Office of the Ombudsman v. Millado

FIRST DIVISION

[G.R. No. 221506. June 16, 2021.]

OFFICE OF THE OMBUDSMAN, petitioner,vs. LT. COL. FELICISIMO C. MILLADO, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution dated June 16, 2021 which reads as follows:

"G.R. No. 221506 (Office of the Ombudsman, Petitioner, v. Lt. Col. Felicisimo C. Millado, Respondent.) — This is a Petition for Review 1 on Certiorari to reverse and set aside the Decision2 dated 20 March 2015 of the Court of Appeals (CA) in CA-G.R. SP No. 127593, modifying the Decision3 dated 27 February 2009 of petitioner Office of the Ombudsman (Ombudsman) in OMB-P-A-06-0106-A. The CA found respondent Lt. Col. Ferdinand C. Millado (Millado) guilty of Simple Misconduct and Conduct Prejudicial to the Best Interest of the Service (instead of Grave Misconduct and Dishonesty) and imposed upon him the penalty of suspension for one (1) year and the accessory penalty of disqualification from promotion corresponding to the one-year period of suspension.

Antecedents

In April 2000, the Philippine Marine Corps (PMC) released funds in the amount of Php36,768,028.95 (PMC Fund) for the payment of Combat Clothing (CC) Allowance and Individual Equipment (IE) Allowance to qualified PMC personnel for the preceding calendar year (CY) 1999.

The release of the PMC Funds was supported by the following documents:

(a) Disbursement Vouchers approved by then Colonel Renato P. Miranda (Miranda), PMC Chief of Staff;

(b) 19 payrolls allegedly signed by the recipient PMC enlisted personnel;

(c) Special Order Nos. 11 and 21, which specified the names of the enlisted marine personnel who were entitled to the CC and IE allowances;

(d) Roster of Troops signed by Major Adelo B. Jandayan (Jandayan), then Assistant Chief of Staff for Personnel, and Lt. Col. Jeson Cabatbat (Cabatbat), then PMC Adjutant;

(e) Certification made by Cabatbat that the payroll was true and correct (subject payroll);

(f) Certification signed by Millado stating that no payment had been made to individual claimants appearing in the payroll on file;

(g) Approval of Miranda stating that the funds were payable from Philippine Navy Appropriation; and

(h) Certification signed by Captain Edmundo D. Yurong (Yurong), then PMC Supply Officer, stating that no available clothing items/requirements were issued to the marine enlisted personnel whose names are indicated on the payroll. 4

Accordingly, 19 checks of differing amounts 5 were issued and signed by respondent Millado (as PMC Commanding Officer and Disbursing Officer) and PMC Commandant BGen. Percival Subala (BGen. Subala), with Millado as payee. After encashing said checks, Millado turned over the proceeds to Jandayan with the approval of Miranda and Giokson Dammang, then Comptroller for PMC.

A subsequent random audit, however, allegedly yielded the following findings: (1) a significant number of PMC enlisted personnel named in the liquidation payrolls failed to receive either their CC or IE allowances; (2) their corresponding signatures appearing thereon were forged; (3) representatives who signed for, or received, said allowances on behalf of certain enlisted personnel were never authorized; (4) the liquidation payrolls did not follow the normal accounting procedure of the Armed Forces of the Philippines (AFP) for disbursement/distribution of funds; (5) the disbursement was not approved by the Commandant in violation of Sections 168 and 183, Volume 1 of the Government Accounting and Auditing Manual (GAMA); and (6) contrary to the supporting Certifications, PMC enlisted personnel had already received clothing allowance in the amount of Php200.00 integrated into their monthly payroll. 6

As a result, an Affidavit-Complaint 7 was filed against Millado and the other concerned PMC officials (collectively, respondents) for malversation through falsification of public documents, dishonesty, violation of Commission on Audit (COA) rules and regulations, and violation of Section 3 (e) of Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act for causing undue injury to the Government. The criminal aspect of the complaint was docketed as OMB-P-C-06-0111-A, while the administrative aspect was docketed as OMB-P-A-06-0106-A. 8

All respondents maintained that their respective acts of signing the checks, disbursement vouchers, and other supporting documents, were ministerial as the conditions and requirements for the same were met and complied with. They also claimed that the complaint failed to show conspiracy between and among respondents; the mere act of signing the questioned documents is insufficient to prove that there was conspiracy. 9

Ruling of the Ombudsman

In a Decision10 dated 27 February 2009 in OMB-P-A-06-0106-A, the Ombudsman found Millado, Miranda, Cabatbat, Jandayan, and Yurong guilty of Grave Misconduct and Dishonesty pursuant to Section 19, in relation to Section 25, of Republic Act No. 6779 (RA 6779), otherwise known as The Ombudsman Act of 1999. They were meted the penalty of dismissal from the service, with forfeiture of all benefits, except accrued leave benefits, if any, with prejudice to re-employment in any branch or service of the government, including government-owned and controlled corporations.

