FIRST DIVISION
[G.R. No. 248354. September 14, 2021.]
BENJELYN L. CACHO, petitioner,vs. OFFICE OF THE DEPUTY OMBUDSMAN FOR LUZON, respondent.
NOTICE
Sirs/Mesdames:
Please take notice that the Court, First Division, issued a Resolution dated September 14, 2021which reads as follows:
"G.R. No. 248354 — BENJELYN L. CACHO, petitioner,versus OFFICE OFTHE DEPUTY OMBUDSMAN FORLUZON, respondent.
Before the Court is a Petition for Review on Certiorari1 (Petition) under Rule of the Rules of Court (Rules) assailing the Decision 2 dated November 29, 2018 (assailed Decision) and Resolution 3 dated July 12, 2019 (assailed Resolution) of the Court of Appeals 4 (CA), in CA-G.R. SP Nos. 149679 & 151013. The assailed Decision and Resolution affirmed with modification the Decision dated June 30, 2016 (Decision) and Order dated January 9, 2017 (Order) of respondent, the Office of the Deputy Ombudsman for Luzon (Ombudsman) in OMB Case No. L-A-15-0323 which ordered the dismissal of petitioner Benjelyn Limbag-Cacho (Cacho) from service.
The Petition is partly meritorious.
One of the grounds cited by the CA in denying the petition which Cacho filed before it is its impropriety. According to the CA, Cacho erred in raising a "certiorariable error" against the Ombudsman in a petition filed under Rule 43 of the Rules, which remedies errors of judgment rather than errors of jurisdiction. 5 HTcADC
Indeed, the lone, issue raised by Cacho before the CA is "[whether or not the Ombudsman committed a certiorariable error in the assailed Decision and Order absent substantial evidence to warrant the dismissal of Cacho from government service.]" 6 Although Cacho referred to a certiorariable error on the part of the Ombudsman, it is also equally clear that she was assailing the Ombudsman Decision and Order for lack of substantial evidence, which is an error of judgment on the part of the Ombudsman and a proper subject of an appeal under Rule 43. The CA, thus, erred in concluding that the petition before it is one for certiorari merely on the basis of the phrase "certiorariable error."
Even so, while a petition for certiorari is dismissible for being a wrong remedy, the Court has recognized exceptions to this rule, namely: (a) when public welfare and the advancement of public policy dictates; (b) when the broader interest of justice so requires; (c) when the writs issued are null and void; or (d) when the questioned order amounts to an oppressive exercise of judicial authority. 7 Thus, even if the Court is to adopt the CA's conclusion and treat Cacho's petition before the CA as one for certiorari, the Court still finds it judicious to excuse the procedural infirmity on account of the merits of the case and in the interest of justice.
Now on the substantive issues.
The CA anchored Cacho's liability to her membership in the Bids and Awards Committee (BAC) of the Municipality of Palauig, Zambales. The CA found her liable for Gross Neglect of Duty, Conduct Prejudicial to the Best Interest of the Service, and Simple Misconduct when she and the other members of the BAC failed to ensure compliance with the Implementing Rules of Procedure (IRR) of Republic Act No. (R.A.) 9184, otherwise known as the "Government Procurement Reform Act," in relation to the municipality's procurement of office supplies from Tabing Daan Mart in 2006. Particularly, Cacho was found administratively liable for Conduct Prejudicial to the Best Interest of Service and Gross Neglect of Duty when the BAC failed to post the request for price quotations for the procurement in violation of Section 21.2.4 8 of the 2003 IRR of R.A. 9184, and for Simple Misconduct when the BAC failed to ensure the submission of sworn affidavits on disclosure of relations from all prospective bidders in violation of Section 47 9 of the IRR of R.A. 9184.
