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807 Phil. 529

FIRST DIVISION

[ G.R. No. 213500, March 15, 2017 ]

OFFICE OF THE OMBUDSMAN AND THE FACT-FINDING INVESTIGATION BUREAU (FFIB), OFFICE OF THE DEPUTY OMBUDSMAN FOR THE MILITARY AND OTHER LAW ENFORCEMENT OFFICES (MOLEO), PETITIONERS, VS. PS/SUPT. RAINIER A. ESPINA, RESPONDENT.

D E C I S I O N

PER CURIAM:

Before the Court is a petition for review on certiorari[1] assailing the Decision[2] dated February 27, 2014 and the Resolution[3] dated July 15, 2014 of the Court of Appeals in CA-G.R. SP No. 131114, which modified the Joint Resolution[4] dated December 19, 2012 and the Joint Order[5] dated July 8, 2013 of petitioner the Office of the Ombudsman (Ombudsman) in the administrative aspect of the case, docketed as OMB-P-A-12-0532-G,[6] and, thereby, found respondent PS/Supt. Rainier A. Espina (Espina) administratively liable for Simple Misconduct.

The Facts

On July 11 and 17, 2012, petitioner the Fact-Finding Investigation Bureau (FFIB) of the Office of the Deputy Ombudsman for the Military and Other Law Enforcement Offices (MOLEO) filed before the Ombudsman an affidavit-complaint[7] and a supplemental complaint,[8] respectively, charging Espina and several other PNP officers and private individuals for: (a) violation of Republic Act No. (RA) 7080,[9] RA 3019,[10] RA 9184[11] and its Implementing Rules and Regulations (IRR), and Malversation of Public Funds through Falsification of Public Documents under Article 217 in relation to Article 171 of the Revised Penal Code (RPC); and (b) Grave Misconduct and Serious Dishonesty; arising from alleged anomalies that attended the Philippine National Police's (PNP) procurement of 40 tires, and repair, refurbishment, repowering, and maintenance services of a total of 28 units of V-150 Light Armored Vehicles (LAVs), and the related transportation and delivery expenses of 18 units of LAYs between August and December 2007.[12] It averred that the PNP did not comply with the bidding procedure prescribed under RA 9184 and its IRR, in that: (a) copies of the bid documents were not furnished to possible bidders; (b) no pre-procurement and pre-bid conferences were held; (c) the invitation to bid was not published in a newspaper of general circulation; (d) the procuring agency did not require the submission of eligibility requirements as well as the technical and financial documents from the bidders; and (e) no post qualification was conducted. Further, it claimed that there were "ghost deliveries," i.e., the tires were never delivered to the PNP and no repair and refurbishment works were actually performed on the LAVs.[13] The alleged anomalous transactions are as follows:
Transactions
Amount
 
1. Procurement of 40 tires for 10 LAVs
P 2,940,000.00
 
2. Repowering and refurbishing of 10 LAVs
142,000,000.00
 
3. Repair and maintenance of 18 LAVs
255,600,000.00
 
4. Transportation and delivery expenses[14]
9,200,000.00
 
Total
P409,740,000.00[15]
 
Espina, as the Acting Chief of the Management Division of the PNP Directorate for Comptrollership at the time the procurements were made,[16] was impleaded in the aforesaid complaints for noting/signing the Inspection Report Forms (IRFs),[17] which confirmed the PNP's receipt of the tires and other supplies, and the performance of repair and refurbishment works on the LAYs. According to the FFIB-MOLEO, by affixing his signature on the IRFs, Espina supposedly facilitated the fraudulent disbursement of funds amounting to P409,740,000.00 when no goods were actually delivered and no services were actually rendered.[18]

In defense, Espina denied any participation in the bidding and/or procurement process and maintained that he belonged to the Management Division which is responsible for the inspection of deliveries made to the PNP after the bidding and procurement process.[19] He also pointed out that pursuant to the Standing Operating Procedure (SOP) No. XX4[20] dated November 17, 1993, his only duty, as the said division's Acting Chief, was to note the reports. According to him, it was not his responsibility to personally inspect and confirm deliveries and go beyond the contents of the IRFs submitted by his subordinates, absent any irregularity reported by the property inspectors who are tasked to check and examine deliveries.[21]

