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FIRST DIVISION [G.R. No. 146731. January 13, 2004] AGUSTINA M. ENEMECIO, petitioner, vs. OFFICE OF THE OMBUDSMAN (VISAYAS) and SERVANDO BERNANTE, respondents. D E C I S I O N CARPIO, J.: The Case Before us is a petition for review on certiorari[1] assailing the Resolution[2] dated 31 May 2000 of the Court of Appeals in CA-G.R. SP No. 58875. The Court of Appeals dismissed for being an inappropriate remedy the petition for certiorari filed by petitioner Agustina M. Enemecio against respondents Office of the Ombudsman and Servando Bernante. The present petition also assails the Court of Appeals’ Resolution dated 7 December 2000 denying petitioner’s motion for reconsideration. The Antecedents Petitioner Agustina M. Enemecio (“Enemecio”) is a utility worker at the Cebu State College of Science and Technology, College of Fisheries Technology (“CSCST-CFT”), Carmen, Cebu. Private respondent Servando Bernante (“Bernante”) is an Assistant Professor IV of CSCST-CFT. On 30 March 1998, Enemecio filed an administrative complaint for gross misconduct, falsification of public documents, malversation, dishonesty and defamation against Bernante before the Office of the Executive Dean of CSCST-CFT.[3] Dr. Severino R. Romano, CSCST-CFT Executive Dean, indorsed the complaint to the Office of the Ombudsman for the Visayas (“Ombudsman”). Enemecio also filed with the Ombudsman a criminal complaint against Bernante for falsification of public document.[4] The Ombudsman ordered Enemecio to submit her affidavit and the affidavits of her witnesses. After Enemecio submitted the required affidavits, the Ombudsman ordered Bernante to submit his counter-affidavit. The administrative complaint was docketed as OMB-VIS-ADM-98-0201, while the criminal complaint was docketed as OMB-VIS-CRIM-98-0286. The Ombudsman jointly tried the two cases. Enemecio alleged that Bernante had caused the spray-painting of obscene and unprintable words against her on the walls of the CSCST Carmen Campus. Enemecio claimed that Bernante also shouted defamatory words against her while she was inside the school premises. Enemecio further asserted that Bernante made it appear in his leave application that he was on forced leave from 15 May 1996 to 21 May 1996 and on vacation leave from 22 May 1996 to 31 May 1996. In truth, Bernante was serving a 20-day prison term, from 14 May 1996 to 2 June 1996, because of his conviction of the crime of slight physical injuries in Criminal Case No. NR-1678-CR. Bernante was able to receive his salary during his incarceration since then CSCST-CFT Superintendent Andres T. Melencion approved Bernante’s application for leave. Enemecio contended that Bernante was not entitled to receive salary for that period because of his “falsified leave applications.”[5] For his part, Bernante did not deny that he was in prison from 15 May 1996 to 31 May 1996. He maintained that he received his salary for that period because of his duly approved leave applications. Bernante also alleged that Enemecio filed the criminal and administrative complaints against him in retaliation for the case he filed against Enemecio’s friends, Dean Severino Romano and Bernadette Mante. Bernante denied he was behind the spray-painting of obscenities against Enemecio on the walls of the school campus.[6] On 13 January 2000, the Ombudsman rendered a decision dismissing the administrative complaint against Bernante in OMB-VIS-ADM-98-0201. The Ombudsman explained: On the issue of the alleged falsification of respondent’s application for leave by making it appear that he was on vacation when in truth and in fact he was serving a sentence for a criminal conviction, we have determined that there is no regulation restricting the purpose or use of an employee’s earned leave credits. Considering that the application for leave filed by the respondent was duly approved by the appropriate official concerned, it matters not how he utilizes his leave for it is not a requirement that the specifics or reasons for going on leave be spelled out in such application. On the issue of the spray painting of obscenities on the walls of the school, the evidence is insufficient to prove that respondent was the person responsible for such as there were no eye witnesses to such activity. The testimony of Bernadette Mante merely identifies the respondent as allegedly having a drinking session with security guard Estanislao Lavaria