411 Phil. 204
GONZAGA-REYES, J.:
Before this Court is a
Petition for Review in Certiorari seeking to reverse the Decision[1] dated April 10, 2001 rendered by the Court
of Appeals in CA-G.R. SP No. 56973 as well as the Order dated July 1, 1999 of
the Office of the Ombudsman.
The antecedents are as
follows: Petitioner heads the San Miguel Bukid Homeowners' Association, Inc.
whose members have occupied a certain parcel of land in Mandaluyong City. Sometime in March 1995, the City Government
of Mandaluyong initiated the construction of medium size condominiums and row
houses for the benefit of qualified members of the said homeowners'
association. To give way to the
construction, the members of the said homeowners' association had to vacate the
area which they were occupying as the medium size housing project and row
houses were supposed to be completed within 540 days from June 1995. When the period for construction lapsed,
petitioner and the members of the homeowners' association demanded from the
previous City Mayor, Benjamin Abalos, Sr., the completion of the said housing
project but the same allegedly fell on deaf ears. When herein respondent Benjamin Abalos, Jr. assumed office as
Mandaluyong City Mayor, petitioner and his members again made similar demands
for the completion of the housing project. Alleging that the demands have been ignored, petitioner filed on May 17,
1999 an administrative complaint against respondent Abalos, Jr. for violation
of Section 5 (a) of R.A. 6713 (Code of Conduct and Ethical Standards for Public
Officials and Employees) for failing to act promptly on letters and requests
sent by the public. Respondent Office
of the Ombudsman rendered a Decision dated July 21, 1999 dismissing the
administrative complaint "for insufficiency of evidence." The Motion
for Reconsideration therefrom was likewise denied in the Order of September 10,
1999. The order was received by
petitioner on October 15, 1999. On
November 4, 1999, petitioner appealed by way of a petition for review on
certiorari with this Court in G.R. No. 140272. The Second Division denied the petition in the Resolution of November
24, 1999 in view of A.M. No. 9-2-02-SC[2] and the ruling in the case of Fabian vs.
Desierto.[3] The resolution was received by petitioner on
January 18, 2000.
On February 1, 2000,
petitioner filed a "Petition for Review on Certiorari" with the
Court of Appeals which rendered a Decision dated April 10, 2000 dismissing the
petition on the ground that the decision exonerating respondent mayor of
administrative charge is not appealable and that the petition was filed out of
time.
Hence, the present
petition raising the sole ground that:
"THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN RULING THAT THE OMBUDSMAN'S DECISION EXONERATING RESPONDENT ABALOS, JR. OF AN ADMINISTRATIVE CHARGE IS NOT APPEALABLE."
Petitioner claims that
respondent court erred in ruling that it has no appellate authority to review
the decision of the Ombudsman arguing that pursuant to the decision of this
Court in Fabian vs. Desierto, decisions of the Ombudsman in administrative
disciplinary cases should be taken to the Court of Appeals. He insists that the Ombudsman’s decision
absolving respondent Abalos of the charge against him is appealable.
In his Comment and/or
Motion to Dismiss, private respondent Abalos, Jr. argues that under Section 7,
Rule III of Administrative Order No. 7 (Rules of Procedure of the Office of the
Ombudsman), the decision of the Ombudsman is immediately final and unappealable
where the respondent is absolved of the charge. Respondent further avers that the petition was nonetheless filed
out of time as section 7, Rule III of Administrative Order No. 7 provides that
decisions of the office of the Ombudsman in administrative cases not falling
under those immediately declared final and unappealable become final within ten
(10) days unless a motion for reconsideration or a petition for certiorari as
prescribed by Section 27, R.A. 6770 (The Ombudsman Act of 1989) shall have been
filed. Private respondent is of the
view that since the Order dated September 10, 1999 of the Ombudsman denying the
motion for reconsideration was received by petitioner on October 15, 1999 and
on the assumption that appeal is allowed, petitioner had until October 25, 1999
to file his appeal in accordance with Section 27, R.A. 6770 or at the most,
until November 25, 1999, if he availed of the 30-day extension provided under
Section 2, Rule 45 of the 1997 Rules on Civil Procedure; however, the petition
was filed only on February 2, 2000 (sic).
In the Comment filed by
the Office of the Ombudsman, thru the Office of the Solicitor General, it was
averred that the decision of the Ombudsman exonerating respondent Abalos of the
administrative charge is final and unappealable. Citing the case of Lapid vs. Court of Appeals (G.R. No.142261, June
29, 2000), it is of the view that what the Fabian case declared invalid and of
no force and effect is Section 27 of R.A. 6770 relating only to the mode of
appeal from the Office of the Ombudsman to the Supreme Court, which appeal
should now be taken to the Court of Appeals.
In his Reply, petitioner
stresses that the Office of the Ombudsman should not restrict the right of
appeal allowed in Section 27 of R.A. 6770 nor limit the power of review of this
Court. He contends that whether the
decision of the Ombudsman is for conviction or acquittal of the respondent, it
should be reviewed by this Court.
The petition lacks merit.
Section 27 of R.A. 6770
provides:
"SEC. 27. Effectivity and Finality of Decisions. - (1) All provisionary orders at the Office of the Ombudsman are immediately effective and executory.