The Ombudsman Ruling

In a Joint Resolution[22] dated December 19, 2012, the Ombudsman found probable cause to indict Espina and several other PNP officers for violation of Section 3 (e) of RA 3019, Section 65 (b) (4) of RA 9184, and for Malversation of Public Funds through Falsification under Article 217 in relation to Article 171 of the RPC. The Ombudsman also found them guilty of Grave Misconduct and Serious Dishonesty and, accordingly, recommended their dismissal from government service.[23]

Specifically, the Ombudsman held that Espina executed indispensable acts which led to the completion of the illegal transactions.[24] The Ombudsman likewise found it incredulous that the repair and refurbishment works on the LAVs were completed in only seven (7) days, i.e., from December 20, 2007 to December 27, 2007, considering the magnitude of the work involved, which included the delivery of the LAVs for repair, the inspection and acceptance of materials to be used, the actual conduct of repair and refurbishment works, and the delivery, inspection, and acceptance of the repaired and refurbished LAVs.[25] The Ombudsman even noted the admission of one of the experts engaged in the repair of the LAVs that the repair and refurbishment works thereon were still on-going as late as February 2008 until 2010 and, hence, could not have been completed in December 2007.[26]

On reconsideration, the Ombudsman, through a Joint Orde[27] dated July 8 2013, dropped the charges against Espina and several other PNP Officers, for violation of Section 65 (b) (4) of RA 9184, but sustained the other findings, including their dismissal from service in view of their administrative liability. In denying Espina's motion for reconsideration in the administrative case, the Ombudsman pointed out that while it was not Espina's duty to make his own inspections of the alleged deliveries and work as the same devolved upon the property inspectors, "it was incumbent upon [Espina] to affix his signature only after checking the completeness and propriety of the documents."[28] Such disregard of duty paved the way for the consummation of four (4) highly illegal and irregular transactions, i.e., the disbursement of government funds despite apparent non-delivery of the items and non-performance of works procured.[29]

Aggrieved, Espina filed a petition for review[30] before the CA, impleading both the Ombudsman and the FFIB-MOLEO (collectively, petitioners), docketed as CA-G.R. SP No. 131114.

The CA Ruling

In a Decision[31] dated February 27, 2014, the CA ruled in favor of Espina and held that his act of affixing his signature on the IRFs could not be considered as Grave Misconduct because he did not: (a) unlawfully use his official position for the purpose of benefiting himself;[32] and (b) exhibit corrupt or depraved motives, clear intent to violate the law, or flagrant disregard of established rules. It observed that Espina had no participation in the bidding and procurement process as he belonged to the PNP's Management Division whose function is to inspect and note the deliveries to the PNP after the required bidding and procurement process had taken place. As such, no liability could attach to him absent a nexus between his functions as Acting Chief of the Management Division and the alleged anomalous procurement process.[33]

The CA found Espina guilty, instead, of Simple Misconduct, a less grave offense punishable with suspension for one (1) month and one (1) day to six (6) months for the first offense, and dismissal for the second offense. It rejected Espina's defense of reliance in good faith on the acts of his subordinates, holding that he had the obligation to supervise them and ensure that the IRFs and Work Orders they prepared, as well as every procurement-related document released by his division, were regular, lawful, valid, and accurate, considering the significance of the transaction related to the disbursement of public funds over which great responsibility attached.[34]

However, the CA absolved Espina from the charge of Serious Dishonesty, considering that he did not personally prepare the IRFs but merely affixed his signatures thereon. At best, he imprudently failed to check and counter-check the contents of the IRFs and the Work Orders he signed, which, however, does not equate to Serious Dishonesty.[35]

There being no aggravating or mitigating circumstance, the CA imposed on Espina a three-month suspension reckoned from the time he was actually dismissed from service.[36]

Dissatisfied, petitioners moved for reconsideration[37] which was, however, denied by the CA in a Resolution[38] dated July 15, 2014; hence, the present petition.

The Issue Before the Court

The core issue for the Court's resolution is whether or not Espina should be held administratively liable for the charges imputed against him.

The Court's Ruling

The petition is partly meritorious.

At the outset, the Court emphasizes that as a general rule, factual findings of the Ombudsman are conclusive when supported by substantial evidence and are accorded due respect and weight, especially when affirmed by the CA.[39] In this case, except as to the legal conclusion on what administrative offense was committed by Espina, the Ombudsman and the CA both found that Espina signed the IRFs even if there were actually no tires delivered to the PNP and no repair and refurbishment works performed on the LAVs. Accordingly, these findings of fact are conclusive and binding and shall no longer be delved into, and this Court shall confine itself to the determination of the proper administrative offense chargeable against Espina and the appropriate penalty therefor.