According to the Ombudsman, the fact that the entitled enlisted marine personnel did not receive their respective CC and IE allowances, despite the existence of evidence that the funds therefor have been released, signifies that there was misappropriation. 11 This misappropriation was committed through the falsification of the payrolls to show receipt of the CC and IE allowances by entitled marine personnel when said personnel did not, in fact, receive such allowances. This non-receipt was proved by the affidavits executed by these marine personnel who attested to this effect. 12

The Ombudsman also noted that, under the ordinary course of accounting procedure in the AFP, the PMC funds should have been distributed to the respective disbursing officers of the different PMC units in the country who will, in turn, be responsible for distributing the funds (in the amount of Php14,715.05/personnel) to the soldiers assigned to their respective units. Instead, Millado, as disbursing officer, unlawfully entrusted said PMC funds to Jandayan who, not being himself a disbursing officer, had no authority to receive the same. It was therefore of no moment that Millado's act of entrusting the PMC funds to Jandayan was made upon the instructions and approval of his superior officer, Miranda.

Thus, the Ombudsman concluded that respondents' collection, receipt, appropriation, and failure to distribute the subject PMC funds to the intended recipients constitute unreasonable, unfair, and oppressive acts tantamount to dishonesty and grave misconduct punishable by dismissal from the service pursuant to Section 19 in relation to Section 25 13 of RA 6770. 14 It nevertheless absolved respondents BGen. Subala and Carolyn L. Bantolo, after finding that they only signed the documents pursuant to their ministerial duties as head of office and accountant, respectively:

x x x As head of office who relied on the regularity in the performance of duties of his subordinates, respondent Subala affixed his signature in the checks being the last authorized signatory thereof. In the same manner, respondent Bantolo as accountant affixed her signature in the disbursement vouchers after being satisfied that the supporting documents were complete and regular on its face. Their mere act of affixing their signatures does not show that they have a hand in the preparation of the falsified payrolls and in the fate of the P36,768,028.95 after its release from the public coffers. 15

Millado filed a motion seeking reconsideration, but this was denied in a Joint Order 16 dated 25 November 2011. Aggrieved, Millado filed a Petition for Review before the CA.

Ruling of the CA

The CA, in its Decision 17 dated 20 March 2015, modified the Ombudsman's Decision.

According to the appellate court, Millado, in transferring the proceeds of the encashed checks without showing that such transfer was allowed by law or that he secured the prior consent of the COA, violated Section 75 of the Auditing Code of the Philippines. However, this failure to follow prescribed procedure, absent evidence of ill-motive or a clear, manifest, or flagrant intention to violate the law, can only be characterized as simple misconduct. 18 His acts also constituted conduct prejudicial to the best interest of the service insofar as these tarnished the image and integrity of public service.

Similarly, the CA found no basis to hold Millado liable for dishonesty, citing lack of proof that Millado authored or actively participated in the preparation of the payrolls containing the forged signatures of the enlisted marine personnel or that he turned over the PMC funds with the intent to defraud the government. The dispositive portion of the CA's Decision reads, to wit:

We MODIFY the Decision dated 27 February 2009 of the Office of the Ombudsman in OMB-P-A-06-0106-A. We find petitioner LTC FELICISIMO MILLADO guilty of Simple Misconduct and Conduct Prejudicial to the Best Interest of the Service, and impose upon him the penalty of SUSPENSION OF ONE (1) YEAR, and the accessory penalty of DISQUALIFICATION FROM PROMOTION corresponding to the one year period of suspension.

IT IS SO ORDERED. 19

Both Millado and the Office of the Solicitor General (OSG), as counsel for the Ombudsman, filed motions 20 for reconsideration of the above Decision but these were denied by the CA in a Resolution 21 dated 06 November 2015.

Hence, the present recourse by the OSG.

On 29 February 2019, this Court issued a Resolution 22 requiring Millado to file his Comment to the petition. Accordingly, Millado filed his Comment 23 dated 03 May 2016. On 21 September 2016, we received the OSG's Reply 24 pursuant to our Resolution 25 dated 13 July 2016. After considering the allegations, issues, and arguments adduced in the pleadings filed by the parties, this Court, on 05 June 2017, resolved to give due course to the petition and required the submission of memoranda.