A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after receipt of written notice and shall be entertained only on any of the following grounds:
(1) New evidence has been discovered which materially affects the order, directive or decision;
(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The motion for reconsideration shall be resolved within three (3) days from filing: Provided, That only one motion for reconsideration shall be entertained.
Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month's salary shall be final and unappealable.
In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court.
The above rules may be amended or modified by the Office of the Ombudsman as the interest may require."
From the above-quoted
provision, it is clear that any order, directive or decision of the Office of
the Ombudsman imposing the penalty of public censure, or reprimand, or
suspension of not more than one month's salary shall be final and
unappealable. The last paragraph in
Section 27 which provides that in all administratively disciplinary cases,
orders, directives, or decisions of the Office of the Ombudsman may be appealed
to the Supreme Court was rendered invalid and of no effect in the case
of Fabian vs. Desierto which laid down the rule that said Section 27 cannot
validly authorize an appeal to this Court from decisions of the Office of the
Ombudsman in administrative disciplinary cases without violating the
proscription in Section 30, Article VI of the Constitution against a law which
increases the appellate jurisdiction of this Court without its advice and concurrence. Thus, appeals from decisions of the Office of the Ombudsman in
administrative disciplinary cases should be brought to the Court of Appeals
under the provisions of Rule 43. The
only provision affected by the Fabian ruling is the designation of the
Court of Appeals as the proper forum and of Rule 43 of the Rules of Court as
the proper mode of appeal; all other matters included in said Section 27,
including the finality or non-finality of decisions, are not affected and still
stand.[4]
Pursuant to the authority
vested in the Office of the Ombudsman to promulgate its rules of procedure,[5] Section 7, Rule III of Administrative Order
No.7 provides:
"SEC. 7. Finality of decision. - Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final and unappealable. In all other cases, the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari shall have been filed by him as prescribed in Section 27 of RA 6770."
The above-quoted
provision explicitly provides that where the respondent is absolved of the
charge, the decision shall be final and unappealable. Although the phrase "(W)hen the respondent is absolved of
the charge" is not one of those instances enumerated in Section 27 of R.A.
6770 wherein the decision shall become final and unappealable, it is implicit
in Section 27, and with greater reason, that decisions of the Ombudsman
absolving the respondent of the charge, should be final and unappealable. Needless to state, in appropriate cases
involving oppressive or arbitrary action, the complainant is not deprived of a
legal recourse by certiorari under Rule 65 of the Rules of Court which apply
suppletorily to the Rules of Procedures of the Office of the Ombudsman.[6] The same case teaches that the failure to
provide for the right of appeal in certain cases from the decision of the
Ombudsman is not a denial of due process for the right to appeal is not a
natural right nor a part of due process; it is merely a statutory privilege and
may be exercised only in the manner and in accordance with the provisions of
the law. It should be recalled that the
Second Division of this Court in G.R. No.140272 denied the appeal by way of
petition for review on certiorari in its Resolution dated November 24, 1999
precisely in view of the ruling in the Fabian case. Simply put, the correct recourse was to the Court of Appeals and
not to this Court.
This notwithstanding,
even on the assumption that appeal is allowed, the same can no longer
prosper. As correctly pointed out by
private respondent, since the Order dated September 10, 1999 of the
Ombudsman denying the motion for reconsideration was received by petitioner on
October 15, 1999, petitioner had until October 25, 1999 to appeal in accordance
with Section 27, R.A. 6770 or at the most, until November 24, 1999, if he
availed of the 30-day extension provided under Section 2, Rule 43 of the 1997
Rules on Civil Procedure. However, the
petition was filed with the Court of Appeals only on February 1, 2000, way
beyond the reglementary period.
Finally, petitioner seeks
an interpretation of Section 5 (a) of R.A. 6713 (Code of Conduct and Ethical
Standard for Public Officials and Employees) arguing that the Court of Appeals
did not discuss the said provision and the merit of his petition filed
therein. It is noted, however,
that the Court of Appeals deemed it no longer necessary to delve into this
issue precisely for the reason that even if the Ombudsman decision was
appealable, the petition was filed beyond the period as the filing of the
petition for review on certiorari with the Supreme Court did not toll the
running of the period to file the petition for review with the Court of
Appeals. We find no cogent reason to
disturb the findings and conclusions of the Court below.
WHEREFORE, the petition for review on certiorari
is hereby DENIED for lack of merit.
SO ORDERED.
[1] Penned by Justice
Romeo Callejo, Jr. with Justices Cancio Garcia and Martin Villarama, Jr.,
concurring.
[2] A.M. No. 99-2-02-SC
(February 9, 1999): Dismissal of Special Civil Action and Denial of Appeal
Relative to Decision, Final Resolution or Order of the Ombudsman in
Administrative Cases -In light of the decision in FABIAN vs. OMBUDSMAN (G.R.
No.129742, 16 September 1998), any appeal by way of petition for review from a
decision or final resolution or order of the Ombudsman in administrative cases
or special civil action relative to such decision, resolution or order filed
with the Supreme Court after 15 March 1999 shall no longer be referred to the
Court of Appeals, but must be forthwith DENIED or DISMISSED.
[3] 295 SCRA 470 (En
Banc).
[4] Lapid vs. Court of
Appeals, et al., G.R. No. 142261, June 29, 2000.
[5] Sections 18, 23 and
27 thereof.
[6] Alba vs.
Nitorreda, 254 SCRA 753 (En Banc).