In the case at bar, Espina was charged with grave misconduct and serious dishonesty before the Ombudsman which found him guilty as charged, and imposed on him the supreme penalty of dismissal from government service with all its accessory penalties, while the CA adjudged him guilty only of simple misconduct and punished him with a three-month suspensiOn.

Misconduct generally means wrongful, improper or unlawful conduct motivated by a premeditated, obstinate or intentional purpose.[40] It is intentional wrongdoing or deliberate violation of a rule of law or standard of behavior and to constitute an administrative offense, the misconduct should relate to or be connected with the performance of the official functions and duties of a public officer.[41] It is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer.[42]

There are two (2) types of misconduct, namely: grave misconduct and simple misconduct. In grave misconduct, as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law, or flagrant disregard of an established rule must be manifest.[43] Without any of these elements, the transgression of an established rule is properly characterized as simple misconduct only.[44]

On the other hand, dishonesty, which is defined as the "disposition to lie, cheat, deceive, or defraud; untrustworthiness, lack of integrity,"[45] is classified in three (3) gradations, namely: serious, less serious, and simple.[46] Serious dishonesty comprises dishonest acts: (a) causing serious damage and grave prejudice to the government; (b) directly involving property, accountable forms or money for which respondent is directly accountable and the respondent shows an intent to commit material gain, graft and corruption; (c) exhibiting moral depravity on the part of the respondent; (d) involving a Civil Service examination, irregularity or fake Civil Service eligibility such as, but not limited to, impersonation, cheating and use of crib sheets; (e) committed several times or in various occasions; (f) committed with grave abuse of authority; (g) committed with fraud and/or falsification of official documents relating to respondent's employment; and (h) other analogous circumstances.[47] A dishonest act without the attendance of any of these circumstances can only be characterized as simple dishonesty.[48] In between the aforesaid two forms of dishonesty is less serious dishonesty which obtains when: (a) the dishonest act caused damage and prejudice to the government which is not so serious as to qualify as serious dishonesty; (b) the respondent did not take advantage of his/her position in committing the dishonest act; and (c) other analogous circumstances.[49]

Both grave misconduct and serious dishonesty, of which Espina was charged, are classified as grave offenses for which the penalty of dismissal is meted even for first time offenders.[50]

Here, the CA correctly observed that while Espina may have failed to personally confirm the delivery of the procured items, the same does not constitute dishonesty of any form inasmuch as he did not personally prepare the IRFs but merely affixed his signature thereon after his subordinates supplied the details therein.

Neither can Espina's acts be considered misconduct, grave or simple. The records are bereft of any proof that Espina was motivated by a premeditated, obstinate or deliberate intent of violating the law, or disregarding any established rule, or that he wrongfully used his position to procure some benefit for himself or for another person, contrary to duty and the rights of others.

However, after a circumspect review of the records, the Court finds Espina administratively liable, instead, for Gross Neglect of Duty, warranting his dismissal from government service.[51] At the outset, it should be pointed out that the designation of the offense or offenses with which a person is charged in an administrative case is not controlling, and one may be found guilty of another offense where the substance of the allegations and evidence presented sufficiently proves one's guilt,[52] as in this case. Notably, the FFIB-MOLEO's supplemental complaint accused Espina with failure to exercise due diligence in signing the IRFs, which is sufficient to hold him liable for Gross Neglect of Duty.[53]

Gross neglect of duty is defined as "[n]egligence characterized by want of even slight care, or by acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to the consequences, insofar as other persons may be affected. It is the omission of that care that even inattentive and thoughtless men never fail to give to their own property."[54] In contrast, simple neglect of duty is the failure of an employee or official to give proper attention to a task expected of him or her, signifying a "disregard of a duty resulting from carelessness or indifference."[55]

As aptly observed by the CA, Espina had the obligation to supervise his subordinates and see to it that they have performed their respective functions in accordance with law.[56] To recall, Espina was the Acting Chief and Head of the PNP's Management Division and, as such, had supervisory powers over the departments or sections which comprise it, namely: (a) the Internal Control and Inspection Section (ICIS); (b) the Accountability and Assistance Section; (c) the Management Improvement Section; and (d) the Claims and Examination Section (CES).[57] Espina himself admitted that the property inspectors who were tasked to personally inspect deliveries to the PNP belong to the ICIS which was under his management and stewardship.[58] In Lihaylihay v. People,[59] the Court pointed out that the nature of the public officers' responsibilities and their role in the procurement process are compelling factors that should have led them to examine with greater detail the documents which they are made to approve.

