532 Phil. 734
YNARES-SANTIAGO, J.:
WHEREFORE, premises considered, the petition is GRANTED. The assailed Resolutions dated April [11], 2003 and June 26, 2003 are SET ASIDE. The charge/complaint against petitioner Nita P. Buenaobra is hereby ordered DISMISSED for complete lack of evidence against the petitioner.Petitioner's motion for reconsideration was denied, hence, the instant petition.
SO ORDERED.[12]
Sec. 6. The Non-Career Service shall be characterized by (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made.Based on the foregoing, respondent who is the Chairman of the KWP is a non-career service personnel whose tenure is limited to seven years as provided under R.A. No. 7104. Since her tenure is fixed by law, her removal from office is not at the pleasure of the appointing authority.
The Non-Career Service shall include:
x x x xx x x x
- Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; (Emphasis added)
Regardless of the classification of the position held by a government employee covered by civil service rules, be it a career or non-career position, such employee may not be removed without just cause. An employee who belongs to the non-career service is protected from removal or suspension without just cause and non-observance of due process.Moreover, there is no showing that respondent's failure to file suit to collect the royalty fee prejudiced the government. In its assailed Resolution dated June 26, 2003, petitioner held that there was a PAGC "categorical finding"[16] of violation of Sec. 3(e) of R.A. No. 3019. However, it was a bare conclusion by the PAGC in violation of Sec. 5, Rule VII, Part III of the PAGC New Rules of Procedure,[17] that in every case, the "Commission shall use any and all reasonable means to ascertain the facts in each case or complaint speedily and objectively and without regard to technicalities of law or procedure, in all instances observing due process."
x x x x
The constitutional and statutory guarantee of security of tenure is extended to both those in the career and non-career service positions, and the cause under which an employee may be removed or suspended must naturally have some relation to the character or fitness of the officer or employee, for the discharge of the functions of his office, or expiration of the project for which the employment was extended. (Emphasis supplied)
The act of "not taking legal action to collect" is not defined by any criminal statute as an offense by omission per se. If it were so, a sizeable number of public officials would be out of the government service by mere omission to take such action. But could the same act be the basis for administrative action against an erring public official? Logically since such an omission is not a criminal offense per se, it could be the basis of an administrative action only if there is a positive duty to take legal action clearly imposed upon the petitioner.WHEREFORE, based on the foregoing, the petition is DENIED. The Decision of the Court of Appeals dated May 27, 2005 in CA-G.R. SP No. 78279, which reversed and set aside the Resolutions dated April 11, 2003 and June 26, 2003 of the Office of the President dismissing respondent Nita P. Buenaobra from the service, and its Resolution dated October 3, 2005 denying petitioner's Motion for Reconsideration, are AFFIRMED.
In the instant case, insofar as the criminal aspect of the case is concerned, the office of the Ombudsman already ruled that the accused x x x "cannot be faulted if she instituted no action to collect royalty fee from the publishing house. In fact, if she instituted such action, the same would be unauthorized and without legal basis as there was no contract between the KWF and the publisher." It is for this reason that the Motion to Withdraw Information in Criminal Case No. 26918 entitled People vs. Nita P. Buenaobra was granted by the Fifth Division of the Sandiganbayan.
This lack of positive duty to take legal action on the part of the petitioner is bolstered by the fact that KWF Board Resolution No. 2002-2 specifically disauthorized her to enter into a contract with Merylvin Publishing House, thus, Buenaobra's inaction to collect the 15% royalty fee from said publisher was only in accord with the KWF Board of Commissioners' decision. KWF is a collegial body and as such it acts only in accordance with the Board's directives. In fact, much earlier, the offer to pay fifteen percent (15%) royalty fee was referred by the KWF Board to the State Auditor for his comment and recommendations under Resolution No. 2000-1 passed and approved on February 2, 2000.
Petitioner Buenaobra was dismissed from the service as a result of an illogical conclusion of an unreasonable mind. Buenaobra was charged for her omission to collect from Merylvin Publishing House but the KWF Board of Commissioners, of which the private complainant is a member, disauthorized Buenaobra from entering into a contract with Merylvin Publishing House (which offered the 15% royalty fee), which would have been the basis for collection. Clearly then, as pointed out by the Office of the Ombudsman, without such contract, there was no basis for collection. If We have to pinpoint responsibility for non-collection, it is not because of the inaction of Buenaobra but because of the KWF Board Resolution No. 2000-2 disauthorizing Buenaobra from entering into a contract with Merylvin Publishing House. The sad thing is that one of the signatories of said resolution is the private complainant KWF Commissioner Fe Aldave-Yap, who is herself the cause of the non-collection. The filing of this complaint resulting in the resolution of the administrative body dismissing petitioner Buenaobra from government service is a sad commentary of the mentality of public functionaries who file cases and those who cursorily give them due course even though the factual bases clearly show a comedy of errors. It escapes logic and clear thinking why this complaint against petitioner was filed and entertained in the first place. x x x.
x x x x
Buenaobra did not give any unwarranted benefits, advantage or preference to the publisher nor had she acted with manifest partiality, evident bad faith or gross inexcusable negligence. Such being the case, it necessarily follows that the charge/complaint against petitioner must be dismissed.[18] (Italics and emphasis in the original)