuse is justified on a plea of desire to enforce the law to comply with ones duty. And so, if we should limit the scope of this article, that would practically nullify the object of the article. Precisely, the opening object of the article is to put an end to abuses which are justified by a plea of good faith, which is in most cases the plea of officials abusing individual rights."25 The Code Commission deemed it necessary to hold not only public officers but also private individuals civilly liable for violation of the rights enumerated in Article 32 of the Civil Code. It is not necessary that the defendant under this Article should have acted with malice or bad faith, otherwise, it would defeat its main purpose, which is the effective protection of individual rights. It suffices that there is a violation of the constitutional right of the plaintiff.26 Article 32 was patterned after the "tort" in American law.27 A tort is a wrong, a tortious act which has been defined as the commission or omission of an act by one, without right, whereby another receives some injury, directly or indirectly, in person, property, or reputation.28 There are cases in which it has been stated that civil liability in tort is determined by the conduct and not by the mental state of the tortfeasor, and there are circumstances under which the motive of the defendant has been rendered immaterial. The reason sometimes given for the rule is that otherwise, the mental attitude of the alleged wrongdoer, and not the act itself, would determine whether the act was wrongful.29 Presence of good motive, or rather, the absence of an evil motive, does not render lawful an act which is otherwise an invasion of anothers legal right; that is, liability in tort is not precluded by the fact that defendant acted without evil intent. 30 The clear intention therefore of the legislature was to create a distinct cause of action in the nature of tort for violation of constitutional rights, irrespective of the motive or intent of the defendant. 31 This is a fundamental innovation in the Civil Code, and in enacting the Administrative Code pursuant to the exercise of legislative powers, then President Corazon C. Aquino, could not have intended to obliterate this constitutional protection on civil liberties. In Aberca v. Ver,32 it was held that with the enactment of Article 32, the principle of accountability of public officials under the Constitution acquires added meaning and assumes a larger dimension. No longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to answer for the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen. Part of the factors that propelled people power in February 1986 was the widely held perception that the government was callous or indifferent to, if not actually responsible for, the rampant violations of human rights. While it would certainly be too naive to expect that violators of human rights would easily be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no uncertain terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgression, joint tortfeasors.
21

22

On the other hand, Sections 38 and 39, Book I of the Administrative Code, laid down the rule on the civil liability of superior and subordinate public officers for acts done in the performance of their duties. For both superior and subordinate public officers, the presence of bad faith, malice, and negligence are vital elements that will make them liable for damages. Note that while said provisions deal in particular with the liability of government officials, the subject thereof is general, i.e., "acts" done in the performance of official duties, without specifying the action or omission that may give rise to a civil suit against the official concerned. Contrarily, Article 32 of the Civil Code specifies in clear and unequivocal terms a particular specie of an "act" that may give rise to an action for damages against a public officer, and that is, a tort for impairment of rights and liberties. Indeed, Article 32 is the special provision that deals specifically with violation of constitutional rights by public officers. All other actionable acts of public officers are governed by Sections 38 and 39 of the Administrative Code. While the Civil Code, specifically, the Chapter on Human Relations is a general law, Article 32 of the same Chapter is a special and specific provision that holds a public officer liable for and allows redress from a particular class of wrongful acts that may be committed by public officers. Compared thus with Section 38 of the Administrative Code, which broadly deals with civil liability arising from errors in the performance of duties, Article 32 of the Civil Code is the specific provision which must be applied in the instant case precisely filed to seek damages for violation of constitutional rights. The complaint in the instant case was brought under Article 32 of the Civil Code. Considering that bad faith and malice are not necessary in an action based on Article 32 of the Civil Code, the failure to specifically allege the same will not amount to failure to state a cause of action. The courts below therefore correctly denied the motion to dismiss on the ground of failure to state a cause of action, since it is enough that the complaint avers a violation of a constitutional right of the plaintiff. Anent the issue on non-compliance with the rule against forum shopping, the subsequent submission of the secretarys certificate authorizing the counsel to sign and execute the certification against forum shopping cured the defect of respondents complaint. Besides, the merits of the instant case justify the liberal application of the rules.33 WHEREFORE, in view of the foregoing, the petition is DENIED. The Decision of the Court of Appeals dated May 7, 1999 which affirmed the Order of the Regional Trial Court of Marikina, Branch 272, denying petitioner s motion to dismiss, is AFFIRMED. The Presiding Judge, Regional Trial Court of Marikina, Branch 272, is herebyDIRECTED to continue with the proceedings in Civil Case No. 97-341-MK with dispatch. With costs. SO ORDERED. A.M. No. 08-1-07-MeTC July 14, 2008