Misconduct refers to a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer, 10 whereas neglect of duty refers to the failure of an employee to give one's attention to a task expected of him or her, 11 signifying a disregard of a duty resulting from carelessness or indifference. 12
Neglect of duty becomes gross when it is characterized by the want of even slight care, or by acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to the consequences, insofar as other persons may be affected. 13 There is an omission of that care that even inattentive and thoughtless persons never fail to give to their own property, and denotes a flagrant and culpable refusal or unwillingness of a person to perform a duty. 14 In gross neglect of duty, much like in other grave offenses, bad faith must attend the act complained of. 15 Bad faith connotes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud. 16
Cacho asserts that it was not her responsibility to disclose the relationship between Teresita Lising (Lising), the proprietor of TabingDaan Mart, and Corazon C. Reyes (Reyes), the BAC Vice Chairman and sister of Lising, especially since she only came to know about their relationship when the complaint was filed against them. 17 Additionally, she argues that it was erroneous to implicate her in the transaction when most of the documents presented by the Ombudsman to establish her liability only included her name but not her signature. 18 The Ombudsman, therefore, failed to establish by substantial evidence that she connived with the BAC members in the procurement of office supplies from Tabing Daan Mart despite the fact that the latter should have been disqualified by reason of the relationship of Lising and Reyes. 19
Indeed, there is dearth of evidence showing that the BAC members conspired or colluded with each other, with the invited bidders, or with Lising and Reyes, to manipulate the procurement to favor Tabing Daan Mart or Lising. There is also no evidence that the BAC members, including Cacho, benefited from the transactions. Be that as it may, it cannot be denied that the BAC members failed to ensure compliance with the requirements of the 2003 IRR of R.A. 9184. Their omission, to the mind of the Court, amounts to neglect of duty rather than misconduct. Considering the absence of evidence of corruption or bad faith on the part of Cacho, she cannot be held guilty of a grave offense or of Gross Neglect of Duty. aScITE
In Office of the Ombudsman v. Tongson, 20 the public officers were found guilty of simple neglect of duty for failing to use reasonable diligence in the performance of officially-designated duties when they failed to comply with the Implementing Rules and Regulations of Presidential Decree No. 1594.
In Yamson v. Castro, 21 the members of the Pre-Bidding and Awards Committee-B (PBAC-B) were only found liable for simple neglect of duty for their failure to comply with the procedure for competitive bidding, for misdeclaration of a failure of competitive bidding, and for the subsequent resort to a negotiated procurement. The Court therein declared that there is no evidence on record that will convincingly establish that the members of the PBAC-B, conspired or colluded with each other or with the invited well drillers, or that they schemed to rig the procurement process to favor one bidder. As in this case, the Court therein also found no evidence showing that they benefited from the procurement of the project.
In Jomadiao v. Arboleda, 22 the BAC members were found liable for simple neglect of duty for their failure to fully comply with the publication requirement under R.A. 9184. Although the Invitation to Apply for Eligibility and to Bid was published, it was not done in a newspaper of general nationwide circulation. Similarly, there was no evidence that the BAC members colluded with the head of the procuring entity, with each other, or the bidders in ensuring that the project will be awarded to the lone bidder.
In Salumbides, Jr. v. Office of the Ombudsman, 23 the Court held that the public officers fell short of the reasonable diligence because they failed to ascertain he legal requirements and fiscal soundness of the projects before approving the same, especially without competitive bidding. Thus, respondents in that case failed to disburse funds in compliance with the requirements of the law.
It is likewise worth mentioning that the Court in Corazon C.Reyes and Vilma C. Abdon v. Field Investigation Office II, represented by Atty. Vic T. Escalante, 24 the Court also modified the Ombudsman Decision and Resolution, and reduced the liability of Corazon C. Reyes and Vilma C. Abdon, another BAC member, to Simple Neglect of Duty with a penalty of six months suspension. As in the present case, the Court therein found that the elements of bad faith and corruption were absent and, thus, Reyes and Abdon could not be held administratively liable for a grave offense. As such, they were only found liable for simple neglect of duty for their failure to strictly comply with the procurement process.
As in the foregoing cases, Cacho, as member of the BAC, is only liable for Simple neglect of Duty for the BAC's failure to strictly comply with the procurement procedure under the 2003 IRR of R.A. 9184. Pursuant to Section 46, Rule 10 of the Revised Uniform Rules on Administrative Cases in the Civil Service, 25 and considering that this is Cacho's first offense after several years in public service, the proper penalty is six (6) months suspension from office.
