601 Phil. 53
AUSTRIA-MARTINEZ, J.:
IN VIEW OF ALL THE FOREGOING, after finding respondent to be administratively liable for Simple MISCONDUCT a penalty of one (1) month suspension from office without pay is hereby imposed, with a warning that a repetition of the same act will be dealt with more severely.The Ombudsman also issued an Order dated January 14, 2002, directing the immediate implementation of its decision pursuant to Administrative Order No. 14, dated July 30, 2000, amending Rule III of Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman) which provides that a penalty not exceeding one month suspension is final and unappealable.[6]
SO ORDERED.[5]
Paragraph 3, Section 13, Article XI of the Constitution dealing specifically on the power of the Ombudsman, provides:The CA further absolved respondent of the offense of simple misconduct in view of findings that respondent was justified in withholding complainants' uniform allowance for lack of authorization from the municipal mayor for the release of said funds as required under the Local Government Code and its implementing rules, as well as Local Budget Circular No. 68 of the Department of Budget and Management.[13] The dispositive portion of the CA Decision reads:(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.In conjunction thereto, Section 12 of Article XI states:Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.We must give Our assent to the stand of petitioner that the operative phrase in Paragraph 3, Section 13, Article XI, is "to recommend". The word "recommend" has been defined by Black's Law Dictionary as "an action which is advisory in nature rather than one having any binding effect."[11]
x x x x
Even under the Ombudsman Act of 1989, wherein the Legislature sought to put more teeth, so to speak, to the Office of the Ombudsman, it may be gleaned from the language of the law that punitive prerogatives have still be withheld from the Ombudsman in so far as the official complained against is concerned. Paragraph 3 of Section 15 of the said law reads:Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties:x x x x
[x x x x]
(3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer; (Emphasis supplied)
Thus, even Republic Act No. 6770 recognizes that the power of the Ombudsman to adjudicate penalty after investigation is merely recommendatory or suggestive, for otherwise, the law would not have to provide for the Ombudsman to first go to the disciplining authority and direct the latter to take appropriate action against the erring government functionary. This is as it should be. For to give it a contrary construction would be productive of nothing but mischief, such being at war with the explicit language of the Fundamental Law. As the spring cannot rise higher than its source, neither can a statute be at variance with the Constitution.
x x x x
Indeed, the Supreme Court in Tapiador v. Office of the Ombudsman, per Justice Sabino de Leon, stated, albeit in an obiter dictum, that "(b)esides, assuming that petitioner were administratively liable, the Ombudsman has no authority to directly dismiss the petitioner from the government service, more particularly from his position in the BID. Under Section 13, subparagraph (3), of Article XI of the 1987 Constitution, the Ombudsman can only 'recommend' the removal or the public official or employee found to be at fault, to the public official concerned.
In fine, We find, and so hold, that the Office of the Ombudsman has only the power to investigate possible misconduct of a government official or employee in the performance of his functions, and thereafter recommend to the disciplining authority the appropriate penalty to be meted out, and that it is the disciplining authority that has the power or prerogative to impose such penalty.[12]
WHEREFORE, the Petition is hereby GRANTED. The impugned Order [sic] of the Office of the Ombudsman, having been issued without grave abuse of discretion amounting to excess of jurisdiction, hereby ANNULLED AND SET ASIDE.The Ombudsman's motion for reconsideration was denied by the CA.[15]
SO ORDERED.[14]
have long been resolved by the Court in Office of the Ombudsman v. Court of Appeals and Armilla,[22] Office of the Ombudsman v. Court of Appeals and Santos,[23] and Herrera v. Bohol.[24]I
Is the Office of the Ombudsman empowered to conduct administrative adjudication proceedings against public officers over whom it has jurisdiction?II
Are orders/decisions of the Office of the Ombudsman imposing the penalty of suspension of one month appealable?[21]
Still in connection with their administrative disciplinary authority, the Ombudsman and his deputies are expressly given the power to preventively suspend public officials and employees facing administrative charges in accordance with Section 24 of Republic Act No. 6770:Moreover, in Office of the Ombudsman v. Court of Appeals and Santos, the Court drew attention to subparagraph 3 of Sec. 15 of R.A. No. 6770, which provides:Sec. 24. Preventive Suspension. - The Ombudsman and his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.As referred to in the above provision, under Presidential Decree No. 807,[32] the penalties that may be imposed by the disciplining authority in administrative disciplinary cases are removal from the service, transfer, demotion in rank, suspension for not more than one year without pay, fine in an amount not exceeding six months' salary, or reprimand. Section 27 of Republic Act No. 6770 provides for the period of effectivity and finality of the decisions of the Office of the Ombudsman:
Section 25 thereof sets forth the penalties as follows:
Sec. 25. Penalties. - (1) In administrative proceedings under Presidential Decree No. 807, the penalties and rules provided therein shall be applied. (2) In other administrative proceedings, the penalty ranging from suspension without pay for one year to dismissal with forfeiture of benefits or a fine ranging from five thousand pesos (P5,000.00) to twice the amount malversed, illegally taken or lost, or both at the discretion of the Ombudsman, taking into consideration circumstances that mitigate or aggravate the liability of the officer or employee found guilty of the complaint or charges.
Sec. 27. Effectivity and Finality of Decisions. - (1) All provisionary orders of the Office of the Ombudsman are immediately effective and executory. x x x x
Findings of facts 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 x
All these provisions in Republic Act No. 6770 taken together reveal the manifest intent of the lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the entire gamut of administrative adjudication which entails the authority to, inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers and employees pending an investigation, determine the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and, necessarily, impose the said penalty.
Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties:The Court held that the aforecited proviso -- that the refusal, without just cause, of any officer to comply with an order of the Ombudsman to penalize an erring officer or employee with removal, suspension, demotion, fine, censure, or prosecution is a ground for disciplinary action against said officer -- is a strong indication that the Ombudsman's "recommendation" is not merely advisory in nature but is actually mandatory within the bounds of law.
x x x x
(3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer. (Emphasis supplied)
x x x [T]he Court, again citing Sec. 27 of R.A. No. 6770, Sec. 7, Rule III of the Rules of Procedure of the Office of the Ombudsman and Lapid v. Court of Appeals, reiterated that decisions of the Ombudsman in administrative cases imposing the penalty of public censure, reprimand, or suspension of not more than one month, or a fine equivalent to one month salary shall be final and unappealable. The penalty imposed upon herein petitioner being suspension for one month without pay, we hold the same final and unappealable, as correctly ruled by the Court of Appeals. (Emphasis added)Thus, the CA erred when it reviewed on appeal the factual basis of the Ombudsman decision despite its being final and unappealable under Sec. 27 of R.A. No. 6770. As we held in Republic v. Francisco,[28] considering that a decision of the Ombudsman imposing the penalty of suspension for not more than one month is final and unappealable, "it follows that the CA ha[s] no appellate jurisdiction to review, rectify or reverse the same." This is not to say that decisions of the Ombudsman cannot be questioned - such decisions are still subject to the test of arbitrariness or grave abuse of discretion through a petition for certiorari under Rule 65 of the Rules of Court. However, as earlier discussed, the Ombudsman did not act with grave abuse of discretion in imposing on respondent the penalty of suspension without pay for not more than one month, the same being within its ample authority to impose under the Constitution and R.A. No. 6770.