OFFICE OF THE COURT ADMINISTRATOR, Petitioner, vs. EMMA ANNIE D. ARAFILES, Court Legal Researcher, Metropolitan Trial Court (MeTC), Branch 48, Pasay City, Respondent.
22

23

RESOLUTION BRION, J.: 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.) 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.lawphi1 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.51avvphi1

23

24

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 130 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. G.R. No. 151121 July 21, 2008

RUBEN S. GALERO, Petitioner, vs. THE HONORABLE COURT OF APPEALS, DEPUTY OMBUDSMAN (VISAYAS), and PHILIPPINE PORTS AUTHORITY, Respondents. DECISION NACHURA, J.: For review is the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 57397 dated April 26, 2001 affirming the Resolution2 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 the CAs Resolution3 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 PPA-PMO. 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.

24

25

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-970565 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. BulataSipalay 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 PPAPMO, filled up Civil Service Form No. 48 (DTR) allegedly for services rendered for PPA-PMO from 8:00 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 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
25

26

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 PPA-PMO. 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 PPA-PMO. 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.16The 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: 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. 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

26

27

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),22Article 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: x xxx (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 dismissa l 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 petitio ners 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
27

28

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 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
28

29

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 inde ed 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 City32 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 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 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. 1avvphi1 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
29

30

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 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. G.R. No. 180853 January 20, 2009

MANICAM M. BACSASAR, Petitioner, vs. CIVIL SERVICE COMMISSION, Respondent. DECISION NACHURA, J.: Petitioner Manicam M. Bacsasar (petitioner) filed this Petition for Certiorari seeking to nullify the Resolutions dated June 26, 20071 and October 2, 20072 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 on November 28, 2000 with a rating of 87.54% conducted in Quezon City; 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 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 dated November 28, 2000.3 In her answer, petitioner denied the charge. She averred that on October 15, 2002, a man with the name TingcapPandi, 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

30

31

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 decision5 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 CSC-NCR 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 Bacsasar. Hence, it cannot be denied that Bacsasar is guilty of dishonesty. The CSC disposed, thus: 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 until February 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: 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
31

32

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-in-interest. 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 trial-type proceedings similar to those in the courts of justice. A formal trial-type hearing is not at all times and in all instances essential to due process. What is
32

33

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 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 Records show that petitioner answered the charges against her. She even interposed an appeal from the decision of the CSC-ARMM 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. 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 TingcapPandi 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 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. 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. 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
33

34

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 TingcapPandi. We carefully noted her acts which are inconsistent with her protestation of good faith, thus: First, she obviously knew that TingcapPandi, 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 cannot be obtained without taking and passing an appropriate civil service examination. Second, petitioner claims she relied on the assurance of TingcapPandi, 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. 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 TingcapPandi 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 over-emphasized. 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 therefore committed no reversible error in upholding petitioners dismissal. WHEREFORE, the petition is DENIED. The assailed Resolutions of the Court of Appeals in CA-G.R. SP No. 01508 are AFFIRMED. SO ORDERED. G.R. No. 179245 July 23, 2008

34

35

RASH C. ROQUE, Petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION, THE HON. SECRETARY JOSE D. LINA, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT (DILG), Respondents. DECISION PER CURIAM: This is a petition for review on certiorari1 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 (BFPNCR). 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 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 forP477,989.28 worth of various office supplies; 3. Rich River Commercial for P478,282.91 worth of Good Year tires; 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, Danilodela Pea, and were given to the suppliers who, in turn, negotiated said checks with the Land Bank of the Philippines, Cubao Branch, on December 27, 2002, January 3, 2003 and January 6, 2003.

35

36

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 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.

36

37

On the other hand, petitioner issued a memorandum canceling the directives on the list of inventory sent to him.1awphilHe 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 in the procurement of the supplies. 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 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
37

38

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; 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 superiors and countermanded the same; and 8. 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. Petitione rs 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.
38

39

The dispositive portion of Resolution No. 050947 reads: 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 is AFFIRMED. Roque is also imposed the accessory penalties of perpetual disqualification from re-entering the government service, forfeiture of retirement benefits and cancellation of Civil 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. 050947 and 05-1850 dated July 20, 2004 and December 13, 2005, respectively, of public respondent commission areAFFIRMED.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 counteraffidavit 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
39

40

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 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. 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. 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 doubt Secretary Joey Lina considered the counter-affidavit. This can be gleaned from his decision to wit: 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.
40

41

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 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 availability, the basic procedures for the procurement of supplies are, as follows: 1) 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. 2) 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. 3) 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. 4) 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.