WHEREFORE, the Petition is PARTLY GRANTED. The Decision dated November 29, 2018 and Resolution dated July 12, 2019 in CA-G.R. SP Nos. 149679 & 151013 are MODIFIED, finding petitioner Benjelyn Limbag-Cacho GUILTY of Simple Neglect of Duty and meting her the penalty of six (6) months suspension.
SO ORDERED."
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
by:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1.Rollo, pp. 10-20.
2.Id. at 33-57. Penned by Associate Justice Pablito A. Perez and concurred in by Associate Justices Mariflor P. Punzalan Castillo and Danton Q. Bueser.
3.Id. at 22-27.
4. Seventh Division and Former Seventh Division, respectively.
5.Rollo, p. 55.
6.Id. at 45.
7.Tanenglian v. Lorenzo, G.R. No. 173415, March 28, 2008, 550 SCRA 348, 367.
8.SECTION 21.Advertising and Contents of the Invitation to Bid. —
xxx xxx xxx
21.2. Advertising and Posting of the Invitation to Apply for Eligibility and to Bid
xxx xxx xxx
21.2.4. For alternative methods of procurement as provided for in Rule XVI of this IRR-A, advertisement in a newspaper as required in this Section may be dispensed with: Provided, however, That posting shall be made in the website of the procuring entity concerned, if available, the G-EPS, and posted at any conspicuous place reserved for this purpose in the premises of the procuring entity concerned, as certified by the head of the BAC Secretariat of the procuring entity concerned, during the same period as above.
9.SECTION 47. Disclosure of Relations. —
In addition to the proposed contents of the Invitation to Apply for Eligibility and to Bid as mentioned under Section 21 of this IRR-A, all bids shall be accompanied by a sworn affidavit of the bidder that it is not related to the head of the procuring entity by consanguinity or affinity up to the third civil degree. Failure to comply with the aforementioned provision shall be a ground for the automatic disqualification of the bid in consonance with Section 30 of this IRR-A. For this reason, relation to the head of the procuring entity within the third civil degree of consanguinity or affinity shall automatically disqualify the bidder from participating in the procurement of contracts of the procuring entity. On the part of the procuring entity, this provision shall also apply to any of its officers or employees having direct access to information that may substantially affect the result of the bidding, such as, but not limited to, the members of the BAC, the members of the TWG, the BAC Secretariat, the members of the PMO, and the designers of the project. On the part of the bidder, this provision shall apply to the following persons:
a) If the bidder is an individual or a sole proprietorship, to the bidder himself;
xxx xxx xxx
10.Office of the Ombudsman v. Rojas, G.R. Nos. 209274 & 209296-97, July 24, 2019, 910 SCRA 163, 175.
11.Office of the Court Administrator v. Mendoza, A.M. No. P-14-3257, July 22, 2015, 763 SCRA 310, 320, citing Clemente v. Bautista, A.M. No. P-10-2879, June 3, 2013, 697 SCRA 10.
12.Andaya v. Field Investigation Office of the Office of the Ombudsman, G.R. No. 237837, June 10, 2019, 904 SCRA 100, 112.
13.Securities and Exchange Commission v. Commission on Audit, G.R. No. 252198, April 27, 2021, accessed at <https://sc.judiciary.gov.ph/19520>.
14.Id.
15.Yamson v. Castro, G.R. Nos. 194763-64, July 20, 2016, 797 SCRA 592, 627.
16.Id. at 627.
17.Rollo, pp. 15-16.
18.Id. at 16.
19.Id.
20. G.R. No. 169029, August 22, 2006, 499 SCRA 567.
21.Supra note 15.
22. G.R. No. 230322, February 19, 2020, accessed at <https://sc.judiciary.gov.ph/12362>.
23. 633 Phil. 325 (2010).
24. G.R. No. 248274, March 3, 2021 (Unsigned Resolution), accessed at <https://sc.judiciary.gov.ph/21056>.
25. CSC Resolution No. 1101502, promulgated on November 8, 2011.