THIRD DIVISION
[G.R. No. 224053. July 1, 2020.]
BERNARDO PERALTA QUIPIT, JR., PROVINCIAL ADMINISTRATOR, petitioner,vs. OFFICE OF THE OMBUDSMAN, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedJuly 1, 2020, which reads as follows:
"G.R. No. 224053 (Bernardo Peralta Quipit, Jr., Provincial Administrator,petitioner, v. Office of the Ombudsman,respondent). — This amended Petition for Review on Certiorari1 (petition) filed by petitioner Bernardo Peralta Quipit, Jr. (petitioner) seeks to modify the 29 September 2015 Decision 2 and 04 March 2016 Resolution 3 of the Court of Appeals (CA) in CA-G.R. SP No. 05810-MIN. The CA modified the 31 March 2011 Decision 4 and 19 July 2013 Order 5 of the Office of the Ombudsman for Mindanao (OMB-Min) by downgrading the offense from gross neglect to simple neglect of duty and, consequently, lowering the penalty imposed on petitioner from dismissal to three (3) months suspension without pay.
Antecedents
Petitioner is the former Provincial Administrator 6 of the Province of Davao del Sur (province) and an alternate member of the Local Bids and Awards Committee (LBAC). 7 An administrative complaint for grave misconduct, gross neglect of duty, and dishonesty was instituted against petitioner and eight (8) other individuals 8 after the Commission on Audit (COA) was informed of irregularities in the procurement of information technology supplies by the province. Allegedly, petitioner approved the payment of two (2) disbursement vouchers amounting to Php749,000.00 relative to the procurement of computers and laptops for the province. 9 However, such procurement was not included in the province's Annual Procurement Program (APP), in violation of Section (Sec.) 373 10 of Republic Act No. (RA) 7160 11 and Sec. 8 12 of COA Circular No. 92-386. 13 Furthermore, none of the two (2) bidders that qualified were bona fide and reputable suppliers. 14
Ruling of the OMB-Min
In its 31 March 2011 Decision, the OMB-Min found petitioner and four (4) others guilty of gross neglect of duty. 15 Had petitioner, as alternate member of the LBAC, only exercised due diligence, he would have discovered that the bidders, Electrotel, Inc. (Electrotel) and Netcell Marketing (Netcell), were not qualified. Thus, the purchase of information technology supplies could have been avoided. 16
Notwithstanding the finding of administrative guilt for gross negligence, the dispositive portion or fallo of the Decision dated 31 March 2011 held petitioner and the four (4) others liable for grave misconduct and gross neglect of duty:
This Office finds respondents Putong, Quipit, Tan, Guinares, and Renoy administratively liable for Gross Neglect of Duty only but not for Dishonesty and Grave Misconduct. 17
xxx xxx xxx
WITH THE FOREGOING PREMISES, this office finds substantial evidence to sanction Richard Tan Martel, Allan Cudera Putong, Abel Arquillano Guiñares, Agnes Valentin Renoy, Victoria Givero Mier, and Bernardo Peralta Quipit, Jr., liable for Grave Misconduct and Gross Neglect of Duty. [P]ursuant to Administrative Order No. 17, this Office hereby orders respondents DISMISSED from service[,] together with all the accessory penalties.
xxx xxx xxx
SO DECIDED. 18
Petitioner filed a motion for reconsideration and supplemental motion for reconsideration of said ruling. However, the OMB-Min denied the same in its 19 July 2013 Order. 19
Aggrieved, petitioner filed a Petition for Review 20 with the CA. CAIHTE
Ruling of the CA
In its 29 September 2015 Decision, 21 the CA modified the decision and order of the OMB-Min. It found petitioner liable merely for simple neglect of duty, meriting a penalty of three (3) months suspension without pay, thus:
WHEREFORE, the petition for review is hereby PARTLY GRANTED. The Decision dated 31 March 2011 and Order dated 19 July 2013[,] rendered by the Office of the Ombudsman for Mindanao in Case No. OMB-M-A-06-048-B[,] are hereby MODIFIED in that petitioner-appellant is found liable for Simple Neglect of Duty and meted the penalty of suspension of three months without pay. The incumbent Governor of Davao City (sic) is hereby ORDERED to reinstate petitioner-appellant to his original position without loss of seniority rights.