at around 11:00 on the night of March 29, 1998. Furthermore, witness Mante states that there are about ten (10) to twelve (12) families living inside the dormitory facing the school walls where the grafitti appeared. Despite this number, not one single person appeared to have witnessed respondent spray painting the questioned grafitti on the walls of the campus (TSN, April 19, 1999). While it may be probable that the only person or persons who could have had the opportunity to spray paint the said grafitti on the night of March 29, 1998 or in the early morning hours of March 30, 1998 were the respondent and security guard Lavaria, this is not sufficient justification to directly blame them for such event. Regarding the complainant’s allegation that on March 10 and 25, 1998, the respondent defamed the former by uttering slanderous words, it appears that only the incident occurring on March 10, 1998 was corroborated by the testimony of witness Delfin Buot (TSN, April 7, 1998). Witness Buot testified that he was about (3) meters from the respondent when the latter shouted the words ‘buricat’ (whore) ‘putang ina’ and ‘maot’ (snob) to the complainant. However, the circumstances of the utterance, particularly the time and the relation of the protagonists involved, leads us to conclude that the same is removed from the official functions of the respondent as a professor of the school. Stated otherwise, the act of the respondent was not in relation to his official functions. In the case of Palma vs. Fortich, et al., 147 SCRA 397, the Supreme Court ruled that: In administrative actions against municipal officers, the Supreme Court in Festijo v. Crisologo, et al. (17 SCRA 868, 869 [1966]), classified the grounds for suspension under two categories, namely: (1) those related to the discharge of the functions of the officer concerned (neglect of duty, oppression, corruption or other forms of maladministration of office and (2) those not so connected with said functions. Under the second category, when the crime involving moral turpitude is not linked with the performance of official duties, conviction by final judgment is required as a condition precedent to administrative action. Therefore, inasmuch as the oral defamation charge is now pending before the Municipal Circuit Trial Court in Catmon, Cebu under Criminal Case No. 30006-CR, the matter of respondent’s administrative culpability is still premature to be determined herein.[7] On the same date, the Ombudsman dismissed the criminal complaint against Bernante in OMB-VIS-CRIM-98-0286[8] finding no probable cause to indict Bernante for falsification of public document. The Ombudsman explained thus: It is well established by documentary evidence that the applications for leave filed by the respondent for the period from May 15 to 31, 1996 were duly approved by the head of office, which in this case is Mr. Andres T. Melencion, Vocational School Superintendent. All these leaves were with pay indicating that the respondent availed of his leave credits which are undeniably due to him by law. It matters not how the respondent utilizes the days where he is on leave, be they enjoyed as a vacation or, in this case, incarceration for a crime. There appears to be no regulation or law against the utilization of leave credits for purposes other than recreation. As such, there could be no falsification where nothing is being misrepresented in the official leave forms which the respondent prepared and submitted.[9] The Ombudsman denied Enemecio’s motion to reconsider the dismissal of the criminal complaint in its Order of 28 February 2000. In denying the motion, the Ombudsman stated: We find the complainant’s arguments untenable. There is no dispute that the leave forms are public documents. What is in dispute is whether or not the failure of the respondent to indicate therein the reasons for his leave amounts to a crime of falsification. It is submitted that it does not, for the simple reason that the form itself does not require stating the reasons for going on leave. An employee simply indicates through check marks the nature of the leave he is availing of, which in the case at bar, respondent chose to avail of his forced and vacation leave credits. Nevertheless, the omission does not affect the validity of its approval. What is indicated in the leave forms is only the need to specify the whereabouts of the employee who goes on leave. However, it is not a requirement that specifics must be provided. In any case the omission to state the location of a vacationing employee is not a condition sine-qua-non for its approval. To sum it up, there is no falsification of leave forms where there is no requirement for the indication of reasons for going on leave. Regardless of such a requirement, the need to indicate the whereabouts of a vacationing employee is not a necessity for its approval.