Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 192334               June 13, 2012

CONRADO CASING, Petitioner,
vs.
HON. OMBUDSMAN, JAIME C. VELASCO and ANGELES DELLOVA, Respondents.

D E C I S I O N

BRION, J.:

Before the Court is a petition for certiorari1 filed by Conrado Casing (petitioner), assailing the March 29, 2007 resolution2 and the January 22, 2009 joint order3 issued by the Ombudsman in OMB-P-C-06-0437-E. These assailed issuances found probable cause against the petitioner for violation of Section 3, paragraph b of Republic Act (R.A.) No. 3019 and denied the petitionerís motion for reconsideration, respectively.

ANTECEDENT FACTS

The petitioner was a Traffic Enforcer and was also designated as Head of Task Force Traffic of "SB" Novaliches District Center (NDC), Quezon City. The officer-in-charge of the NDC was Mr. Tadeo Palma.4

Sometime in 2003, Jaime C. Velasco and Angeles Dellova (complainants) were hired as contractual Traffic Enforcer/Field Coordinator at the NDC, with a monthly salary of ₱6,000.00, under the petitionerís supervision. Upon hiring, the petitioner informed the complainants that they may obtain their salary in advance through one Arlene Sebastian. As advised, and being in dire financial need, the complainants obtained a two-month cash advance from Sebastian. The complainants were surprised to learn that the amount of ₱2,000.00 was automatically deducted from their advanced salary, half of which was given to the petitioner for his effort in helping them find employment.5

In December 2003, the Quezon City government allocated an amount of ₱2,500.00 as "Pamaskong Handog" for its employees. However, when the complainants went to Ms. Fe Chua (the liaison officer at the time), they learned that their Pamaskong Handog had already been withdrawn by Chua, who in turn gave it to the petitioner upon the latterís instruction. Despite repeated demands, the petitioner failed to make good his promise to return the amount to the complainants. Worse, according to the complainants, in December 2005, the petitioner recommended to Mr. Palma not to renew the complainantsí contract, resulting in the termination of their employment.6

The complainants filed a complaint with the Office of the Ombudsman, narrating the foregoing account and charging the petitioner with malversation, violation of R.A. No. 3019 and dishonesty.

The petitioner denied the complainantsí allegations, arguing that he had no hand in releasing the complainantsí salary or monetary benefits. The petitioner added that the complainants have an axe to grind against him for the "unsatisfactory performance" rating he gave them, resulting in the termination of their contractual employment.7

In a decision dated August 6, 2007,8 the Ombudsman found the petitioner administratively liable for grave misconduct and ordered his dismissal from the service. The petitioner appealed the decision to the Court of Appeals.

On the other hand, in a resolution dated March 29, 2007, Graft Investigation Officer Yvette Marie S. Evaristo, with the approval of Ombudsman Ma. Merceditas N. Gutierrez, found probable cause against the petitioner for violation of Section 3 (b), R.A. No. 3019, which reads:

Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

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(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law. [emphasis and italics supplied]

The Ombudsman found:

In the present case, [the petitioner] indirectly demanded and received a share from the salary of complainants, as a consideration for having successfully employed the latter as traffic enforcers in the formerís area of jurisdiction. Complainants[í] employment/commission as traffic enforcers is by virtue of a contract to render service to which [the petitioner] has the capacity to intervene through the exercise of his recommendatory powers for the hiring or employment of the [complainants].

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WHEREFORE, in this light, let an Information for Violation of R.A. 3019, Section 3(b) be FILED against [the petitioner] with the proper court.9 (emphases supplied)

The petitioner moved for reconsideration10 of this resolution but his motion was rebuffed in this wise:

The issue in this case is more on the credibility of the complainants and their testimony as against the denial of the [petitioner]. xxx There is no indication that the allegations of the complainant are tainted with bad faith or motivated by ill will against the respondent. As a matter of fact, their story is not uncommon in the bureaucracy especially in the hiring of casual employees who do not enjoy any security of tenure, and whose jobs depend primarily on the discretion of the employer. As to [the petitionerís statement] that he had no hand in the approval or termination of the complainantsí job orders, documentary evidence showed otherwise.11

Undaunted, the petitioner comes to this Court via a certiorari petition questioning the Ombudsmanís determination of probable cause.