Here, while SOP No. XX4 dated November 17, 1993 which Espina cited does not expressly require the Head of the Management Division to physically re-inspect, re-check, and verify the deliveries to the PNP as reported by the property inspectors under him, his duty was not simply to "note" or take cognizance of the existence of the IRFs, but to reasonably ensure that they were prepared in accordance with law, keeping in mind the basic requirement that the goods allegedly delivered to and services allegedly performed for the government have actually been delivered and performed. As aptly pointed out by the Ombudsman in its Joint Order dated July 8, 2013, "it was incumbent upon [Espinal to affix his signature only after checking the completeness and propriety of the documents."[60] However, while Espina claims that all the necessary supporting documents such as photographs and delivery receipts were attached to the IRFs at the time they were routed to him for his signature,[61] the Court is hard-pressed to find proof substantiating such claim to justify his passive attitude towards them. In this jurisdiction, it is axiomatic that he who alleges a fact has the burden of proving it.[62] Without evidence showing otherwise, the Court is constrained to conclude that the IRFs submitted to Espina for his signature were without supporting documents and could not, perforce, be taken at face value and relied upon. As this Court ruled in Jaca v. People,[63] a superior cannot rely in good faith on the act of a subordinate where the documents that would support the subordinate's action were not even in his (the superior's) possession for examination.

Moreover, the timing of the alleged repair and refurbishment works was suspect. The short seven (7)-day period in December, 2007 during which the repair and refurbishment works were made on the LAVs should have prompted Espina to doubt the veracity of the IRFs. As correctly observed by the Ombudsman, it is improbable that the repair and refurbishment works on the LAVs were carried out from December 20 to 27, 2007, given the magnitude of the work involved and the fact that such period included the delivery of the LAVs for repair, the inspection and approval of the materials to be used for the repairs, the actual repair and refurbishment, and the delivery of the LAVs to the PNP after the repair.[64]

The foregoing should not have escaped Espina's attention had he faithfully discharged the obligations attendant to his office. Indeed, the Court has pronounced that a public officer's high position imposes upon him greater responsibility and obliges him to be more circumspect in his actions and in the discharge of his official duties.[65] This particularly applies to the instant controversy, especially where Espina's signature was one of the final steps needed for the release of payment for the procured items.[66] In fact, the disbursement vouchers prepared by the Logistics Support Service (LSS) Finance Service were routed back to the CES of the Management Division under Espina's supervision for final examination of all claims.[67] With all these considerations, Espina was expected to employ diligence in ensuring that all claims were supported by complete pertinent documents. As succinctly put by the CA, Espina's duty as Acting Chief was not merely ministerial and perfunctory as it related to the disbursement of funds over which a great responsibility attached.[68]

More so, considering the sheer magnitude of the amount in taxpayers' money involved, i.e., P409,740,000.00, Espina should have exercised utmost care before signing the IRFs. It is of no moment that the disbursement of the P409,740,000.00 was spread over several transactions and not through a single payment or that only the IRFs relating to the delivery of supplies were allegedly presented;[69] the fact remains that taxpayers' money was spent without the corresponding goods and services having been delivered to the government. Indeed, no rule is more settled than that a public office is a public trust and public officers and employees must, at all times, be accountable to the people.[70]

Espina cannot trivialize his role in the disbursement of funds and bank on the lack of confidential written reports from his subordinates which would have prompted him to make further inquiry. As aptly pointed out by petitioners, Espina was the last person to affix his signature and, as such, had the power, if not the duty, to unearth and expose anomalous or irregular transactions.[71] Espina cannot blindly adhere to the findings and opinions of his subordinates, lest he be reduced to a mere clerk who has no authority over his subordinates and the sections he oversees.

The Court is not unaware of the ruling in Arias v. Sandiganbayan[72] (Arias) that heads of offices may rely on their subordinates. For the Arias doctrine to apply, however, there must be no reason for the head of offices to go beyond the recommendations of their subordinates,[73] which is not the case here.

Given the amounts involved and the timing of the alleged deliveries, the circumstances reasonably impose on Espina a higher degree of care and vigilance in the discharge of his duties. Thus, he should have been prompted to make further inquiry as to the truth of his subordinates' reports. Had he made the proper inquiries, he would have discovered the non-delivery of the procured items and the non-performance of the procured services, and prevented the unlawful disbursement. However, he did not do this at all. Instead, he blindly relied on the report and recommendation of his subordinates and affixed his signature on the IRFs. Plainly, Espina acted negligently, unmindful of the high position he occupied and the responsibilities it carried, and without regard to his accountability for the hundreds of millions in taxpayers' money involved.