[10] Enemecio filed a special civil action for certiorari before the Court of Appeals, assailing the resolutions which dismissed the criminal complaint and denied the motion for reconsideration in OMB-VIS-CRIM-98-0286. Applying the ruling in Fabian v. Desierto,[11] the appellate court dismissed Enemecio’s petition for having been filed out of time. The appellate court also stated that the proper remedy available to Enemecio was a petition for review under Rule 43 and not a petition for certiorari under Rule 65. In her motion for reconsideration, Enemecio argued that the appellate court should not have relied on Fabian. Enemecio contended that Fabian declared void only Section 27 of Republic Act No. 6770 (“RA 6770”) and Section 7, Rule III of Administrative Order No. 07 (“AO No. 07”) insofar as they provide for appeals in administrative disciplinary cases from the Ombudsman to the Supreme Court. Enemecio asserted that the other provisions of Section 27 of RA 6770 and Section 7 of AO No. 07, including the “final and unappealable character” of orders, resolutions or decisions exonerating a respondent from any criminal liability, still stand. Enemecio stated that she filed the petition for certiorari under Rule 65 with the Court of Appeals because she considered Bernante’s absolution from the administrative complaint in OMB-VIS-ADM-98-0201 as already final and unappealable. As there was no adequate remedy of appeal, Enemecio claimed that her only recourse was a petition for certiorari before the appellate court under Rule 65.[12] The Court of Appeals denied Enemecio’s motion for reconsideration in its Order of 7 December 2000. Hence, this petition for review. The Ruling of the Court of Appeals In dismissing the petition, the Court of Appeals stated that in Fabian, the Supreme Court held that appeals in administrative disciplinary cases from the Ombudsman to the Court of Appeals must be brought by petition for review under Rule 43. The appellate court stated that a petition for review must be filed within 15 days from notice of the assailed final order or resolution. Since Enemecio received on 22 March 2000 a copy of the Ombudsman’s Order denying her motion for reconsideration, the appellate court ruled that Enemecio had only until 6 April 2000 to file a petition for review. Enemecio filed her petition only on 8 May 2000. The appellate court further stated that Enemecio’s allegation in the petition that there is no appeal or other plain, speedy or adequate remedy in the ordinary course of law is false. The proper remedy available to Enemecio is a petition for review.[13] In denying Enemecio’s motion for reconsideration, the Court of Appeals clarified that Fabian does not apply to Enemecio’s petition assailing the dismissal of the criminal complaint against Bernante. The appellate court stated that what Fabian declared void was Section 27 of RA 6770, which authorized appeals to the Supreme Court from decisions of the Ombudsman in administrative disciplinary cases. Under the Fabian ruling, the appellant should take such appeal in administrative disciplinary cases to the Court of Appeals under Rule 43. The Court of Appeals added that it follows that the power to review decisions of the Ombudsman in criminal cases is retained by the Supreme Court under Section 14 of RA 6770. Thus, the appellate court dismissed the petition for lack of jurisdiction.[14] The Issues Enemecio contends that: 1. The Court of Appeals gravely abused its discretion in refusing to assume jurisdiction over the petition. 2. The Court of Appeals gravely erred in failing to appreciate that a petition for certiorari under Rule 65 was the appropriate course of action considering the circumstances obtaining. 3. The Court of Appeals gravely erred in dismissing the petition for certiorari under Rule 65 filed by petitioner by misinterpreting the ruling of the Supreme Court in Fabian vs. Desierto.