SO ORDERED. 22
The CA did not find petitioner guilty of negligence that was willful, deliberate, and intentional. However, he was found guilty of simple neglect of duty. The lower court ruled that he failed to observe due diligence in the exercise of his function as an alternate member of the LBAC by failing to ensure that the procurement was proper and in accordance with law. 23
Petitioner subsequently moved for partial reconsideration, which the CA denied in its 04 March 2016 Resolution. 24 Hence, petitioner filed a Petition for Review on Certiorari25 before the Court.
Issues
Petitioner claims that:
I —
THE HONORABLE COURT OF APPEALS, WITH ALL DUE RESPECT, ERRED GRAVELY IN MODIFYING THE OMB-MIN DECISION, INSTEAD OF DECLARING NULL AND VOID AND SETTING ASIDE THE SAID OMB-MIN DECISION AND ORDER, PURSUANT TO THE SUPREME COURT (EN BANC) PRONOUNCEMENTS IN VELARDE versus SOCIAL JUSTICE SOCIETY CITED BY THE HONORABLE COURT IN ITS DECISION.
II —
THE HONORABLE COURT OF APPEALS ERRED GRAVELY IN NOT DISMISSING THE ADMINISTRATIVE COMPLAINT AGAINST PETITIONER-APPELLANT, PURSUANT TO THE SUPREME COURT PRONOUNCEMENTS IN ROQUE V. OFFICE OF THE OMBUDSMAN CITED BY THE HONORABLE COURT IN ITS DECISION.
III —
THE HONORABLE COURT OF APPEALS COMMITTED GRAVE AND SERIOUS ERRORS OF LAW WHEN IT FOUND PETITIONER-APPELLANT ADMINISTRATIVELY LIABLE FOR SIMPLE NEGLECT OF DUTY AND IMPOSING UPON HIM THE PENALTY OF SUSPENSION OF THREE (3) MONTHS WITHOUT PAY, LACKS FACTUAL AND LEGAL BASIS.
IV —
THE HONORABLE COURT OF APPEALS, WITH DUE RESPECT, ERRED GRAVELY IN RULING THAT PETITIONER-APPELLANT IS NOT ENTITLED TO BACKWAGES, CITING BURAGADA VS. SECRETARY OF EDUCATION, CULTURE AND SPORTS, WHICH CASE IS SO DIFFERENT FROM PETITIONER-APPELLANT'S CASE AND IS THUS, INAPPLICABLE TO HIM.26
Ruling of the Court
Petitioner contends that the CA erred when, even after holding that the decision and order of the OMB-Min did not contain any finding of facts nor an explanation of the applicable law that would support said decision and order, it still failed to declare their nullity. According to petitioner, the decision and order of OMB-Min should have been set aside by the CA pursuant to the pronouncement in Velarde v. Social Justice Society27 (Velarde case) that "[d]ecisions or orders issued in careless disregard of the constitutional mandate 28 are a patent nullity and must be struck down as void." 29
Petitioner's argument holds no water, the instant case not being on all fours with the Velarde case. In Velarde, the assailed decision of the Regional Trial Court of Manila lacked two (2) essential parts of a decision or order, namely, a statement of the facts and the dispositive portion. In the instant case, however, the assailed decision and order of the OMB-Min contained all the essential parts of a decision or order, to wit: (1) a statement of the case; (2) a statement of the facts; (3) the issues or assignment of errors; (4) the court ruling; and (5) the dispositive portion. 30
In any case, while the OMB-Min may have erroneously found petitioner guilty of gross neglect of duty — there being a lack of sufficient evidence to support such finding — the same pieces of evidence on record were, nevertheless, sufficient to hold petitioner liable for simple neglect of duty. Thus, there is no cause to nullify the decision and order of the OMB-Min. DETACa
It is axiomatic that "the designation of the offense or offenses with which a person is charged in an administrative case is not controlling, and one may be found guilty of another offense where the substance of the allegations and evidence presented sufficiently proves one's guilt, as in the instant case." 31
Petitioner next raises the argument, albeit for the first time on appeal before the CA, that his right to speedy disposition of cases was violated. He alleged it took the OMB-Min seven (7) years to decide the case against him.
