543 Phil. 600; 104 OG No. 2, 198 (January 14, 2008)
CHICO-NAZARIO, J.:
Subsequently, on 13 November 2001, based on the above imputed acts plus an additional one,[7] private respondent also filed with the public respondent another Complaint imputing criminal liability to the BSU officials above-named for Violation of Section 3(a) and (e) of Republic Act No. 3019, otherwise known as the "ANTI-GRAFT AND CORRUPT PRACTICES ACT," Violation of Section 5(a) of Republic Act No. 6713, Falsification of Official Documents and Estafa.[8] The criminal complaint was docketed as OMB-1-01-1083-K.
- De Chavez, Lontok, Sr. and Mendoza caused to be collected, and received the proceeds of, graduation fees from the graduating class of SY 2000-2001 without issuing an official receipt and without remitting the same to BSU.
- De Chavez and Lontok, Sr., did not conduct any public bidding for the rental of caps and gowns which were used during the graduation for the SY 2000-2001 and gave the contract to rent caps and gowns to their relatives.
- De Chavez and Lontok, Sr. required and received from the graduating class of SY 2000-2001 the amount of P200.00 from each student as payment for said students' comprehensive examination. Said collection was not authorized by the BSU Board of Regents.
- Lontok, Jr. and Montalbo collected from BSU students internet fees without issuing an official receipt and despite the absence of internet facilities in BSU Lipa City Campus.
- Ligaya collected from BSU students the amount P200.00 each as payment for Related Learning Experience Fee (RLEF) without issuing any official receipt.
- De Chavez and Baes conspired in designating close relatives of De Chavez to key administrative positions in BSU.
- De Chavez made appointments of faculty members and transmitted said appointments to the CSC [Civil Service Commission] without the approval of the BSU Board of Regents.
- De Chavez prevented the elected President of the Federation of Supreme Student Assembly to sit as a member of the Board of Regents.
- De Chavez issued a Memorandum increasing the rates of fees for records and other documents issued by BSU without any approval of the governing Board of the BSU.
- De Chavez, Baes and Zaraspe designated and appointed faculty members to key positions in BSU without any authority under the law, rule or regulation.
- De Chavez and Lontok, Sr. failed to respond to the letter of officials of the PTA-BSU Lipa Campus in violation of R.A. 6713.
- De Chavez collected notarial fees from contractual employees without issuing official receipts.
- De Chavez and Lontok, Sr. did not renew the contract of two faculty members.[6]
In her Reply dated 8 March 2002,[11] private respondent attached therewith a photocopy of the alleged Audit Report dated 7 February 2001 of State Auditor IV Milagros D. Masangkay, Office of the Auditor, Pablo Borbon Memorial Institute of Technology,[12] containing a finding and recommendation on the graduation fees collected by BSU, thus:
- The BSU management did not collect graduation fees for the commencement exercises of SY 2000-2001 like in the previous years. It was claimed that the members of the graduating class, with the guidance of their advisers, were the ones who fixed, collected and disbursed the contributions/fees for the commencement exercises.
- No public bidding was conducted for the rental of the caps and gowns because the BSU did not enter into contract with any supplier. The graduating students have the complete freedom to hire their caps and gowns from anyone. The receipts signed by Lontok, Sr. was merely in acknowledgment of the receipts of certain amounts from Magnaye which the latter requested to be given to Mr. Fralundio Sulit from whom the graduating class rented their caps and gowns.
- Whenever a collection of the internet fee is made, a receipt was issued by the BSU using Accountable Form No. 51. Further no collection of internet fees was made at BSU Lipa City Campus.
- The collection of the Related Learning Experience Fee was done by the Cashier's Office of the College. What was being collected in the past by the Office of Dr. Porfirio Ligaya was the Dual Training Fee for non-degree courses. However, effective the second week of December 2001, the collection of this fee was already turned over to the Cashier's Office of the BSU.
- De Chavez relied on the authority of the Resolution issued by the Office of the President declaring that the designation of the relatives of De Chavez to certain positions in the BSU is not violative of the rule against nepotism. The subject designations were all duly confirmed by the Board of Regents.
- The Board of Regents recognized the practice of De Chavez of submitting first the appointments he made to the CSC for attestation before submitting the same for confirmation of the Board. The appointments of professors/instructors which Magnaye claim is violative of existing law and rules has already been confirmed by the Board of Regents.
