553 Phil. 591
AUSTRIA-MARTINEZ, J.:
WHEREFORE, premises considered, the instant complaint against Engineers ANTONIO A. ODEJERTE, DAVID P. ADONGAY, JR. and VIRGILIO G. ALERIA is hereby provisionally DISMISSED, without prejudice to its refiling if circumstances on the result of the post-audit examination report warrants. The complaint against SERAFIN V. PEREZ, JR. is DISMISSED for having been rendered moot and academic.Petitioner then went to the CA on a Petition for Certiorari[21] under Rule 65 of the Rules of Court but the same was dismissed by the CA in the August 29, 2002 Decision assailed herein. He filed a Motion for Reconsideration which the CA denied in the assailed Resolution dated July 25, 2003.
The Resident Auditor of DPWH-Northern Samar Engineering District, Catarman, Northern Samar, is hereby directed to complete its post-audit examination in the questioned project without further delay and after which, to immediately inform this Office of the result of the said post audit examination within five (5) days upon completion of the same.
SO ORDERED.[20]
Whether or not the Court of Appeals committed grave abuse of discretion when it completely deviated from the legal definition and the required quantum of proof of substantial evidence in upholding the decision of the Office of the Ombudsman despite the glaring circumstances that the latter's decision was done capriciously, whimsically or wantonly tantamount to grave abuse of discretion.We resolve the second and third issues ahead of the first.II
Whether or not the Court of Appeals, in ruling out [that] certiorari under Rule 65 of the Rules of Court is not proper remedy, misconstrued or misapplied the doctrine laid down in Tirol and Fabian.III
Whether or not the Court of Appeals correctly applied in the present case the rule that [a] Petition for Certiorari will fail unless a motion for reconsideration is filed.
Section 7. Finality and execution 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, executory and unappealable. In all other cases, the decision may be appealed to the Court of Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the written Notice of the Decision or Order denying the Motion for Reconsideration.The foregoing rule is based on Section 27 of Republic Act No. 6770[25] which provides:
x x x x
A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be a ground for disciplinary action against said officer.(Emphasis ours)
SEC. 27. Effectivity and Finality of Decisions. - (1) All provisionary orders at the Office of the Ombudsman are immediately effective and executory.Notably, exoneration is not mentioned in Section 27 as final and unappealable. However, its inclusion is implicit for, as we held in Barata v. Abalos,[26] if a sentence of censure, reprimand or one-month suspension is considered final and unappealable, so should exoneration.
x x x x
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. x x x (Emphasis ours)
From the above constitutional and statutory provisions and Rule, there are two instances where a decision, resolution or order of the Ombudsman becomes final and unappealable: (1) where the respondent is absolved of the charge; and (2) 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.With more reason, exoneration cannot be appealed by a petition for review under Rule 43 with the CA.[29]
In the instant case, petitioner, in its Resolution dated August 14, 1998, exonerated respondent of the administrative charge. It is implicit in Section 27 of R.A. No. 6770 and Section 7, Rule III of Administrative Order No. 07 that a decision absolving or exonerating respondent of the charge is final and unappealable, meaning, immediately executory. In Alba v. Nitorreda, we upheld the validity of the provisions of Section 27 of R.A. No. 6770 and Section 7, Rule III of Administrative Order No. 07 providing for the immediate finality and non-appealability of the decisions, orders, resolutions, or directives of the Ombudsman in certain cases and declaring that such provisions do not infringe on the due process clause, for the right of 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 provided by law.
In sum, petitioner, by issuing its Orders dated March 17 and August 12, 1999 modifying its final and immediately executory Resolution of August 14, 1998 exonerating respondent, committed a reversible error.
Anent the issue on overpricing, there being no single evidence submitted by the complainant and respondents having fully explained that the amount of P239,126.95 is not excessive, the mere allegation of the complainant sans proof to support it, must fail.The CA correctly sustained the foregoing views of the Ombudsman. Petitioner's evidence on these particular issues was controverted overwhelmingly by the aforecited evidence of respondents. Petitioner appears to have conceded as much for he no longer traversed these issues in his Petition.
