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CSC v. Sojor
May 22, 2008
Reyes
alycat
SUMMARY:Sojor was appointed President of Central Visayas
Polytechnic College by the universitys Board of Trustees.
When he was administratively charged, Sojor argued that he
was a presidential appointee, hence, not subject to the
jurisdiction of the CSC. The CSC dismissed this argument,
but it was sustained by the CA. The SC reversed the CA and
upheld the CSC, ruling that The CSC has jurisdiction over
Sojors case.

x
DOCTRINE:The CSC has been granted jurisdiction over all
civil service positions in the government service, whether
career or non-career. The Revised Uniform Rules on
Administrative Cases in the Civil Service (CSC Rules) spells
out the specific jurisdiction of the regional office and the
Commission itself. All members of the civil service are under
the jurisdiction of the CSC, unless otherwise provided.
FACTS:
x

x
1

The Board of Trustees (BOT) of Central Visayas

Polytechnic College(now Negros Oriental State
University) appointed Henry Sojor as school president
two terms in a row under RA 8292 (Higher Education
Modernization Act of 1997).
Three administrative cases1 were filed by CPVC
faculty before the CSC Regional Office:

(1) Dishonesty, Misconduct, and Falsification of Official Document; (2)

Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest
of the Service; and (3) Nepotism

1. Dishonesty, Misconduct, and Falsification of

Official Document
2. Dishonesty, Grave Misconduct, and Conduct
Prejudicial to the Best Interest of the Service
3. Nepotism
Sojor moved to dismiss two of the cases, arguing that
the CSC had no jurisdiction over him since he is a
presidential appointee, under the disciplinary
jurisdiction of the Office of the President.
o The CSC Regional Office denied the motion to
dismiss.
Sojorappealed to the CSC, arguing that since the BOT
is headed by the Committee on Higher Education
Chairperson, who was under the Office of the
President, then the BOT was also under the OP. And
being appointed by the BOT, he should be considered
a presidential appointee.
The CSC dismissed Sojors appeal and authorized its
regional office to proceed with the investigation.
Sojor was preventively dismissed for 90 days.
o Since the President of a state college is
appointed by the college BOT, it is crystal
clear that he is not a presidential appointee.
o The CSC and the CPVC BOT have concurrent
jurisdiction over cases against CPVC officials
and employees.
The CA resolved in favor of Sojor and enjoined the
CSC from proceeding with the administrative
investigation.
o The governing board (BOT) shall have the
specific powers and duties. To remove
faculty members and administrative officials
and employees for cause in accordance with
the requirements of due process of law.

ISSUE: Does the CSC have jurisdiction over Sojors case?

YES

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RATIO:
On the jurisdiction of the CSC and CSC Regional
Offices
The CSC has been granted jurisdiction over all civil service
positions in the government service, whether career or noncareer. The Revised Uniform Rules on Administrative Cases
in the Civil Service (CSC Rules) spells out the specific
jurisdiction of the regional office and the Commission itself.
Sec. 4: Except as otherwise provided by the Constitution or by law, the Civil
Service Commission shall have the final authority to pass upon the
removal, separation, and suspension of all officers and employees in the
civil service and upon all matters relating to the conduct, discipline and
efficiency of such officers and employees.
Sec. 5: The CSC shall have jurisdiction over the following cases:
x
Disciplinary Complaints against Civil Service officials and
employees which are not acted upon by the agencies, and such
other complaints requiring direct or immediate action
x
Non-disciplinary Decisions of the CSC Regional Offices brought
before it
Sec. 6.: The CSC Regional Offices shall have jurisdiction over the following
cases:
x
Disciplinary Complaints initiated by, or brought before, the Civil
Service Commission Regional Offices provided that the alleged
acts or omissions were committed within the jurisdiction of the
Regional Office