- No one has been elected as President of the Federation of Student Assembly. Said position is still non-existent in view of the failure of the student to draft and ratify their constitution and by-laws.
- The increase in miscellaneous fees was duly approved by the Board of Trustees of PBMIT through Board Resolution No. 6 series of 1997.
- The failure to respond to some letters query was brought about by the pre-occupation of petitioners to other pressing and more important matters.
- The BSU neither collects nor shares in the notarial fees charged by the notary public.
- The management can opt to renew or not to renew the contract for employment of some faculty members. They are not governed by the security of tenure as commonly enjoyed by the regular employees of the government.[10]
4. FINDINGPrivate respondent Magnaye also accused the petitioners of grave oppression and harassment for giving her two unsatisfactory performance ratings corresponding to the periods of June to 15 July 2001 and 16 July 2001 to 20 October 2001. She claimed that these ratings were given "as a way to get back at her and lay the basis for dropping her from the rolls of BSU."[13] Of course, petitioners refuted the said imputations.
Graduation fees were not yet issued official receipts and were not taken up in the books of the College despite prior years' audit recommendations and in violation of the provisions of Sections 63 and 68 of Presidential Decree (P.D.) No. 1445, and Section 4(d) of Republic Act (R.A.) No. 8292 resulting to an aggregate understatement of Cash and Trust Liability accounts by about P3,342,550.00.
Section 63 of Presidential Decree (P.D.) No. 1445 requires all moneys and property officially received by a public officer in any capacity or upon any occasion to be accounted for as government funds and government property, while Section 68 of the same presidential decree provides that no payment of any nature shall be received by a collecting officer without immediately issuing an official receipt in acknowledgment thereof.
Under Section 4(d) of Republic Act (R.A.) No. 8292, the higher Education Modernization Act of 1997, state universities and colleges are authorized to deposit in any authorized government depository bank and treat as Special Trust Fund, income from tuition fees and other necessary school charges such as matriculation fees, graduation fees, and laboratory fees.
The existing practice of not issuing official receipts and not taking up in the books of accounts graduation fees paid by graduating students has been an audit finding since 1997.
Based on the Annual Audit Report for calendar year 1999, the graduation fees from 1997-1999 totaled P2,057,600 with an expenses of P921,529.00.
The graduation fees collected and the expenses paid out of these fees during the calendar year 2000 could not be determined due to failure of the employee concerned to furnish this Office with certified statement of collections of graduation fees and the related disbursements together with the supporting papers despite our request to the College President in a letter dated January 17, 2001.
Likewise, in response to our Memorandum dated October 11, 2000 requesting information as to the status of the implementation of the 1999 audit recommendations, the College President informed this Office and I quote "the holding of graduation rites is a tradition of the PBMIT [Pablo Borbon Memorial Institute of Technology] academic community but it is never compulsory. Graduating students may not join the ceremonies but if majority of them decided to hold one, it is their prerogative to plan, execute and evaluate their ceremony. In the process, and through the senior council and/or its advisers, they may agree among themselves to contribute certain amount voluntarily to finance the program. After the rites and if there are cash balances, the graduating class usually donate something to their Alma Mater as their remembrance or legacy. This office, with all due respect to the COA, may not be able to follow the recommendation. This office is not yet ready to break this hallowed tradition.
The continuous refusal of management to implement prior years' audit recommendations and the letter of the Honorable Chairman of the Commission on Audit relative to the handling of graduation fees was already communicated to the Commission on Audit thrice, the latest was last November 8, 2000 when the General Counsel of the Commission on Audit asked for status report.
Since graduation fee is one of the items to be recorded under Special Trust Fund per R.A. No. 8292, failure to record the same in the books of accounts of the Institute understated the cash and trust liability accounts.
Since there were no records submitted to this Office pertaining to graduation fees collected from graduating students, understatement of Cash and Trust Liability Accounts amounting to P1,284,950.00 (Annex G) was based on the number graduating students and the graduation fee per student last school year 1999-2000. The 1999 Annual Audit Report of the previous COA Auditor reported a total collections from 1997 to 1999 of P2,057,600.00. These amounts when added will yield an aggregate understatement of Cash and Trust Liability accounts by about P3,342,550.00.