Millado, in a Manifestation and Motion 26 dated 01 December 2020, informed this Court of the Decision 27 rendered by the Sandiganbayan on 09 October 2020 in Criminal Case Nos. SB-15-CRM-0082 to 83 acquitting Millado, Miranda, and Jandayan of the charges filed by the Ombudsman for violation of Section 3 (e) of RA 3019 and Malversation through Falsification under Article 217, in relation to Article 171 of the Revised Penal Code.

Issue

The Court now resolves whether the CA erred in modifying the Ombudsman's Decision in OMB-P-A-06-0106-A finding Millado guilty of only Simple Misconduct and Conduct Prejudicial to the Best Interest of the Service.

Ruling of the Court

At the outset, the Court notes Millado's manifestation regarding the dismissal of the criminal charges filed against them. Suffice to say, however, that the dismissal of the criminal case does not necessarily warrant the dismissal of an administrative case arising from the same set of facts. Considering the difference in quantum of evidence, as well as the procedure followed and the sanctions imposed in criminal and administrative proceedings, the findings and conclusions in one should not necessarily be binding on the other. 28

The following facts are not disputed: that Millado encashed 19 checks representing the PMC Funds and entrusted the proceeds to Jandayan and Dammang in good faith and upon his superior officer's (Miranda) instructions. 29 The issue left for this Court to resolve is whether Millado's acts constitute grave misconduct and dishonesty or, as found by the CA, simple misconduct and conduct prejudicial to the best interest of the service.

We agree with the CA.

Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer. It is intentional wrongdoing or deliberate violation of a rule of law or standard of behavior. To constitute an administrative offense, the misconduct should relate to or be connected with the performance of the official functions and duties of a public officer. 30 For misconduct to be considered grave, there must be clear evidence of corruption, a clear intent to violate the law or flagrantly disregard an established rule. 31

In Office of the Ombudsman v. Faller, 32 We held:

x x x The misconduct is considered as grave if it involves additional elements such as corruption or willful intent to violate the law or to disregard established rules, which must be proven by substantial evidence; otherwise, the misconduct is only simple. Corruption, as an element of grave misconduct, consists in the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others. [Emphasis removed]

Dishonesty, on the other hand, refers to a person's disposition to lie, cheat, deceive or defraud; untrustworthiness; lack of integrity; lack of honesty, probity, or integrity in principle; and lack of fairness and straightforwardness; disposition to defraud, deceive or betray. 33

The CA was correct that Millado should not be held administratively liable for grave misconduct and/or dishonesty.

While Millado violated established and definite rules of action connected with the performance of his official duties, 34 there is no substantial evidence to prove that this violation was committed with corruption or a willful intent to violate the law so as to render him administratively liable for Grave Misconduct. Notably, the Ombudsman's Decision does not point to any circumstance showing a corrupt motive on Millado's part in encashing the checks and entrusting their proceeds to Jandayan and Dammang. It, in fact, even appeared to acknowledge Millado's good faith reliance and obedience to the orders of his superior officer when it held that such reliance and obedience do not exculpate him from liability. 35

Neither were the foregoing acts indicative of a disposition to deceive or lie so as to hold Millado administratively liable for dishonesty. As correctly pointed out by the CA, the Ombudsman failed to show that Millado authored or otherwise actively participated in the preparation of the payrolls containing the alleged forged signatures of the enlisted personnel. Neither was there any proof that he intended to defraud the government. 36 Millado, for his part, denies having received any amount from the PMC Funds, which he claims have actually been utilized to purchase uniforms and equipment for PMC personnel, and which items were actually delivered to, and received by, PMC. 37

Thus, while we cannot hold Millado liable for grave misconduct and dishonestly, he should nevertheless be held liable for simple misconduct as correctly ruled by the CA. As PMC Disbursing Officer, Millado should have been more circumspect in complying with the pertinent accounting and disbursement rules.

In the same light, Millado's irregular acts, insofar as they tainted the public's perception of his office, also constitute conduct prejudicial to the best interest of the service. 38

The finding of liability for only simple misconduct against Millado gains further support when one considers his act in contrast with those of his co-accused, Miranda 39 and Jandayan, 40 both of whom were adjudged guilty of grave misconduct and dishonesty for their respective participation in the subject transaction. As found by the Court, it was "upon [Miranda's] directive alone" that the PMC Funds were ordered released to Jandayan. 41 On the other hand, aside from signing the roster of troops and disbursement vouchers, Jandayan actually received said funds, consisting of a significant amount of money, despite the fact that his position as Assistant Chief of Staff for Personnel does not entail such function. Both were unable to give sufficient justification for their respective acts.