[15] The issues boil down to whether a petition for certiorari under Rule 65 filed before the Court of Appeals is the proper remedy to question the dismissal of a criminal complaint filed with the Ombudsman. The Court’s Ruling We resolve to dismiss this petition. Enemecio filed before the Court of Appeals a petition for certiorari under Rule 65[16] questioning the Ombudsman’s Resolution dated 13 January 2000 and Order dated 28 February 2000 dismissing the criminal[17] Thus, the Prefatory statement of Enemecio’s Petition in the Court of Appeals states: case against Bernante. This is a Petition for Certiorari under Rule 65 of the Rules of Court seeking to nullify the Resolution dated 13 January 2000 and the Order dated 28 February 2000 both issued by the Public Respondent in the Ombudsman Case docketed as OMB-VIS-CRIM-98-0201 and entitled, “Agustina Enemecio vs. Servando Bernante, Asst. Professor IV, CSCST- College of Fisheries Technology, Carmen, Cebu”, for being a manifest and grave abuse of discretion amounting to excess of jurisdiction. The Resolution dated 13 January 2000 dismissed the criminal complaint for malversation and falsification of public documents filed against herein Private Respondent while the Order dated 28 February 2000 denied herein Petitioner’s Motion for Reconsideration. Certified machine copies of the aforesaid Resolution and Order are hereto appended as Annexes “A” and “B” respectively. (Emphasis supplied) The appellate court dismissed Enemecio’s petition and denied her motion for reconsideration. Enemecio now comes to this Court via this petition for review, claiming that “what was involved in the petition before the appellate court was the administrative, not the criminal case.”[18] Enemecio thus stresses that “there is no reason for the Court of Appeals to say that the petition concerned the criminal case.”[19] We cannot countenance the sudden and complete turnabout of Enemecio and her counsel, Atty. Terence L. Fernandez. Atty. Fernandez’s conduct has fallen far too short of the honesty required of every member of the Bar. It is clear from the records that Atty. Fernandez filed with the Court of Appeals a certiorari petition assailing the Ombudsman’s Resolution and Order dismissing the criminal case, not the administrative case against Bernante. For this reason, the appellate court in its 7 December 2000 Resolution rectified itself and stated that Fabian does not apply to Enemecio’s petition as the Fabian ruling applies only to administrative disciplinary actions. Atty. Fernandez’s attempt to mislead this Court in a last ditch effort to secure a decision favorable to his client’s cause does not escape our attention. As an officer of the court, Atty. Fernandez is duty bound to uphold the dignity and authority of the court to which he owes fidelity according to the oath he has taken as attorney, and not to promote distrust in the administration of justice. He must always bear in mind that good faith and honorable dealings with judicial tribunals are primary obligations of an attorney. He must always remember to deal with courts with truthfulness and not to trifle with court proceedings.[20] For this, Atty. Fernandez should be admonished not to commit similar acts again. Even if we consider Enemecio’s petition before the Court of Appeals as questioning the dismissal of the administrative case against Bernante, the action must also fail. Appeals from decisions of the Ombudsman in administrative disciplinary actions should be brought to the Court of Appeals under Rule 43.[21] The only provision affected by the Fabian ruling is the designation of the Court of Appeals as the proper forum and of Rule 43 as the proper mode of appeal. All other matters in Section 27 of RA 6770, including the finality or non-finality of decisions of the Ombudsman, remain valid.[22] In any event, jurisprudence now holds that where the findings of the Ombudsman on the existence of probable cause in criminal cases is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the aggrieved party may file a petition for certiorari with the Supreme Court under Rule 65.