RECOMMENDATION
Require the accountable officer to issue official receipts (Accountable Form 51) for graduation fees collected and deposit the collections in an authorized government depository bank. Enjoin the Accountant to record in the books of accounts of the College all collections and disbursements conformably with generally accepted accounting principles and in accordance with pertinent laws and regulations.
WHEREFORE, premises considered, it is respectfully recommended that respondents ERNESTO M. DE CHAVEZ, ROLANDO L. LONTOK, SR., and GLORIA G. MENDOZA, be indicted for violation of Section 3(a) of Republic Act No. 3019.Upon review by Ombudsman Simeon V. Marcelo, he issued a Supplemental Resolution dated 12 July 2005 "partially approving" with modifications the Joint Resolution dated 14 February 2005. Among other findings, he found petitioners de Chavez, Lontok, Sr., Lontok, Jr., and Mendoza liable for violation of Section 3(e) and (h) of Republic Act No. 3019 and for violation of Article 315(2)(b) of the Revised Penal Code. He also found petitioners de Chavez, Lontok, Sr., Lontok, Jr., and Ligaya guilty of Dishonesty and Grave Misconduct, and, thus, imposed on them the penalty of Dismissal from the Service with the accessory penalties of forfeiture of retirement benefits and perpetual disqualification from reemployment in the government service.[16] The decretal portion of the Supplemental Resolution reads:
With regard to the rest of respondents, namely: VIRGINIA BAES, AMADOR M. LUALHATI, PORFIRIO C. LIGAYA, VICTORIA A. ZARASPE, ROLANDO M. LONTOK, JR., and JESSIE A. MONTALBO, it is recommended that instant complaints against them be dismissed for lack of probable cause.
WHEREFORE, the 14 February 2005 Joint Resolution of the Office of the Deputy Ombudsman for Luzon is partially approved subject to the following modifications:Aggrieved, the petitioners filed this petition. Petitioner Mendoza filed a Petition in Intervention dated 12 December 2005 after her lawyer found out that she was not included in the instant petition.[17] Her intervention was allowed in the Court's First Division Resolution of 28 August 2006.[18] Both petitions raised the following issues for our consideration:
a) Respondents De Chavez, Lontok, Sr., and Mendoza are hereby found liable for violation of Section 3 (e) RA 3019, as amended, for unlawfully collecting graduation fees. In addition, they are also liable for Estafa under Art. 315 (2) (b) of the Revised Penal Code;
b) Respondents De Chavez and respondent Lontok, Sr. are hereby found liable for violation of Section 3 (e) RA 3019, as amended, in relation to Section 3 (h) thereof, relative to their engaging in the business of rental of caps and gowns;
c) Respondent De Chavez and respondent Lontok, Jr., are found liable for violation of Section 3 (e) RA 3019, as amended, for illegally collecting internet fees from students. In addition, they are also liable for Estafa under Art. 315 (2) (b) of the Revised Penal Code;
d) The Field Investigation Office (FIO) is directed to conduct further fact-finding on respondent Ligaya for probable Malversation under Art. 217 of the Revised Penal Code, for collecting P200.00 each from BSU students as payment for Related Learning Experience Fee (RLEF) without issuing official receipts and misappropriating the same, and to establish with certainty the total amount collected;
e) The Office of the Deputy Ombudsman for Luzon is hereby directed to refer to the Civil Service Commission the administrative aspect of the charges relating to nepotism, appointment, assignment/designation, transfer of personnel, and performance evaluation ratings;
f) The Office of the Deputy Ombudsman for Luzon is also ordered to immediately conduct a fact-finding investigation with respect to the holding of comprehensive examination and the collection of fees therefore;
g) The Field Investigation Office (FIO) is directed to immediately conduct an investigation to gather evidence relative to the students who rented caps and gowns for the school year 2000-2001 and prior to said school year; and
h) Respondents De Chavez, Lontok, Sr., Ligaya and Lontok Jr., are hereby found guilty of Dishonesty and Grave Misconduct and are, thus, meted the penalty of Dismissal from the Service, pursuant to Section 52 (A), Rule IV, Uniform Rules on Administrative Cases in the Civil Service, with the accessory penalties of forfeiture of retirement benefits and perpetual disqualification from employment in government service pursuant to Section 58, Rule IV of the same Uniform Rules on Administrative Cases in the Civil Service.
Corollary thereto, the Civil Service Commission is hereby requested to implement this Order in accordance with law and to advice this Office of compliance thereon. Let a copy of this decision be furnished the Honorable Chairman, Civil Service Commission, Constitution Hills, Diliman, Quezon City.