Verily, this Court has repeatedly emphasized the time-honored rule that a "[p]ublic office is a public trust [and] [p]ublic officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice and lead modest lives."[74] This high constitutional standard of conduct is not intended to be mere rhetoric and taken lightly as those in the public service are enjoined to fully comply with this standard or run the risk of facing administrative sanctions ranging from reprimand to the extreme penalty of dismissal from the service.[75] Erring public officials may also be held personally liable for disbursements made in violation of law or regulation, as stated in Section 52,[76] Chapter 9, Subtitle B, Title I, Book V of the Administrative Code of 1987.[77] Thus, public officers, as recipients of public trust, are under obligation to perform the duties of their offices honestly, faithfully, and to the best of their ability.[78] Unfortunately, Espina failed miserably in this respect.

WHEREFORE, the petition is PARTLY GRANTED. The Decision dated February 27, 2014 and the Resolution dated July 15, 2014 of the Court of Appeals in CA-G.R. SP No. 131114 are hereby SET ASIDE. A new one is ENTERED finding respondent Rainier A. Espina GUILTY of GROSS NEGLECT OF DUTY. Accordingly, he is DISMISSED from government service with all the accessory penalties.

SO ORDERED.

Sereno, C. J., Leonardo-De Castro, Del Castillo, and Perlas-Bernabe, JJ., concur.
Caguioa, J., See Separate Concurring.


[1] Rollo, pp. 13-37.

[2] Id. at 47-66. Penned by Associate Justice Jane Aurora C. Lantion with Associate Justices Vicente S.E. Veloso and Nina G. Antonio-Valenzuela concurring.

[3] Id. at 69-72.

[4] Records, Vol. 65, pp. 07529-07636. Signed by the Investigating Panel created Pursuant to Office No. 248, Series of 2012 and approved by Ombudsman Conchita Carpio Morales.

[5] Id. at 07637-07704.

[6] The criminal aspect of the case was docketed as OMB-P-C-12-0503-G.

[7] Dated July 10, 2012. Records, Vol. 56, pp. 02658-02667.

[8] Dated July l7, 2012. Rollo, pp. 131-156.

[9] Otherwise known as the "GOVERNMENT PROCUREMENT REFORM ACT and entitled "AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER" (approved on July 12, 1991).

[10] Entitled "ANTI-GRAFT AND CORRUPT PRACTICES ACT," as amended (approved on August 17, 1960).

[11] Entitled "AN ACT PROVIDING FOR THE MODERNIZATION, STANDARDIZATION AND REGULATION OF THE PROCUREMENT ACTIVITIES OF THE GOVERNMENT AND FOR OTHER PURPOSES, OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT REFORM ACT" (approved on January 10, 2003).

[12] See Records, Vol. 65, pp. 07532-07542.

[13] See id. at 07577-07580.

[14] The fund therefor was realigned on December 17, 2007 to "Other Supplies Expenses." See id. at 07542-07543.

[15] Id. at 07533-07534.

[16] Rollo, p. 53.

[17] Id. at 229. See also the IRFs dated December 14, 18, and 27, 2007; records, Vol. 21, pp. 36-41.

[18] See records, Vol. 65, pp. 07612-07613 and 07627-07628.

[19] Id. at 07563-07564.

[20] Rollo, pp. 125 and 127-129.

[21] Id. at 228-230. See also records, Vol. 65, pp. 07563-07564.

[22] Records, Vol. 65, pp. 07529-07636.

[23] Id. at 07633-07634.

[24] Id. at 07628.

[25] Id. at 07611-07612.

[26] Id. at 07612.

[27] Id. at 07637-07704.

[28] See Joint Order dated July 8, 2013; id. at 07679.

[29] Id. at 07681-07682.

[30] Not attached to the rollo.

[31] Rollo, pp. 47-66.

[32] Id. at 60.

[33] Id. at 61.

[34] Id. at 63-64.

[35] Id. at 64.

[36] Id. at 64-65.

[37] Not attached to the rollo.

[38] Rollo, pp. 69-72.

[39] Cabalit v. Commission on Audit-Region VII, 679 Phil. 138, 157-158 (2012).