[23]certiorari petition before the Court of Appeals, instead of the Supreme Court, she availed of a wrong remedy in the wrong forum. Hence, the instant petition should be dismissed outright. Since Enemecio filed a Even if we consider the substance of the case, we find no grave abuse of discretion in the Ombudsman’s determination of whether there exists a prima facie case against Bernante. Enemecio assails the dismissal of the criminal charges against Bernante for two reasons: (1) that she was able to prove before the Ombudsman the charge for malversation against Bernante; and (2) that Bernante himself admitted that he signed and filed the subject leave applications. Enemecio asserts that she was able to present before the Ombudsman the payroll of the CSCST-CFT employees covering the period from 16 May 1996 to 31 May 1996 signed by Bernante. Enemecio asserts that this document proved that Bernante “actually received and was paid the amount of P3,185.08 as a result of his falsified letter-requests and leave applications.” According to Enemecio, these constituted acts of malversation. Enemecio’s contentions do not deserve serious consideration. Under Article 171, paragraph 4 of the Revised Penal Code, the elements of falsification of public documents through an untruthful narration of facts are: (a) the offender makes in a document untruthful statements in a narration of facts; (b) the offender has a legal obligation to disclose the truth of the facts narrated; (c) the facts narrated by the offender are absolutely false; and (d) the perversion of truth in the narration of facts was made with the wrongful intent to injure a third person.[24] As the Ombudsman correctly pointed out, Enemecio failed to point to any law imposing upon Bernante the legal obligation to disclose where he was going to spend his leave of absence. “Legal obligation” means that there is a law requiring the disclosure of the truth of the facts narrated.[25] Bernante may not be convicted of the crime of falsification of public document by making false statements in a narration of facts absent any legal obligation to disclose where he would spend his vacation leave and forced leave. In PCGG v. Desierto,[26] the Court ruled that the Ombudsman has the discretion to determine whether a criminal case, given the facts and circumstances, should be filed or not. The Ombudsman may dismiss the complaint forthwith if he finds it insufficient in form or substance. On the other hand, he may continue with the inquiry if he finds otherwise. If, in the Ombudsman’s view, the complaint is sufficient in form and substance, he may proceed with the investigation. In fact, the Ombudsman has the power to dismiss a complaint outright without going through a preliminary investigation.[27] Our evaluation of the records leads us to the conclusion that the Ombudsman has carefully studied the merits of the criminal complaint. Where the Ombudsman has thoroughly examined the merits of the complaint, it would not be right to subject the private respondent to an unnecessary and prolonged anguish.[28] WHEREFORE, the petition is DENIED for lack of merit. No costs. SO ORDERED. Davide, Jr., C.J., (Chairman), Panganiban, Ynares-Santiago, and Azcuna, JJ., concur. [1] Under Rule 45 of the Rules of Court. [2] Penned by Justice Marina L. Buzon, with Associate Justices Ramon A. Barcelona and Edgardo P. Cruz concurring. [3] Rollo, pp. 60-61. [4] Ibid., p. 11. [5] Ibid., pp. 64, 12-15. [6] Ibid., p. 64. [7] Rollo, pp. 65-66. [8] CA Rollo, p. 26. [9] Ibid., pp. 25-26. [10] Ibid., p. 27. [11] 356 Phil. 787 (1998). [12] Rollo, pp. 57-58. [13] CA Rollo, pp. 55-56. [14] Ibid., pp. 73-74. [15] Rollo, p. 19. [16] 1997 Rules of Civil Procedure. [17] CA Rollo, pp. 5-20, 25-28. [18] Rollo, p. 11. [19] Ibid., pp. 11, 20-21, 64-66, 77-78. [20] PAMARAN, TRIAL PRACTICE IN PHILIPPINE COURT 6 (3rd Ed., 1986). [21] 1997 Rules of Civil Procedure. [22] Barata v. Abalos, Jr., 411 Phil. 204 (2001); Lapid v. Court of Appeals, G.R. No. 142261, 29 June 2000, 334 SCRA 738. [23] Baylon v. Office of the Ombudsman, G.R. No. 142738, 14 December 2001, 372 SCRA 437; Nava v. Commission on Audit, 419 Phil. 544 (2001); Tirol, Jr. v. Del Rosario, 376 Phil. 115 (1999). [24] Relucio v. Civil Service Commission, G.R. No. 147182, 21 November 2002; Lecaroz v. Sandiganbayan, 364 Phil. 890 (1999). [25] REYES, THE REVISED PENAL CODE, BOOK TWO 210 (15th Ed., Rev. 2001). [26] G.R. No. 140358, 8 December 2000, 347 SCRA 561. See also Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, 418 Phil. 715 (2001); Yu v. Sandiganbayan, G.R. No. 128466, 31 May 2001, 358 SCRA 353. [27] Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, 415 Phil. 135 (2001); Mamburao, Inc. v. Office of the Ombudsman, G.R. Nos. 139141-42, 15 November 2000, 344 SCRA 805; Knecht v. Desierto, 353 Phil. 494 (1998). [28] PCGG v. Desierto, G.R. No. 140232, 19 January 2001, 349 SCRA 767. |