Apropos the first issue, the petitioners alleged that the public respondent's Supplemental Resolution dated 12 July 2005 categorically stated that petitioners are liable for the criminal acts complained of; that the public respondent did not even discuss the matter of probable cause but instead immediately ruled on their guilt; that the said resolution did not state or instruct the filing of the appropriate criminal informations against them before the courts of justice. Hence, the public respondent's instantaneous finding of criminal liability on their part renders any trial against them an "exercise in futility" which "inevitably clashes with Section 14(2) of the 1987 Constitution which grants to the accused, inter alia, the right to have a speedy, impartial and public trial." Therefore, the public respondent had exceeded its jurisdiction under Republic Act No. 6770, otherwise known as the "Ombudsman Act of 1989," since there is nothing in the said statute which grants to it the power to determine the guilt or innocence of the accused.[20]I.
RESPONDENT OFFICE OF THE OMBUDSMAN COMMITTED GRAVE ABUSE OF DISCRETION AND ACTED WITHOUT JURISDICTION IN FINDING PETITIONERS ALREADY LIABLE FOR CRIMINAL OFFENSES.II.
RESPONDENT OFFICE OF THE OMBUDSMAN COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT DID NOT DISMISS THE TWO SEPARATE BUT IDENTICAL CRIMINAL COMPLAINTS OF PRIVATE RESPONDENT.[19]
SEC. 3. Disputable presumptions. - The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:This presumption of regularity includes the public officer's official actuations in all the phases of his work.[27]
x x x x
(m) That official duty has been regularly performed; x x x.
[a] finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was by the suspects. Probable cause need not be based on evidence establishing absolute certainty of guilt. As well put in Brinegar vs. United States, while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify x x x conviction." A finding of probable cause merely binds over the suspects to stand trial. It is not a pronouncement of guilt. (Emphasis ours.)The public respondent's finding of probable cause to indict petitioners for the crime charged is based on and supported by the complaints under oath of the private respondent, sworn statements and notarized affidavits of her witnesses, and official and public documents submitted by the private respondent.[33] A clarificatory hearing[34] attended by private respondent and almost all of the petitioners was conducted by the public respondent on 13 May 2004. During the hearing, the public respondent asked the private respondent some clarificatory questions with regard to the latter's complaints.
d) The Field Investigation Office (FIO) is directed to conduct further fact-finding on respondent Ligaya for probable Malversation under Art. 217 of the Revised Penal Code, for collecting P200.00 each from BSU students as payment for related Learning Experience Fee (RLEF) without issuing official receipts and misappropriating the same, and to establish with certainty the total amount collected;As it is, the public respondent merely directed the FIO to conduct further investigation and gather more evidence on the liability of petitioner Ligaya for "probable" malversation. It did not in any way conclude that petitioner Ligaya is guilty beyond reasonable doubt of malversation. In fact, it saw the need to first gather more information and evidence before deciding on whether petitioner Ligaya may be indicted for malversation.
The prosecution of offenses committed by public officers is vested in the Office of the Ombudsman. To insulate the Office from outside pressure and improper influence, the Constitution as well as R.A. 6770 has endowed it with wide latitude of investigatory and prosecutory powers virtually free from legislative, executive, or judicial intervention. This Court consistently refrains from interfering with the exercise of its powers, and respect the initiative and independence inherit in the Ombudsman who, "beholden to no one, acts as the champion of the people and the preserver of the integrity of the public service."In Maturan v. People,[41] we held:
A policy of non-interference by the courts in the exercise of the Ombudsman's constitutionally mandated powers 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. Otherwise, the functions of the Court will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they were compelled to review the exercise of discretion on the part of the fiscals, or prosecuting attorneys, each time they decide to file an information in court or dismiss a complaint by private complainant."One final and significant observation. This Court noted that the present petition seeks the annulment of public respondent's Supplemental Resolution dated 12 July 2005 on the criminal (OMB-1-01-1083-K) and administrative (OMB-1-01-1036-K) complaints of private respondent. Procedurally, the remedy of an aggrieved party in criminal complaints before the public respondent where the latter found probable cause is to file with this Court a petition for certiorari under Rule 65.[42] Thus, we gave due course and resolved the issue of finding of probable cause in the criminal aspect of the instant petition.