[40] Ombudsman v. Magno, 592 Phil. 636, 658 (2008).

[41] Ganzon v. Arlos, 720 Phil. 104, 113 (2013).

[42] Amit v. Commission on Audit (COA), 699 Phil. 9, 26 (2012).

[43] Ganzon v. Arlos, supra note 41.

[44] Imperial v. GSIS, 674 Phil. 286, 296 (2011).

[45] Light Rail Transit Authority v. Salvaña, 736 Phil. 123, 151 (2014), citation omitted.

[46] Id. at 173, citing Civil Service Commission (CSC) Resolution No. 060538 dated April 4, 2006, otherwise known as the "Rules on the Administrative Offense of Dishonesty."

[47] See CSC Resolution No. 060538, Section 3.

[48] See CSC Resolution No. 060538, Section 5.

[49] See CSC Resolution No. 060538, Section 4.

[50] See Section 46 (A) (1) and (3), Rule 10 of the Revised Rules on Administrative Cases in the Civil Service (RRACCS).

[51] See Section 46 (A) (2), Rule 10 of the RRACCS.

[52] Pia v. Gervacio, Jr., 710 Phil. 196, 207 (2013), citing Avenido v. CSC, 576 Phil. 654, 661 (2008).

[53] See rollo, p. 148.

[54] See Ombudsman v. Delos Reyes, Jr., 745 Phil. 366, 381 (2014).

[55] Ombudsman v. De Leon, 705 Phil. 26, 38 (2013), citing Republic v. Canastillo, 551 Phil. 987, 996 (2007).

[56] Rollo, p. 63.

[57] Id. at 123.

[58] Id. at 84-85.

[59] 715 Phil. 722, 732 (2013).

[60] See records, Vol. 65, p. 07679; underscoring supplied.

[61] Rollo, pp. 532-533.

[62] Luxuria Homes, Inc. v. CA, 361 Phil. 989, 1000 (1999).

[63] 702 Phil. 210, 250 (2013).

[64] See Joint Resolution dated December 19, 2012; records, Vol. 65, pp. 07611-07612.

[65] Amit v. COA, supra note 42, at 24.

[66] Rollo, pp. 84-85.

[67] See Joint Order dated July 8, 2013; records, Vol. 65, p. 07682.

[68] Rollo, p. 63.

[69] Id. at 95.

[70] See Section 1, Article XI of the 1987 Constitution.

[71] See rollo, p. 35.

[72] 259 Phil. 794, 801 (1989).

[73] Id.; See also Jaca v. People, supra note 63, at 314.

[74] Section 1, Article XI of the 1987 Constitution

[75] Amit v. COA, supra note 42, at 25.

[76] SECTION 52. General Liability for Unlawful Expenditures. Expenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the official or employee found to be directly responsible therefor.

[77] Executive Order No. 292, series of 1987, entitled "INSTITUTING THE 'ADMINISTRATIVE CODE OF 1987'" (approved on July 25, 1987).

[78] Peñalosa v. Viscaya, Jr., 173 Phil. 487, 489 (1978).



SEPARATE CONCURRING OPINION

CAGUIOA, J.:

I concur with the ponencia in so far as it holds PS/Supt. Rainier A. Espina (Espina) liable for Gross Neglect of Duty under the Revised Rules on Administrative Cases in the Civil Service (RRACCS). I submit this opinion to further emphasize the exceptional circumstances that render the doctrine espoused in Arias v. Sandiganbayan[1] (Arias) inapplicable to this case.

The facts are simple.

Respondent PS/Supt. Rainier Espina (Espina) served as Acting Chief of the Management Division of the Philippine National Police (PNP) Directorate for Comptrollership (Acting Chief) from September 28, 2007 to February 28, 2008.[2]

Several months after Espina's term expired, the Fact Finding Investigation Bureau (FFIB) of the Office of the Deputy Ombudsman for the Military and Other Law Enforcement Offices (MOLEO) filed before the Office of the Ombudsman (Ombudsman) an affidavit-complaint and a supplemental complaint charging Espina, several PNP officers and private individuals of: (i) violation of the Plunder Law; (ii) violation of the Anti-Graft and Corrupt Practices Act; (iii) Malversation of Public Funds through Falsification of Public Documents; (iv) violation of the Government Procurement Reform Act and its Implementing Rules and Regulations (IRR);[3] and (v) Grave Misconduct and Serious Dishonesty.[4] The charges stem from the transactional anomalies that attended the repair, refurbishment and procurement of tires relating to twenty-eight (28) units of V-150 Light Armored Vehicles (LAVs) owned by the PNP.[5]