Simple misconduct is classified as a less grave offense punishable by suspension for a period of one (1) month and one (1) day to six (6) months for the first offense, 42 while conduct prejudicial to the best interest of the service is classified as a grave offense punishable by suspension for a period of six (6) months and one (1) day to one (1) year for the first offense. 43

Under Section 55 of the Uniform Rules on Administrative Cases in the Civil Service (URACCS), 44 then applicable at the time of the commission of the infraction and the promulgation of the OMB's ruling, if the respondent is found guilty of two (2) or more charges, the penalty for the most serious charge shall be imposed and the other charges shall be considered as aggravating circumstances. Likewise, under Section 54 (c) of the same Rules, the maximum of the penalty shall be imposed where only aggravating and no mitigating circumstances are present, as in this case.

With Millado's commission of Simple Misconduct appreciated as an aggravating circumstance, and considering further the significant amount of the PMC Funds involved in this case, the Court concurs with the CA that the maximum penalty of suspension for one (1) year must be imposed upon Millado. In addition, and conformably with Section 58 (d) 45 of the same Rules, he is also meted the accessory penalty of disqualification from promotion for the entire period of the suspension.

Considering that Millado has already retired from the service, 46 we can no longer impose upon him the penalty of suspension from the service. In lieu thereof, we impose the penalty of a fine in the amount of Php100,000.00 which we find appropriate and just under the circumstances. 47 This amount is to be deducted from his retirement benefits or from whatever benefits, if any, that he is still entitled to receive after his retirement. If there is none, Millado is ordered to pay the fine directly to the PMC and within the period 48 provided under the Rules. 49

WHEREFORE, the petition is hereby DENIED. The Decision dated 20 March 2015 of the Court of Appeals in CA-G.R. SP No. 127593 finding respondent Lt. Col. Felicisimo C. Millado GUILTY of simple misconduct and conduct prejudicial to the best interest of the service is AFFIRMEDwithMODIFICATION. Since respondent Millado is already retired from the service, he is ordered to pay a FINE of One Hundred Thousand Pesos (Php100,000.00) in lieu of 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. 9-26.

2.Id. at 28-40; penned by Associate Justice Nina G. Antonio-Valenzuela and concurred in by Associate Justices Magdangal M. De Leon and Jane Aurora C. Lantion of the Eighth Division, Court of Appeals, Manila.

3.Id. at 44-51.

4.Id. at 12-13.

5.Id. at 11-12. The details of the 19 checks are as follows:

 

Date Issued	Check No.	Amount
April 19, 2000	106555-BU	PhP2,145,600.00
April 17, 2000	106547-BU	1,622,476.80
April 19, 2000	106551-BU	2,145,600.00
April 19, 2000	106558-BU	2,262,937.50
April 19, 2000	106556-BU	1,901,340.00
April 19, 2000	106553-BU	1,901,340.00
April 19, 2000	106552-BU	1,030,893.75
April 19, 2000	106550-BU	1,901,340.00
April 19, 2000	106557-BU	1,901,340.00
April 19, 2000	106554-BU	2,262,937.50
April 13, 2000	106544-BU	2,145,600.00
April 17, 2000	106546-BU	1,711,206.00
April 12, 2000	106543-BU	1,375,302.00
April 17, 2000	106548-BU	3,891,409.20
April 17, 2000	106549-BU	1,901,340.00
April 06, 2000	106533-BU	1,711,206.00
April 06, 2000	106534-BU	1,622,476.80
April 11, 2000	106541-BU	1,622,476.80
April 12, 2000	106542-BU	1,711,206.00
TOTAL		PhP36,768,028.95

6.Id. at 13-14.

7.Id. at 71-77.

8.Id. at 78-79.

9.Id. at 48.

10.Id. at 44-51; approved by Acting Ombudsman Orlando C. Casimiro on 01 June 2011.

11.Id. at 48.

12.Id. at 46.

13. These Sections provide:

Section 19. Administrative Complaints. — The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which:

(1) Are contrary to law or regulation;

(2) Are unreasonable, unfair, oppressive or discriminatory;

(3) Are inconsistent with the general course of an agency's functions, though in accordance with law;

(4) Proceed from a mistake of law or an arbitrary ascertainment of facts;

(5) Are in the exercise of discretionary powers but for an improper purpose; or

(6) Are otherwise irregular, immoral or devoid of justification.

Section 25. Penalties. —

(1) In administrative proceedings under Presidential Decree No. 807, the penalties and rules provided therein shall be applied.