41

42

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 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 petitioner s 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
42

43

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 superi ors, 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 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. SO ORDERED. G.R. No. 177211 March 13, 2009

OFFICE OF THE OMBUDSMAN, Petitioner, vs. RICARDO EVANGELISTA, CONCEPCION MELICAN, GRACE LIMOS and the HON. COURT OF APPELAS (Sixteenth Division) Respondents. DECISION TINGA, J.: Respondents Ricardo Evangelista, Concepcion Melican and Grace Limos (respondents) are the mayor, municipal treasurer and accountant respectively, of Aguilar, Pangasinan. In this petition for certiorari and prohibition,1 the Office of the Ombudsman assails the Court of Appeals decision2 dated March 23, 2007 setting aside the Ombudsmans order placing respondents under preventive suspension. 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
43

44

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 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: 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 (5) days from said receipt of the status of said implementation. SO ORDERED.7 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 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
44

45

was haste in ordering the suspension since the Ombudsman signed the order prior to the Deputy Ombudsmans recommendation of approval. 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. 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 preventive suspension order moot and academic following the doctrine laid down in Mayor Garcia v. Hon. Mojica.9 The petition is meritorious. There is a procedural matter that must first be resolved. 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.10Respondents, 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 on April 13, 2007 or exactly 15 days after the Ombudsman received the decision on March 29, 2007. 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 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.lawphil.net

45

46

As early as 1995, this Court ruled in Lastimosa v. Vasquez14 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 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.

46

47

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.281avvphi1 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. Escarreal29 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.

47

48

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. G.R. No. 167711 October 10, 2008

THE OFFICE OF THE OMBUDSMAN, petitioner, vs. RAMON C. GALICIA, respondent. DECISION REYES, R.T., J.: 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 Decision1 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.
48

49

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. 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, 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 Galicia's 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 CCPC's filing system of scholastic records was disorganized. This, according to Galicia, explained why the school's 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 ducestecumwas 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 of Galicia's 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 xx 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
49

50

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 Re-employment 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,8the Ombudsman nevertheless found that the absence of a certification from the College Registrar destroyed the TOR's credibility. Said the Ombudsman: 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 x xxx 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)

50

51

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 Act12 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 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 Galicia's motion for reconsideration.15 It declared that the Ombudsman's 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. Even granting that R.A. No. 467016 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:

51

52

WHEREFORE, in view of the foregoing, the instant Petition is hereby GRANTED and the Decision dated October 18, 2002 as well as the Order dated July 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 school's 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: 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 government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.
52

53

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 state's 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. Are contrary to law or regulation; 2. Are unreasonable, unfair, oppressive or discriminatory; 3. Are inconsistent with the general course of an agency's functions, though in accordance with law;

53

54

4. Proceed from a mistake of law or an arbitrary ascertainment of facts; 5. Are in the exercise of discretionary powers but for an improper purpose; or 6. 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 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. Estandarte27that 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 ofAlcala 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, governmentowned or controlled corporations and their subsidiaries except over officials who may be removed by
54

55

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 x30 (Emphasis supplied) Be that as it may, We hold here that the Ombudsman's exercise of jurisdiction was proper. The CA was in error in relying on Alcala, without taking into consideration the case's 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 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, that Galicia was given an opportunity by petitioner to comment on the certification issued by De Jesus that CCPC has no record of the TOR and COG presented 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 one's 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
55

56

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 petitioner's transcript does not appear in their records. According to the CA, Galicia did present the original copy of his TOR during the preliminary conference. We quote with approval the observations of the CA on this matter: 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 petitioner's transcript does not appear on their records. It is possible that the transcript of petitioner's 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 . 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)

56

57

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 Ombudsman finding them guilty of falsification, dishonesty, and grave misconduct was upheld. 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. 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. Galicia's original TOR, although belatedly submitted, is positive evidence that, indeed, he took up 18 units of education at the CCPC. The present College Registrar's certification of the absence of Galicia's 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, the petition is DENIED and the appealed Decision AFFIRMED. SO ORDERED. G.R. No. 168309 January 29, 2008

OFFICE OF THE OMBUDSMAN, petitioner, vs. MARIAN D. TORRES and MARICAR D. TORRES, respondents. 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 BarangayChairmanRomancito 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.

57

58

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 full-time 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 Decision4 dated 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 re-election 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 CuelloCalon stated: "La merainexactud no esbastanteparaintegrarestedelito." 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.