We do not agree. While at first glance, it would appear that the OMB-Min did take an inordinate length of time to resolve the case against petitioner, a mere mathematical reckoning of time is not sufficient. 32 In determining whether the right to speedy disposition of cases has been violated, the following factors must likewise be considered and weighed: "(1) the length of delay; (2) the reasons for the delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the delay." 33 The right is considered violated only "when the proceedings are attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured; or even without cause or justifiable motive, a long period of time is allowed to elapse without the party having [their] case tried." 34
The facts show that it was only after the case had been decided by the OMB-Min that petitioner pointed out that his right was violated. 35
This Court held in Cagang v. Sandiganbayan, Fifth Division36 that "the right to speedy disposition of cases must be timely raised. The respondent or the accused must file the appropriate motion upon the lapse of the statutory or procedural periods. Otherwise, [they are deemed] to have waived [their] right."
In a similar case, Tello v. People, 37 petitioner Raul S. Tello likewise failed to assert his right to a speedy disposition of his case. He did not take any step to accelerate the disposition of his case. He only invoked his right to a speedy disposition of cases after the Sandiganbayan promulgated its decision convicting him for malversation of public funds. Thus, the Court ruled that his silence may be considered as a waiver of his right.
Considering petitioner's failure to seasonably raise the right to speedy disposition of his case, or even allege that the delay was vexatious, capricious, and oppressive, he is deemed to have waived his right.
Anent the allegation that petitioner could not be held administratively liable for simple neglect of duty, the same likewise carries no merit.
As correctly articulated by the CA, petitioner might not have had any participation in the preparation of the APP but he had a duty, in general, being an alternate member of the LBAC, to ensure that the rules and procedures for qualifications, bids, and awards have been complied with. Indeed, had he simply exercised due diligence in ascertaining the qualification of the bidders, Electrotel and Netcell, there would have been no irregularity in the procurement of computers and laptops by the province. 38
Moreover, petitioner should not be quick to pass the buck to the Provincial General Services Officer (PGSO) as the only one responsible in determining whether the two (2) aforenamed bidders were eligible. Even if the PGSO was primarily tasked to ensure that bidders are pre-qualified to bid, 39 it should be pointed out that one of the functions of the LBAC is the determination of the eligibility of prospective bidders. 40 Further, that petitioner is merely alternate member of the LBAC would not absolve him from liability. Members of the LBAC, regardless of their status as regular or alternate members, have the duty to ensure that the rules and procedures for qualifications, bids, and awards have been complied with. 41 Thus, petitioner's failure to observe due diligence in the exercise of his function as a member of the LBAC makes him liable for simple neglect of duty.
Under Rule 10, Section 46 (B) of the Revised Uniform Rules on Administrative Cases in the Civil Service, simple neglect of duty, being a less grave offense, is punishable by suspension of one (1) month and one (1) day to six (6) months. There being no aggravating or mitigating circumstance, Section 49 (b) of the same Rules provides that the medium of the penalty shall be imposed. Hence, the CA's imposition of suspension for three (3) months, without pay, must be sustained.
Finally, the CA likewise correctly held that petitioner is not entitled to any payment of back salaries as he did not win his appeal. The payment of backwages corresponding to the period of suspension of a civil service employee who is reinstated is proper only if "[they are] found innocent of the charges and the suspension is declared to be unjustified." 42
To state anew, petitioner did not prevail in his appeal. The CA did not exonerate him but only corrected the designation of the administrative offenses he committed and reduced the corresponding penalties. 43 He was still found liable for simple neglect of duty. Not being completely exonerated, his separation from the service, considered as preventive suspension during the pendency of his appeal, was not unjustified. It was done to protect public interest, considering that he was charged with gross neglect of duty and found guilty thereof by the OMB-Min. 44
WHEREFORE, premises considered, the Amended Petition for Review is hereby DENIED. Accordingly, the 29 September 2015 Decision and 04 March 2016 Resolution rendered by the Court of Appeals in CA-G.R. SP No. 05810-MIN are AFFIRMED in toto. aDSIHc
Petitioner Bernardo Peralta Qupit Jr. is found liable for simple neglect of duty and meted the penalty of suspension of three (3) months without pay. The incumbernt Governor of Davao del Sur is hereby ordered to reinstate petitioner to his original position without loss of seniority rights.
