MARCELO G. GANADEN, OSCAR B. MINA, JOSE M. BAUTISTA AND ERNESTO H. NARCISO, JR.,†††††††††† †††††† †††††††††††††
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†††††††††† G.R. Nos. 170500 &††††††††††††††††††††† †††††††††† †††††††††††††††† 170510-11
†††††††††† CARPIO MORALES, J.,††††
†††††††††† VILLARAMA, JR., and
†††††††††† SERENO, JJ.
THE HONORABLE COURT OF APPEALS, NATIONAL TRANSMISSION COMMISSION (TRANSCO), ALIPIO NOOL, FERMIN P. LANAG, SR., EUSEBIO B. COLLADO, JOSE S. TEJANO, NECIMIO A. ABUZO, ELISEO P. MARTINEZ AND PERFECTO LAZARO,†††††††† †††††††† †††
††††† †††† Promulgated:
††††† †††† June 1, 2011
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VILLARAMA, JR., J.:
Petitioners Marcelo G. Ganaden, Oscar B. Mina, Jose M. Bautista and Ernesto H. Narciso, Jr., pray in their present petition for certiorari that the October 11, 2005, October 28, 2005 and November 23, 2005 Resolutions of the Court of Appeals (CA) in CA-G.R. SP No. 90280-82 be set aside supposedly for having been issued with grave abuse of discretion amounting to lack of or in excess of jurisdiction. Petitioners raise the sole issue of whether administrative decisions of the Office of the Ombudsman imposing the penalties of dismissal and one-year suspension from office are immediately executory pending appeal.†
The facts are as follows.
Petitioners filed motions for reconsideration, but the Office of the Ombudsman, in three Orders all dated April 8, 2005, not only denied their motions for reconsideration, but it also modified the penalties imposed in OMB-L-A-02-0069-B and OMB-L-A-02-0070-B. Instead of the penalty of one-year suspension it originally imposed, the Ombudsman increased the penalty to dismissal from the service as to petitioner Ganaden in OMB-L-A-02-0069-B and as to petitioners Ganaden, Bautista and Narciso in OMB-L-A-02-0070-B.† The penalty of one-year suspension as to petitioner Mina was, however, maintained.
Aggrieved, petitioners filed separate petitions for
review before the CA to question the three Decisions, as well as the Orders denying
their motions for reconsideration. †On
In compliance with the aforesaid 1st
Indorsement, respondent Ortiz issued Orders of Dismissal
against petitioners Ganaden, Bautista, and Narciso, and an Order of Suspension
for one-year against petitioner Mina on
Aggrieved again, petitioners filed with the CA a verified petition to cite respondent Ortiz in contempt for issuing the orders of dismissal and suspension. Petitioners claimed that by virtue of their appeal to the CA and a Resolution of the CA granting their verified motion to amend their petition to include TRANSCO as public respondent, the execution of the three Decisions, as modified by the three Orders of the Ombudsman, was automatically stayed even without a restraining order.† Thus, respondent Ortizís issuance of orders of dismissal and suspension was an outright violation of the authority of the CA amounting to contempt.
Thus, petitioners now come to this Court via a
petition for certiorari to annul the
We dismiss the petition for utter lack of merit.
rely heavily on the cases of Lopez v. Court
of Appeals and
Lapid v. Court of Appeals
where the Court held, in essence, that a decision of the Office of the
Ombudsman in administrative cases is stayed as a matter of right during the
pendency of an appeal. †The Lapid and Lopez cases, however, were decided in 2000 and 2002 respectively.
Since then, there have been amendments to the Rules of Procedure of the
Office of the Ombudsman. At present, Section 7, Rule III of
the Rules of Procedure of the Office of the Ombudsman, as amended by Administrative
Order No. 17, dated
SECTION 7. Finality and Execution of Decision.óWhere 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.
†††††††††† 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. (Emphasis supplied.)
Under this provision, a respondent who is found administratively liable by the Office of the Ombudsman and is slapped with a penalty of suspension of more than one month from service has the right to file an appeal with the CA under Rule 43 of the 1997 Rules of Civil Procedure, as amended.† But although a respondent is given the right to appeal, the act of filing an appeal does not stay the execution of the decision of the Office of the Ombudsman. Such has been the consistent ruling of this Court since our decision in In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of DPWH which overturned the rulings in the Lopez and Lapid cases.†
In the recent case of Office of the Ombudsman v. Court of Appeals and Barriga, a January 2011 case, the Court reiterated the rule as follows:
The provision in the Rules of Procedure of the Office of the Ombudsman is clear that an appeal by a public official from a decision meted out by the Ombudsman shall not stop the decision from being executory. In Office of the Ombudsman v. Court of Appeals and Macabulos, we held that decisions of the Ombudsman are immediately executory even pending appeal in the CA. As explained by this Court in the case of In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of DPWH, this provision in the rules of the Ombudsman is similar to that provided under Section 47 of the Uniform Rules on Administrative Cases in the Civil Service. (Emphasis supplied.)
In fine, the
execution of the April 8, 2005 Orders of the Ombudsman finding petitioners
administratively liable and imposing the penalty of dismissal from service
against petitioners Ganaden, Bautista, and Narciso, and suspension
for one year on petitioner Mina
were not stayed by the filing of an appeal with the CA.† Accordingly, the Resolutions of the CA dated
Grave abuse of discretion is defined as capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility. The subject Resolutions having been issued in accordance with law and existing jurisprudence, no grave abuse of discretion could be ascribed to the appellate court.
WHEREFORE, the petition for
certiorari is DISMISSED. The
The Temporary Restraining
Order issued by this Court on
With costs against petitioners.
MARTIN S. VILLARAMA, JR.
CONCHITA CARPIO MORALES
ARTURO D. BRION
LUCAS P. BERSAMIN
A T T E S T A T I O N
††††††††† I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courtís Division.
CONCHITA CARPIO MORALES
Chairperson, Third Division
C E R T I F I C A T I O N
††††††††† Pursuant to Section 13, Article VIII of the 1987 Constitution and the Division Chairpersonís Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courtís Division.
RENATO C. CORONA
†††††† Rollo, pp. 36-37, 39-40 and 42-43. Penned by Associate Justice Remedios A. Salazar-Fernando with Associate Justices Hakim S. Abdulwahid and Estela M. Perlas-Bernabe concurring.
 ††† G.R.
 ††† G.R.
 ††† G.R. No. 172224,
 ††† G.R.
 ††† Supra note 14.
 ††† De Vera v. De Vera, G.R. No. 172832, April 7, 2009, 584 SCRA 506, 515, citing People v. Court of Appeals, 368 Phil. 169, 180 (1999).