(2) In other administrative proceedings, the penalty ranging from suspension without pay for one (1) year to dismissal with forfeiture of benefits or a fine ranging from Five thousand pesos (P5,000.00) to twice the amount malversed, illegally taken or lost, or both at the discretion of the Ombudsman, taking into consideration circumstances that mitigate or aggravate the liability of the officer or employee found guilty of the complaint or charges.

14.Rollo, p. 49.

15.Id.

16.Id. at 105-113; approved by Ombudsman Conchita Carpio-Morales on 18 October 2012.

17.Id. at 28-40.

18.Id. at 36.

19.Id. at 38-39.

20.Id. at 114-121.

21.Id. at 42-43.

22.Id. at 122.

23.Id. at 147-157.

24.Id. at 163-170.

25.Id. at 158.

26.Id. at 215-228.

27.Id. at 229-266; penned by Associate Justice Bernelito R. Fernandez and concurred in by Presiding Justice Amparo M. Cabotaje-Tang and Associate Justice Ronald B. Moreno of the Third Division, Sandiganbayan, Quezon City.

28.Paredes v. Court of Appeals, 555 Phil. 538 (2007), G.R. No. 169534, 30 July 2007 [Per J. Chico-Nazario]. See alsoOffice of the Court Administrator v. Sardido, 449 Phil. 619 (2003), A.M. No. MTJ-01-1370, 25 April 2003 [Per J. Carpio].

29.Rollo, p. 111.

30.Duque v. Calpo, A.M. No. P-16-3505, 22 January 2019 [Per Curiam].

31.In reTiongson, B.M. No. 2482 (Resolution), 01 April 2014 [Per J. Carpio].

32. G.R. No. 215994, 06 June 2016 [Per J. Perlas-Bernabe].

33.Supra, at note 30.

34.Largo v. Court of Appeals, 563 Phil. 293 (2007), G.R. No. 177244, 20 November 2007 [Per J. Ynares-Santiago].

35.Rollo, p. 111, Joint Order dated 25 November 2011, approved on 18 October 2012.

36.Id. at 36.

37.Id. at 108-111. Miranda appears to have raised the same defense, that is, that the funds were utilized to purchase uniforms and equipment for members of the PM.; Id. at 229-265. The Sandiganbayan also appeared to have considered this circumstance when it acquitted respondents in the criminal cases filed against them.

38.Office of the Ombudsman-Visayas v. Castro, 759 Phil. 68 (2015), G.R. No. 172637, 22 April 2015 [Per J. Brion].

39.Fact-Finding Investigation Bureau-OMB-MOLEO v. Miranda, G.R. No. 216574, 10 July 2019 [Per J. Lazaro-Javier].

40.Fact-Finding Investigation Bureau Military and Other law Enforcement Offices v. Jandayan, G.R. No. 218155, 22 September 2020 [Per J. Caguioa].

41.Supra at note 39.

42. Section 52 (B) (2), Rule IV of the Uniform Rules on Administrative Cases in the Civil Service (URACCS).

43. Section 52 (A) (20), Rule I of the URACCS.

44. CSC Resolution No. 991936 dated 14 September 1999.

45. The pertinent portion of this Section reads, to wit:

Section 58. Administrative Disabilities Inherent in Certain Penalties. —

xxx xxx xxx

d. The penalty of suspension shall carry with it disqualification from promotion corresponding to the period of suspension.

xxx xxx xxx

46.Rollo, pp. 215, 250.

47.See Office of the Court Administrator v. Galvez, 562 Phil. 332 (2007), A.M. No. MTJ-03-1472, 17 October 2007 [Per J. Garcia], where the Court found respondent judge guilty of gross neglect of judicial duty, inefficiency in the performance of official functions and gross misconduct, and ordered him to pay a fine of One Hundred Thousand Pesos (Php100,000.00); Menor v. Guillermo, 595 Phil. 10 (2008), A.M. No. P-08-2587 (Resolution), 18 December 2008 [Per J. Leonardo-de Castro] where the Court imposed the amount of Fifty Thousand Pesos (P50,000.00) as fine for respondent's administrative liability. See also Office of theCourt Administrator v. Cabrera-Faller, A.M. Nos. RTJ-11-2301, RTJ-11-2302 & 12-9-188-RTC, 16 January 2018 [Per CJ Sereno] where retired/dismissed respondent Judges were fined Eighty Thousand Pesos (P80,000.00).

48.See Section 58 (g), Rule IV of the URACCS.

49.SeeCivil Service Commission v. Arandia, G.R. No. 199549, 07 April 2014 [Per J. Brion].