SO ORDERED."
By authority of the Court:
(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court
Footnotes
1. Rollo, pp. 154-185.
2. Id. at 187-206; penned by Associate Justice Rafael Antonio M. Santos and concurred in by Associate Justices Edgardo A. Camello and Henri Jean Paul B. Inting (now a Member of this Court) of the Court of Appeals, Twenty-Second Division, Cagayan de Oro City.
3. Id. at 66-71.
4. Id. at 187; penned by Hon. Aileen Lourdes A. Lizada, Graft Investigation and Prosecution Officer I.
5. Id.
6. Id. at 188.
7. Id. at 198.
8. Id. at 189.
9. Id. at 199.
10. SECTION 373. Annual Procurement Program. — (a) On or before the fifteenth (15th) day of July each year, the local chief executive shall prepare an annual procurement program for the ensuing fiscal year which shall contain an itemized list of the estimated quantity of supplies needed for such year, a complete description thereof as to kind, quality, estimated cost, and balance on hand: Provided, however, That the total estimated cost of the approved annual procurement program shall not exceed the total appropriations authorized for the acquisition of supplies. The local government units may augment the supplies and equipment provided by the Supreme Court to the lower courts located in their respective jurisdictions.
(b) Except in emergency cases or where urgent indispensable needs could not have been reasonably anticipated, no purchase of supplies shall be made unless included in, or covered by, the approved procurement program.
(c) The conversion of excess cash into supplies stock is hereby prohibited except to the extent of the kind and quantity specified in the approved annual procurement plan.
A violation of this section shall be a ground for suspension or dismissal of any official or employee responsible therefor.
11. The Local Government Code of 1991.
12. SECTION 8. Annual Procurement Program. — On or before the fifteenth day of July of each year, the general services officer or the local treasurer, as the case may be, shall prepare for the approval of the local chief executive an annual procurement program for the ensuing fiscal year which shall contain an itemized quantity of supplies or property needed for the entire fiscal year, complete description thereof as to kind, quantity and quality, the estimated cost, and the balance on hand. The total estimated cost of the annual procurement program shall not exceed the total appropriations authorized for the acquisition of supplies or property.
13. Rollo, p. 189; The Rules and Regulations on Supply and Property Management in the Local Governments.
14. Id.
15. Id. at 190.
16. Id. at 192.
17. Id. at 190.
18. Id. at 188.
19. Id. at 187, 193.
20. Id. at 187.
21. Id. at 187-206.
22. Id. at 205-206.
23. Id. at 203-204.
24. Id. at 66-71.
25. Id. at 15-43.
26. Id. at 161-162.
27. 472 Phil. 285, 321 (2004).
28. Section 14 of Article VIII of the constitution provides: "No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based."
29. Rollo, p. 164.
30. V.C. Ponce Co., Inc. v. Reyes, 583 Phil. 644, 650 (2008).
31. Office of the Ombudsman v. Espina, 807 Phil. 529, 543 (2017); Avenido v. Civil Service Commission, 576 Phil. 654, 661 (2008).
32. Bautista v. Sandiganbayan, G.R. Nos. 238579-80, 24 July 2019.
33. People v. Sandiganbayan, G.R. No. 233063, 11 February 2019.
34. Bautista v. Sandiganbayan, G.R. Nos. 238579-80, 24 July 2019.
35. Rollo, p. 299.
36. G.R. Nos. 206438, 206458 & 210141-42, 31 July 2018.
37. 606 Phil. 514 (2009).
38. Rollo, pp. 203-204.
39. Id. at 122.
40. Section 12 of Article V of Republic Act No. 9184 or the Government Procurement Reform Act.
41. Rollo, pp. 203-204.
42. Garcia v. Molina, 776 Phil. 64, 73 (2016).
43. San Diego v. Fact-Finding Investigation Committee, OMB-MOLEO, G.R. No. 214081, 10 April 2019.
44. Civil Service Commission v. Rabang, 572 Phil. 316, 324 (2008).