FIRST DIVISION

 

 

 

EDMUNDO JOSE T. BUENCAMINO,

Petitioner,

 

 

 

-         versus -

 

 

 

HON. COURT OF APPEALS, OFFICE OF THE OMBUDSMAN, and CONSTANTINO PASCUAL,

Respondents.

 

G. R. No. 175895

 

Present:

 

PUNO, c.j., Chairperson,

Sandoval-Gutierrez,

Corona,

AZCUNA, and

GARCIA, JJ.

 

Promulgated:

 

 

April 12, 2007

 

x -----------------------------------------------------------------------------------------x

D E C I S I O N

 

SANDOVAL-GUTIERREZ, J.:

 

 

Edmundo Jose T. Buencamino, petitioner, is the incumbent mayor of San Miguel, Bulacan, while Constantino Pascual, private respondent, is the president of Rosemoor Mining and Development Corporation, a company engaged in the mining of marble blocks.

On August 27, 2004, private respondent filed with the Office of the Ombudsman, public respondent, an administrative complaint against petitioner for grave misconduct, abuse of authority, acts unbecoming of a public officer, and violation of Republic Act (R.A.) No. 3019 (Anti-Graft and Corrupt Practices Act). In his complaint, private respondent alleged, among others, that the act of petitioner in demanding payment (without official receipt) of a pass way fee or a regulatory fee of P1,000.00 for every delivery truck that passes the territorial jurisdiction of San Miguel, Bulacan is illegal.

In his answer, petitioner denied the allegations of the complaint, explaining that he imposed the payment of regulatory fees pursuant to Kapasiyahan Blg. 89A-055, an ordinance enacted by the Sangguniang Bayan of San Miguel, Bulacan.

However, according to private respondent, the municipal ordinance was disapproved by the Sangguniang Panlalawigan of Bulacan for being ultra vires because the Local Government Code of 1991 does not empower any municipality to impose tax on delivery trucks of mining companies passing through its territorial jurisdiction.

In a Decision dated January 23, 2006, the Office of the Ombudsman declared petitioner administratively liable for abuse of authority and suspended him from office for a period of six (6) months without pay.[1]

Aggrieved, petitioner filed with the Court of Appeals, also impleaded as a public respondent, a petition for review with application for the issuance of a temporary restraining order (TRO) and a writ of preliminary injunction. Petitioner prayed that the Office of the Ombudsman be enjoined from implementing its Decision during the pendency of his appeal, docketed as CA-G.R. SP No. 95546. On August 17, 2006, the appellate court issued a TRO. Subsequently, in its Resolution dated October 17, 2006, petitioners application for preliminary injunction was denied. He then filed a motion for reconsideration, but it was likewise denied in a Resolution dated December 29, 2006.

Hence, the instant petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended. Petitioner alleged therein that in denying his application for a preliminary injunction, the Court of Appeals gravely abused its discretion; that pursuant to Section 7, Rule III of Administrative Order No. 07,[2] the Decision of the Office of the Ombudsman suspending him from office is not immediately executory; and that in enforcing its Decision suspending him from the service during the pendency of his appeal, the Office of the Ombudsman violated Section 27 of R.A. No. 6770 (Ombudsman Act of 1989) and the rulings of this Court in Lapid v. Court of Appeals;[3] Lopez v. Court of Appeals,[4] and Ombudsman v. Laja.[5]

In its comment, the Office of the Ombudsman countered that the Court of Appeals did not gravely abuse its discretion in issuing the assailed Resolutions; and that the cases cited by petitioner are not applicable to this case, the same having been overturned by the ruling of this Court in In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of DPW;[6] and that Section 7, Rule III of Administrative Order No. 07 has been amended by Administrative Order No. 17, thus:

 

x x x this Honorable Court emphatically declared that Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman was already amended by Administrative Order No. 17 wherein the pertinent provision on the execution of the Ombudsmans decision pending appeal is now similar to Section 47 of the Uniform Rules on Administrative Cases in the Civil Service that is, decisions of the Ombudsman are immediately executory even pending appeal.

 

 

 

We agree.

 

 

Section 7, Rule III of Administrative Order No. 07, relied upon by petitioner, 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 not 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 R.A. 6770.

 

 

In interpreting the above provision, this Court held in Laja,[7] citing Lopez,[8] that only orders, directives or decisions of the Office of the Ombudsman in administrative cases imposing the penalties of public censure, reprimand or suspension of not more than one month or a fine not equivalent to one month salary shall be final and unappealable hence, immediately executory. In all other disciplinary cases where the penalty imposed is other than public censure, reprimand, or suspension of not more than one month, or a fine not equivalent to one month salary, the law gives the respondent the right to appeal. In these cases, the order, directive or decision becomes final and executory only after the lapse of the period to appeal if no appeal is perfected, or after the denial of the appeal from the said order, directive or decision. It is only then that execution shall perforce issue as a matter of right. The fact that the Ombudsman Act gives parties the right to appeal from its decisions should generally carry with it the stay of these decisions pending appeal. Otherwise, the essential nature of these judgments as being appealable would be rendered nugatory.

 

However, as aptly stated by the Office of the Ombudsman in its comment, Section 7, Rule III of Administrative Order No. 07 has been amended by Administrative Order No. 17, thus:

 

Sec. 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 not equivalent to one month salary, the decision shall be final, executory and unappealabe. 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.

 

An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal.

 

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.

 

 

Clearly, considering that an appeal under Administrative Order No. 17, the amendatory rule, shall not stop the Decision of the Office of the Ombudsman from being executory, we hold that the Court of Appeals did not commit grave abuse of discretion in denying petitioners application for injunctive relief.

 

It bears stressing at this point that Section 13(8), Article XI of the Constitution authorizes the Office of the Ombudsman to promulgate its own rules, thus:

 

Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

x x x

(8) Promulgate its own rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.

 

 

In turn, Section 18 of the Ombudsman Act of 1989 provides:

 

 

Section 18. Rules of Procedure. (1) The Office of the Ombudsman shall promulgate its rules of procedure for the effective exercise or performance of its powers, functions and duties.

 

 

 

Furthermore, under Section 27 of R.A. No. 6770, the Office of the Ombudsman has the power to amend or modify its rules as the interest of justice may require.

 

Obviously, the Court of Appeals reliance on Section 7, Rule III of Administrative Order No. 07, as amended by Administrative Order No. 17, is in order.

 

WHEREFORE, we DENY the petition. Costs against petitioner.

 

SO ORDERED.

 

 

ANGELINA SANDOVAL-GUTIERREZ

Associate Justice

 

 

 

 

WE CONCUR:

 

 

REYNATO S. PUNO

Chief Justice

Chairperson

 

 

 

RENATO C. CORONA

Associate Justice

ADOLFO S. AZCUNA

Associate Justice

 

 

 

CANCIO C. GARCIA

Associate Justice

 

 

 

CERTIFICATION

 

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

 

 

REYNATO S. PUNO

Chief Justice

 

 

 

 

 

 



[1] The Department of Interior and Local Government implemented the Decision of the Office of the Ombudsman. The vice-mayor of San Miguel was sworn in as acting mayor.

 

[2] Rules of Procedure of the Ombudsman.

[3] G.R. No. 142261, June 29, 2000, 334 SCRA 738.

[4] G.R. No. 144573, September 24, 2002, 389 SCRA 570.

[5] G.R. No. 169241, May 2, 2006, 488 SCRA 574.

[6] G.R. No. 150274, August 4, 2006, 497 SCRA 626.

[7] Supra.

[8] Supra, citing Lapid, supra.