We also find merit in respondents' claim that nothing is questionable if the assailed project was implemented and completed ahead of time. We cannot but agree that government projects completed early or on time should be lauded rather than condemned.
x x x x
With regard to the second issue, i.e., whether or not the assailed project was constructed, we rule in the affirmative. Taking the evidence of the complainant as against that of the respondents, we cannot but conclude that the sports facilities were really constructed.
The complainant based his allegations solely on the picture of the site where the disputed project is supposed to have been constructed, which evidence cannot be given greater weight than those adduced by the respondents.
On the other hand, the respondents proved the existence of the assailed project by presenting the following pieces of evidence:These pieces of documentary evidence undoubtedly negated the complainant's allegation that the sports facilities never existed. The herein respondents have in their favor the presumption of regularity in the performance of duty. As testified to by witnesses Bartolome Tan, Jr. former Resident Auditor, Arnulfo V. Galenzoga, Resident Auditor and Mrs. Elvira Dones, Records Officer, all of DPWH - Northern Samar Engineering District, the documetns are genuine. Besides, it would have been impossible for the abovenamed government officials/employees to sign, approve, certify and accept a completed project that is non-existent, knowing fully welll the dire consequences of false representations.[32]
- Statement of Time Elapsed and Work Accomplished dated March 14, 1998 signed by respondents Virgilio Aleria, David Adongay, Serafin Perez, Jr. and Antonio Odejerte showing the completion of the sports facilities at Sitio Barikig, Lavezares, Norther Samar;
- Certification of Completion dated March 18, 1998 signed by Virgilio Aleria proving completion of the subject facilities;
- Certificate of Acceptance dated March 18, 1998 signed by Donato Parina, Brgy. Chairman of Brgy. Urdaneta, in behalf of Sitio Barikig, Brgy. Urdaneta, Lavezares, Northern Samar;
- Inspection Report dated March 18, 1998 signed by Virgilio Aleria, Victorio de Silva, Sandy Pua, Maximo Resuello, Jr., David Adongay, Jr., Serafin Perez, Jr. and Antonio Odejerte proving that the subject facility was completed and inspected; and
- Pictures showing the completed Phases I, II and III of the constructed Barangay Sports Complex at Sitio Barikig, Lavezares, Northern Samar.
a) Annex "A" states that the donation is in favor of Barangay Enriqueta while Annex "1" states that the donation is in favor of Barangay Urdaneta;Clearly, the two sets of documents are conflicting. Such disparity, however, cannot be resolved by us here and now for the issue - whether the donee is Barangay Enriqueta or Barangay Urdaneta - is purely factual, one best left to the post-audit jurisdiction of the Commission on Audit. Besides, there is no necessity for us to look into said issue because, regardless of which set of documents should prevail, one conclusion is inevitable - that at the time the subject project was implemented, the project site had already become public property by virtue of the donation effected. Petitioner's objection to the project as having been built on private property is therefore specious.
b) the second witness to Annex "A" is different from the second witness to Annex "1";
c) Annex "A-1" cites Resolution No. 7 of the Sangguniang Barangay of Enriqueta as basis of the acceptance while in Annex "1-a", acceptance is based on Resolution No. 4 of the Sangguniang Barangay of Urdaneta;
d) in Annex "A-1", acceptance of the donation was made by Cagsawa as Barangay Chairman of Barangay Enriqueta while in Annex "1-a", acceptance was made by Parina as Barangay Chairman of Barangay Urdaneta; and
e) Annexes "A" and "A-1" are certified true copies of the documents on file with the Regional Trial Court of Allen, Northern Samar while Annexes "1" and "1-a" are authenticated copies of documents on file with the DPWH District Office.