Espina was impleaded in his capacity as Acting Chief, for signing Inspection Report Forms (IRFs) which falsely confirmed PNP's receipt of procured LAV parts and the completion of the contracted repair and refurbishment works, thereby facilitating the fraudulent disbursement of government funds in the amount of P409,740,000.00.[6]

The Ombudsman initially found probable cause to indict Espina for violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act,[7] Section 65 (b)(4) of the Government Procurement Reform Act[8] and Malversation of Public Funds through Falsification under Article 217 of the Revised Penal Code.[9] The Ombudsman likewise found Espina guilty of Grave Misconduct and Serious Dishonesty, warranting the penalty of dismissal from service.[10] Subsequently, the Ombudsman dropped the charges for violation of the Government Procurement Reform Act, but sustained all its prior findings.

In the CA Decision subject of the instant appeal by certiorari, the CA ruled that Espina could not be held liable for Grave Misconduct and Serious Dishonesty in the absence of proof of corrupt motives, intent to violate the law and flagrant disregard of established rules.[11] Consequently, the CA found Espina guilty only of Simple Misconduct, thus:
WHEREFORE, premises considered, the Petition is PARTIALLY GRANTED. The Joint Resolution dated 19 December 2012 issued by the Office of the Ombudsman, and its Joint Order dated 08 July 2013 are hereby MODIFIED, as follows:

(1)
The portions in the assailed 19 December 2012 Joint Resolution and 08 July 2013 Joint Order finding Petitioner guilty of Grave Misconduct and Serious Dishonesty are REVERSED and SET ASIDE;
(2)
The penalties of dismissal from government service with forfeiture of all benefits and perpetual disqualification to hold public office meted upon Petitioner are likewise SET ASIDE;
(3)
Petitioner is found GUILTY only of Simple Misconduct and the penalty of SUSPENSION of THREE (3) MONTHS is hereby imposed on him, to be reckoned from the time of his actual dismissal from the service.

The period of time that Petitioner remained dismissed from service shall be credited in the implementation of the penalty of THREE (3) MONTHS [s]uspension herein imposed.

After service of the aforesaid suspension period, the Petitioner shall be REINSTATED to his former rank as Police Senior Superintendent (PS/Supt.) and the retirement benefits as well as Petitioner's right to hold public office shall be RESTORED.

SO ORDERED.[12]
On review before this Court, the ponencia set aside the findings of the RTC and CA, holding that the petitioners failed to sufficiently establish Espina's guilt for Serious Dishonesty and Misconduct, both grave and simple.[13] Instead, the ponencia finds that Espina's acts constitute Gross Neglect of Duty under Section 46(A)(1) and (3) of the RRACCS, meriting the penalty of dismissal from government service.[14]

While I concur with the ponencia, I wish to emphasize that the Court's ruling in this case should not be misconstrued as disregarding the inescapable realities of government service which the Court had taken judicial notice of in Arias - "dishonest or negligent subordinates, overwork, multiple assignments and positions." In Arias, the Court, recognizing the volume of documents department heads are required to routinely sign, held that such heads "have to rely, to a reasonable extent, on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations." Therein, the Court proceeded to rule that a finding of conspiracy to defraud the government cannot be made to rest on the department head's signature alone, in the absence of some reason or irregularity which would impel further inquiry.

The ponencia holds that the Arias doctrine cannot be applied in this case due to the existence of reasons that should have impelled Espina to go beyond the findings and recommendations reflected on the face of the IRFs. I agree.

Standard Operating Procedure XX4 (SOP 24) prescribes the guidelines for inspection and acceptance of deliveries of supplies, police products, materials and equipment, as well as the repair, renovation and construction works rendered in favor of the PNP. It provides:
  1. Pre-inspection or inspection before an equipment/machinery/vehicle is repaired is done in order that the Technical Property Inspector/Mngmt. Div., DC-Inspector will have a basis of (sic) determining whether a repair is really needed, the scope of work to be done could be established and missing/damaged/worn-out spare parts to be supplied/replaced be determined. Findings of the pre-repair inspection will guide him in the conduct of post-repair inspection.

  2. Pre-repair inspection is [a] pre-requisite for preparation and approval of the corresponding contract.

  3. The pre-repair portion of the Request for Pre-Repair Inspection Form must be duly accomplished by Property Officer of the Unit/Office concerned x x x and shall be forwarded to the ODC[15] (Attn: Mgmt. Div.)[.]

