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Gobenciong v CA Velasco, J. (2008) Facts: Dr.

. Pedro Gobenciong was Administrative Officer IV in Eastern Visayas Regional Medical Center (the hospital), a public hospital. In 1996, the hospital planned to buy a hemoanalyzer/particle counter. A public bidding was had, where Alvez Commerical, Inc. won. A Purchase Order was issued for 2 nebulizers and 1 particle counter. The nebulizers and hemoanalyzers appeared to have been delivered, as per: o Certification of Acceptance signed by Engr. Jocano and Supply Officer Babula. o Sales Invoice signed by Supply Officer Babula acknowledging receipt of the goods in good condidion. o COA Inspection Report certified by Engr. Jocano and Gobenciong attesting that the goods had been inspected as to quality and quantity. As it turned out, the hemoanalyzer was never actually delivered. Dr. Flora dela Pena, head of the hospitals Laboratory Unit, filed an administrative complaint with the Office of the Ombudsman-Visayas (Ombudsman) charging Gobenciong, Babula, Jocano, and 3 other persons with Falsification of Public Document and Misconduct. Upon Dela Penas motion, Ombdusman placed respondents, save one, under a six-month preventive suspension and directed the proper DOH Officer to immediately implement the Order. Gobenciong sought reconsideration of this order, but without awaiting the Ombudsmans action thereon, Gobenciong filed a petition for certiorari in the CA. o CA denied Gobenciongs petition for certiorari on the strength of Sec. 24 in relation to Sec. 27 of RA 6770, which expressly empower the Ombudsman, under defined conditions, to preventively suspend, for a maximum period of six months, all but three categories of public officials and employees under investigation by his office and to direct the immediate implementation of the corresponding suspension order. Ombudsman eventually found Gobenciong, et al guilty of Conduct Grossly Prejudicial to the Best Interest of the Service and imposed a penalty of 1 year suspension without pay. o Gobenciong filed a motion for reconsideration, which Ombudsman denied, prompting Gobenciong to appeal to the CA. o CA partially granted Gobenciongs appeal and set aside the Ombudsmans Decision in insofar as it imposed the penalty of 1 year suspension without pay. Relying on Tapiador v Office of the Ombudsman, it held that the disciplinary power of the Ombudsman in administrative cases is limited only to recommending to the disciplining authority the appropriate penalty to be meted out.

Issues: 1. Whether a preventive suspension ordered by the Ombudsman is immediately executory, notwithstanding a pending motion to reconsider the corresponding order? 2. Whether the disciplinary power of the Ombudsman is merely recommendatory? 3. Whether RA 6770, on the ground of undue delegation of legislative authority and under the equal protection clause, is unconstitutional? Held: 1. YES. Reading and harmonizing together Sec. 27(1) of RA 6770 and Sec. 8, Rule III of the Ombudsman Rules of Procedure, it is at once apparent that the immediately executory quality of a preventive suspension order does not preclude the preventively suspended respondent from seeking reconsideration of such order. The existence and availment of the right to move for reconsideration does not motu proprio stay the immediate execution of the provisionary order of preventive suspension. An order of preventive suspension is a preliminary step in an administrative investigation. And it is usually made immediately effective and executory to prevent the respondent from using his/her position or office to influence prospective witnesses or tamper with the records which may be vital to the prosecution of the case. 2. NO. CAs cited portion of the Tapiador case is a mere obiter dictum which cannot be cited as a doctrinal pronouncement of the Court. Furthermore, the refusal, without just cause, of any officer to comply with an order of the Ombudsman to penalize an erring officer or employee, which is a ground for disciplinary action, is a strong indication that the Ombudsmans recommendation is not merely advisory in nature but is actually mandatory within the bounds of law. By stating that the Ombudsman recommends the action to be taken against an erring officer or employee, the provisions of the Constitution and in RA 6770 intended that the implementation of the order be coursed through the proper officer (Ledesma v CA). 3. NO. The Office of the Ombudsman is a creature of the Constitution. The framers of the 1987 Constitution intended the office to be strong and effective, with sufficient bite and muscle to enable it to carry out its mandate as protector of the people against the inept, abusive, and corrupt in the Government. They, however, left it to Congress to invest the office with more broad powers to enforce its own action. Clearly then, the espoused theory of undue delegation of authority is untenable. For, in the ultimate analysis, it is the 1987 Constitution no less which granted and allowed the grant by Congress of sweeping prosecutorial, investigatory, and disciplinary powers to the Ombudsman. Furthermore, the issue of constitutionality was not raised at the earliest possible opportunity; this means before the Office of the Ombudsman, or at least before the CA.