THE PETITION

The petitioner argues that the Ombudsmanís finding of probable cause for violation of Section 3(b) of R.A. No. 3019 "should be proved by clear and convincing evidence,"12 and not by the mere say-so of the complainants that the petitioner deducted an amount from their salary. The petitioner argues that to be charged with violation of Section 3(b) of R.A. No. 3019, the benefit or favor must have been in connection with a transaction with the government in which the public officer has the legal right to intervene. In the present case, the complainants have not presented evidence to prove that he indeed intervened in the process of hiring the complainants, much less that he had a legal right to do so, making the complainantsí allegation incredible. The absence of this element alone negates the Ombudsmanís finding of probable cause.

The petitioner adds that the Ombudsman should have dismissed outright the complaints against him for (i) being filed more than one (1) year from the occurrence of the act complained of, citing Section 4(a), Rule III of Administrative Order (A.O.) No. 17, in relation to Section 20 of the Ombudsman Act of 1989, and (ii) failure to attach a certificate of non-forum shopping, citing Section 3, Rule III of A.O. No. 17.

COMMENT13

The Office of the Ombudsman submits that its appreciation of the evidence and its ratiocination in finding the existence of probable cause, while adverse to the petitioner, are not enough to substantiate a claim of grave abuse of discretion. As against its findings, contained in the assailed issuances, the petitioner offered nothing but bare denial of the charges against him Ė a factual and evidentiary matter that must be properly ventilated in a criminal trial.

The Ombudsman implores the Court to apply its policy of non-interference with the Ombudsmanís determination (i) of the presence or absence of probable cause and, concomitantly, (ii) of the sufficiency of the evidence before it. Citing Lazatin v. Desierto,14 the Ombudsman argues that the issue of the correctness of the Ombudsmanís determination of these matters is outside the province of certiorari.

THE COURTíS RULING

We dismiss the petition for lack of merit.

The Courtís policy of non-interference with the Office of the Ombudsman except in a clear case of grave abuse of discretion

The Constitution and R.A. No. 677015 endowed the Office of the Ombudsman with wide latitude, in the exercise of its investigatory and prosecutory powers, to pass upon criminal complaints involving public officials and employees.16 Specifically, the determination of whether probable cause exists17 is a function that belongs to the Office of the Ombudsman. Whether a criminal case, given its attendant facts and circumstances, should be filed or not is basically its call.18

As a general rule, the Court does not interfere with the Office of the Ombudsmanís exercise of its investigative and prosecutorial powers,19 and respects the initiative and independence inherent in the Office of the Ombudsman which, "beholden to no one, acts as the champion of the people and the preserver of the integrity of the public service."20 While the Ombudsmanís findings as to whether probable cause exists are generally not reviewable by this Court,21 where there is an allegation of grave abuse of discretion, the Ombudsmanís act cannot escape judicial scrutiny under the Courtís own constitutional power and duty "to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."22

Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. The Ombudsmanís exercise of power must have been done in an arbitrary or despotic manner - which must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law Ė in order to exceptionally warrant judicial intervention. The petitioner failed to show the existence of grave abuse of discretion in this case.

Evidentiary basis of probable cause

The petitioner argues that in finding probable cause for violation of Section 3(b) of R.A. No. 3019, the Ombudsman should have used the clear-and-convincing-evidence standard as threshold.

We strongly disagree.

In line with the constitutionally-guaranteed independence of the Office of the Ombudsman23 and coupled with the inherent limitations in a certiorari proceeding in reviewing the Ombudsmanís discretion,24 we have consistently held that so long as substantial evidence supports the Ombudsmanís ruling, his decision should stand.25 In a criminal proceeding before the Ombudsman, the Ombudsman merely determines whether probable cause exists, i.e., whether there is a sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof.26 Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded on such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so.27 As the term itself implies, probable cause is concerned merely with probability and not absolute or even moral certainty;28 it is merely based on opinion and reasonable belief.29 On this score, Galario v. Office of the Ombudsman (Mindanao)30 is instructive

[A] finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and there is enough reason to believe that it was committed by the accused. It need not be based on clear and convincing evidence of guilt, neither on evidence establishing absolute certainty of guilt. A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. [italics, underscoring and emphasis ours.]

A finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge.31

In the present case, the Ombudsmanís finding of probable cause for violation of Section 3(b) of R.A. No. 3019 against the petitioner is supported by substantial evidence. First, the petitioner himself recommended the non-renewal of the complainantsí contractual employment;32 and second, the petitioner is the head of the Task Force where the complainants were previously employed. As the Ombudsman does, we find these facts sufficient to engender a reasonable belief that the petitionerís act satisfies one of the elements33 of the law allegedly violated, and whose existence the petitioner strongly disputes. In turn, these facts rule out any arbitrariness in the Ombudsmanís determination of probable cause. Whether the evidence before the Ombudsman will be sufficient to procure a conviction is a different matter that must await the trial of the criminal case.

Outright dismissal of complaint not warranted

Lastly, the petitioner argues that the Ombudsman should have dismissed the complaint outright for having been filed more than one year from the occurrence of the act or omission complained of.

Again, we disagree. Section 4 of A.O. No. 17 of the Office of the Ombudsman reads:

PROCEDURE IN ADMINISTRATIVE CASES

Section 4. Evaluation. Ė Upon receipt of the complaint, the same shall be evaluated to determine whether the same may be:

a) Dismissed outright for any of the grounds stated under Section 20 of Republic Act No. 6770, provided, however, that the dismissal thereof is not mandatory and shall be discretionary on the part of the Ombudsman or the Deputy Ombudsman. [emphases added]

Section 20 of R.A. No. 6770 provides:

Section 20. Exceptions. ó The Office of the Ombudsman may not conduct the necessary investigation of any administrative act or omission complained of if it believes that:

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(5) The complaint was filed after one (1) year from the occurrence of the act or omission complained of. [emphases added]

A plain reading of these two provisions clearly shows that they do not apply to a criminal case but only to an administrative case.1‚wphi1 Their invocation in the present case is therefore misplaced. Even assuming, however, that these provisions apply to the criminal proceedings below, the obviously permissive wording of the law simply confers on the Ombudsman the discretion whether to conduct an investigation of a complaint even if it was filed more than one year from the date of the act or omission complained of.34 The claim for an outright dismissal simply has no leg to stand on.

On the petitionerís claim that the complaint should have been dismissed for lack of a certificate against forum shopping, suffice it to state that one of the attachments in the petition itself is the certificate against forum shopping attached to the complaint of one of the complainants.35

Even if we assume the absence of the certificate, this would not warrant the outright dismissal of the case by the Ombudsman: first, A.O. No. 17 requires the attachment to the complaint of a certificate against forum shopping only in an administrative case,36 whereas the incident which gave rise to this certiorari petition is the criminal proceeding before the Ombudsman; and second, under the Rules of Court (which applies suppletorily to the Rules of Procedure of the Office of the Ombudsman37 ), the absence of a certificate against forum shopping would not cause the automatic dismissal of the complaint without a prior motion and hearing on the matter.38 No such motion appears to have been filed in the present case. In fact, the petitionerís position paper before the Ombudsman did not raise this issue. It was only after the Ombudsman issued a resolution finding probable cause against him that the petitioner questioned the supposed absence of a certificate against forum shopping. This technical objection is, therefore, deemed waived under Section 1, Rule 9 of the Rules of Court.39

In closing, we reiterate the rule that absent good and compelling reason, the Ombudsmanís finding of probable cause or lack thereof deserves great respect from the Court. If it were otherwise, the Court would be inundated with innumerable petitions ultimately aimed at seeking a review of the Ombudsmanís exercise of discretion on whether to file a case in the courts,40 wreaking havoc to our orderly system of government, based on the principles of separation of powers, and checks and balances. It is only in a clear case of grave abuse of discretion that the Court may properly supplant the Ombudsmanís exercise of discretion.41

WHEREFORE, the petition is hereby DISMISSED.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Senior Associate Justice
Chairperson

JOSE PORTUGAL PEREZ
Associate Justice
MARIA LOURDES P. A. SERENO
Associate Justice

BIENVENIDO L. REYES
Associate Justice

C E R T I F I C A T I O N

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.

ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)


Footnotes

1 Under Rule 65 of the Rules of Court; rollo, pp-3-31.

2 Id. at 37-39.

3 Id. at 34-36.

4 Id. at 5, 67, 72.

5 Id. at 67, 72.

6 Id. at 67-68, 72.

7 Id. at 75.

8 Id. at 77-78.

9 Id. at 38-39.

10 Id. at 40-51, 59-66.

11 Id. at 35.

12 Id. at 14.

13 Per the Courtís July 21, 2010 Resolution (id. at 81), we resolved to dispense with the complainantsí comments as we find the comment of the Ombudsman, whose ruling is assailed, as sufficient to rule on the petition.

14 G.R. No. 147097, June 5, 2009, 588 SCRA 285.

15 AN ACT PROVIDING FOR THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE OFFICE OF THE OMBUDSMAN, AND FOR OTHER PURPOSES.

16 PCGG v. Hon. Desierto, 445 Phil. 154 (2003); Quiambao v. Hon. Desierto, 481 Phil. 852 (2004).

17 Esquivel v. Hon. Ombudsman, 437 Phil. 702 (2002).

18 Presidential Commission on Good Government v. Desierto, G.R. No. 139296, November 23, 2007, 538 SCRA 207.

19 Judge Adoracion G. Angeles v. Hon. Ma. Merceditas N. Gutierrez, etc., et al., G.R. Nos. 189161 and 189173, March 21, 2012.

20 Presidential Ad Hoc Fact Finding Committee on Behest Loans v. Ombudsman Desierto, 415 Phil. 145, 151 (2001).

21 Galario v. Office of the Ombudsman (Mindanao), G.R. No. 166797, July 10, 2007, 527 SCRA 190.

22 1987 CONSTITUTION, Article VIII, Section 1.

23 1987 CONSTITUTION, Article XI, Section 5.

24 Lazatin v. Desierto, supra note 14, at 295, citing First Corporation v. Former Sixth Division of the Court of Appeals, G.R. No. 171989, July 4, 2007, 526 SCRA 564.

25 PCGG v. Hon. Desierto, 528 Phil. 549 (2006); Atty. Salvador v. Hon. Desierto, 464 Phil. 988 (2004); and Morong Water District v. Office of the Deputy Ombudsman, 385 Phil. 45 (2000).

26 Rule 112, Section 3(C)

27 Metropolitan Bank and Trust Company v. Gonzales, G.R. No. 180165, April 7, 2009, 584 SCRA 631.

28 Metropolitan Bank and Trust Company, etc. v. Antonio O. Tobias III, G.R. No. 177780, January 25, 2012.

29 Balangauan v. Court of Appeals, Special Nineteenth Division, Cebu City, G.R. No. 174350, August 13, 2008, 562 SCRA 184.

30 Supra note 21, at 204.

31 Metropolitan Bank and Trust Company v. Gonzales, supra note 27; and Quiambao v. Hon. Desierto, supra note 16.

32 Rollo, p. 70.

33 The elements of the offense are (1) that the offense was committed by a public officer; (2) that such public officer requested and/or received a gift, present, etc.; (3) that the gift, present, etc. was for the benefit of said public officer; (4) that said public officer requested and/or received the gift, present, etc. in connection with a contract or transaction with the government; and (5) that said officer has the right to intervene in such contract or transaction in his/her official capacity under the law. (Atty. Osias v. Court of Appeals, 326 Phil. 107 (1996)).

34 Office of the Ombudsman v. Uldarico P. Andutan, Jr., G.R. No. 164679, July 27, 2011; and Office of the Ombudsman v. De Sahagun, G.R. No. 167982, August 13, 2008, 562 SCRA 122.

35 Rollo, p. 71.

36 Section 3, Rule III, Administrative Order No. 17.

37 Section 3, Rule 5, Administrative Order No. 7, as amended.

38 Section 5, Rule 7, Rules of Court reads:

SEC. 5. Certification against forum shopping. ó The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. [emphasis added]

39 See also Kho v. Court of Appeals, 429 Phil. 140 (2002).

40 Quiambao v. Hon. Desierto, supra note 16.

41 See Erdito Quarto v. The Hon. Ombudsman Simeon Marcelo, et al., G.R. No. 169042, October 5, 2011.


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