  4. The corresponding property card should be made available for it is the only evidence/proof that the equipment/vehicle subject for repair is a (sic) government property.

  5. The acquisition date will show if the equipment really warrants outside services. Manufacturers/suppliers usually give a guarantee period of one (1) year for their products. If the equipment is still within the warranty period, repair should then be made by manufacturer/supplier concerned.

  6. The acquisition cost will serve as basis for determining the reasonableness of the cost of repair. More than sixty percent (60%) of the acquisition cost (converted to current rate) is already considered uneconomical.

  7. The date and nature of the last repair will ensure that repair of the same nature or the same scope of work to be done is not repeated.

  8. The list of complaints and possible causes related thereto, including the scope of work to be done[,] are determined by the agency authorized technician and engineer.

  9. The property inspectors (ODC & Technical Inspectors) shall then inspect and verify the correctness of the complaint and causes of malfunctioning including the scope and nature of work to be done to the unit in the presence of the Unit, technician/engineer and/or property officer.

  10. All findings/recommendations of the Technical Inspector/Mgmt. Div. ODC Inspector shall be reflected on the pre-[repair] inspection form and should be noted by Chief-Mgmt. Div, ODC.

  11. x x x the accomplished form, together with the approved Work/Job Order/Contract, supplier's invoice/billing account shall be attached to the request for post-repair inspection.[16] (Emphasis supplied)
In this case, Espina does not deny that he did not conduct further inquiry before affixing his signature on the IRFs in question despite the suspiciously short 7-day period indicated therein within which the repair and refurbishment works on the LAVs were supposedly completed.[17] Espina merely claims that he was not bound to go beyond the findings and recommendations reflected on the IRFs, as he was merely required to "note" the same. A holistic reading of clauses (a) to (k) above, however, shows that in "noting" the findings and recommendations of the ODC inspectors, the Chief of the Management Division is bound to ascertain whether (i) the property subjected to repair constitutes government property, (ii) the conduct of repair was in fact necessary, and (iii) the cost expended for the work done is reasonable. Evidently, these matters can only be verified through a review of the IRFs and the supporting documents that must be appended thereto.

Thus, Espina's liability for gross negligence arises from his reliance on the findings and recommendations of his property inspectors despite the glaring irregularities appearing on the face of the IRFs.

Notably, while Espina claims that no apparent irregularities were in fact ascertainable from the IRFs' supporting documents, he failed to submit these supporting documents in evidence, nor prove, by any other means, that these supporting documents were in fact appended to the IRFs at the time he affixed his signature thereon. These evidentiary lapses, whether inadvertent or otherwise, place Espina's compliance with SOP 24 in serious doubt. It bears stressing that his duty to ascertain the propriety of the repairs conducted on the LAVs and the reasonableness of the corresponding cost were positive ones spelled out in SOP 24. It was thus incumbent upon him to show proof that such duty was in fact complied with, particularly in this case, where the anomalies behind the transactions in question could have been easily uncovered, if only he complied with SOP 24.

For these reasons, the instant Petition is hereby denied.


[1] 259 Phil. 794 (1989).

[2] Rollo, p. 53.

[3] Id.

[4] Id. at 57.

[5] Decision, p. 2.

[6] Id.

[7] Section 3(e) provides:

SEC. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

x x x x

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident had faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

[8]  Section 65(b)(4) provides:

(b) Private individuals who commit any of the following acts, including any public officer, who conspires with them, shall suffer the penalty of imprisonment of not less than six (6) years and one (1) day but not more than fifteen (15) years:

x x x x

(4) When a bidder, by himself or in connivance with others, employ schemes which tend to restrain the natural rivalry of the parties or operates to stifle or suppress competition and thus produce a result disadvantageous to the public.

In addition, the persons involved shall also suffer the penalty of temporary or perpetual disqualification from public office and be permanently disqualified from transacting business with the Government.

[9] Article 217 provides, in part:

Malversation of public funds or property; Presumption of malversation. - Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer:

x x x x

4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled x x x

[10] Decision, p. 3.

[11] Rollo, pp. 60-64.

[12] Id. at 65.

[13] Decision, pp. 5-7.

[14] Id. at 7.

[15] Office of the Directorate for Comptrollership.

[16] Rollo, pp. 125-129.

[17] Id. at 9.

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