58

59

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 xx. Ordinarily, evil intent must unite with an unlawful act for a crime to exist. Actus non facitreum, 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 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." 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 EMPLOYEES LIKE HEREIN PRIVATE RESPONDENTS. THE
59

60

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 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 worktime 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 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.
60

61

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 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.
61

62

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 dentistry-proper 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
62

63

offenses under the Uniform Rules on 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.
63

64

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 jurisprudence 27 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 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 threefold 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 otheradministrative sanctions. This administrative liability is separate and distinct from the penal and civil liabilities. x xx 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.
64

65

We agree with the imposition of the lower penalty considering that respondents public employment with the then Sangguniang 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 are REVERSED and SET ASIDE, and the Decision of the Office of the Ombudsman dated November 9, 2001 is REINSTATED. SO ORDERED. G.R. No. 169013 December 16, 2008

DEPARTMENT OF EDUCATION, represented by its Officer-in-Charge and Undersecretary, RAMON C. BACANI, petitioner, vs. GODOFREDO G. CUANAN, respondent. 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, LuzvimindaBorja 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 LawangKupang 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 Investigation Report4 dated December 14, 1999, finding Cuanan guilty of sexual harassment and recommending his forced resignation without prejudice to
65

66

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. 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 Reconsideration7 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.10Cuanan 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 1st Indorsement, 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 Letter16 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 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/Reconsideration 19 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. 041147 23 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
66

67

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 Decision26 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 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
67

68

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. 02160032 allows the disciplining authority to appeal from a decision exonerating an erring employee, thus: Section 2. Coverage and Definition of Terms. - x xx (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 forcertiorari 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.36Such move would be in accordance with the liberal spirit pervading the Rules of Court and in the interest of substantial justice.37
68

69

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, 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.41 Thus, 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 quasi-judicial 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 AngTibay 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)
69

70

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. 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. G.R. No. 178923 November 27, 2008

OFFICE OF THE OMBUDSMAN, petitioners, vs. ROLANDO L. MAGNO and the COURT OF APPEALS (SPECIAL FORMER FIFTH DIVISION),respondents. 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. LizabethCarreon. 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-ADM-0-00-0148, 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: LizabethCarreon (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 complaint-affidavit5 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; FlocerfidaBabida (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 AntiGraft 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

70

71

Carreon averred that sometime in the first quarter of 1998, she was approached by a close family friend, NoliAldip (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: Resolution No. 25 26 28 29 Purpose For 500 copies of Diksyonaryong Pilipino For 500 copies of Oxford Dictionary For DECS Basic Textbooks in Grade II For DECS Basic Textbooks TOTAL Amount P1,122,250.00 1,247,500.00 2,021,250.00 2,021,250.00 6,412,250.00

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 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 on the PRs and POs for the dictionaries and textbooks.
71

72

Carreon asserted that the actions of Magno, et al. before, during, and subsequent to the delivery of the dictionaries and textbooks were done in evident bad faith and manifest evil design; and that the non-payment of said books caused her undue injury, in violation of Sections 3(e) and (f) of Republic Act No. 3019. Carreons complaint-affidavit gave rise to two separate proceedings before the Ombudsman: a criminal investigation, docketed as OMB-0-00-0350; and an administrative investigation, docketed as OMB-ADM-0-000148. 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-000-0350 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. On 16 April 2001, Atty. Mendoza filed a Manifestation12 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-000-0350.13 In said Joint Counter-Affidavit, filed on 3 April 2000 by Magno, et al. (except Antonio) in OMB-0-000350, 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
72

73

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-0-00-0148 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 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-0-000350 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 Counter-Affidavit, 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
73

74

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 CA-G.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 Reconsideration26 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. Magno opposed the Omnibus Motion of the Ombudsman, contending that the latter was not a real party-ininterest, 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.

74

75

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. x xxx 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
75

76

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. 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. 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.29 The 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 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 CA-G.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 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 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. 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
76

77

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. 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 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, 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 quasijudicial 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.)
77

78

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 quasi-judicial 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 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.
78

79

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 for certiorariassailing 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 nonadmittance 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 60-day 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 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:

79

80

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 A.M. No. 10654-Ret. June 27, 2008

IN RE: PETITION FOR THE FAVORABLE CONSIDERATION OF THE FOUR (4) YEARS LENGTH OF SERVICE AS A SANGGUNIANG BAYAN MEMBER OF THE PETITIONER TO COMPLETE THE TWENTY-ONE YEARS OF GOVERNMENT SERVICE FOR PURPOSES OF RECEIVING HIS MONTHLY LIFETIME PENSION AFTER FIVE (5) YEARS, JUDGE ANTONIO S. ALANO (Ret.).
80

81

RESOLUTION YNARES-SANTIAGO, J.: 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 of General 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 xx. 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. 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
81

82

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
82

83

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 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. x xxx 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 to April 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 xx. (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:
83

84

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 continuously rendered in the judiciary. 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 10-year 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 xx x xxx
84

85

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 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. WHEREFORE, Judge Antonio S. Alanos length of service as Sangguniang Bayan member is ordered CREDITEDin 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. SO ORDERED.

85