In the case at bar: A state university president with a fixed

term of office appointed by the BOT is a non-career civil
service officer. By clear provision of law, he is under the
jurisdiction of the CSC.
On the BOTs power to remove
Sec. 4, RA 8292: The governing board shall have the following specific
powers and duties, in addition to its general powers of administration, and
the exercise of all the powers granted to the board of directors of a
corporation: To remove faculty members and administrative officials and

employees for cause in accordance with the requirements of due process of

law

This provision was reproduced verbatim in Sec. 7 of the

succeeding law, RA 9299.
Notably, and in contrast with the earlier law, RA 9299 now
provides that the administration of the university and
exercise of corporate powers of the board shall be exclusive.
Sec. 4.: The administration of the University and the exercise of its
corporate powers shall be vested exclusively in the Board of Regents and
the president of the University insofar as authorized by the Board.

Thus, there is no question that the administrative power

over the school exclusively belongs to its BOT. BUT the
BOT does not have the exclusive power to remove its
university officials. Although the BOT is given the specific
power under Sec. 7, RA No. 9299 to discipline its employees
and officials, there is no showing thatsuch power is
exclusive. All members of the civil service are under the
jurisdiction of the CSC, unless otherwise provided. Being a
non-career civil servant does not remove Sojor from the
ambit of the CSC.
UP v. Regino: As a component of the Civil Service, UP is
therefore governed by PD 807 and administrative cases
involving the discipline of its employees come under the
appellate jurisdiction of the Civil Service Commission.
Camacho v. Gloria: Of course under EO 292, a complaint
against a state university official may be filed either with the
universitys Board of Regents or directly with the Civil
Service Commission.
On Academic Freedom

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Certainly, academic institutions and personnel are granted

wide latitude of action under the principle of academic
freedom. Academic freedom encompasses the freedom to
determine who may teach, who may be taught, how it shall
be taught, and who may be admitted to study.Following that
doctrine, this Court has recognized that institutions of higher
learning has the freedom to decide for itself the best
methods to achieve their aims and objectives, free from
outside coercion, except when the welfare of the general
public so requires.
This principle, however, finds no application in the present
case. The administrative complaints filed against Sojor
involve violations of civil service rules. Academic freedom
does not give an institution the unbridled authority to
perform acts without any statutory basis. For that reason, a
school official, who is a member of the civil service, may not
be permitted to commit violations of civil service rules under
the justification that he was free to do so under the principle
of academic freedom.
DISPOSITIVE: CA reversed. CSC reinstated. The CSC has
jurisdiction over Sojors case.

Geronga v. Varela
February 22, 2008
Austria-Martinez, J.
Oswald P. Imbat
SUMMARY: Geronga, Engineer IV employed by Cadiz City,
was subjected to two administrative cases. Upon two
Recommendations of dismissal of the City Legal Officer
respecting the two cases, Mayor Varela dismissed Geronga,
who incorporated the Recommendations in a Memorandum
sent to the latter. Geronga filed a notice of appeal with the
CSC, assailing his dismissal as embodied in the
Memorandum. In his memorandum before the CSC,
however, he only discussed one case. The CSC ruled in

Gerongas favor in one of the cases. However, finding that

the other case was not appealed, it sustained his dismissal.
So did the CA. The SC reversed, ruling that, Gerongas
notice of appeal effectively included the other case and, in
any case, the Recommendation and the Memorandum
were issued in violation of Gerongas right to due process,
because he was found liable for an offense not charged in
the case.
DOCTRINE: A recommendation to dismiss is that
contained in a formal investigation report issued by a
hearing or investigating officer and submitted to the
disciplining authority for approval. Such recommendations
are not the proper subject matter of an appeal to the CSC.
In contrast, a decision/resolution of dismissal is that
rendered by the disciplining authority after receipt of the
recommendation of the investigating/hearing officer, and
on the basis of his independent assessment of the case. It
is the decision which may be appealed or be subject of
execution, if already final.
FACTS:
1. Benjamin Geronga worked as Engineer IV at the General
Services Dept., Cadiz City.
a. In 1996, he was involved in two administrative cases:
(1) Admin. Case (AC) 96-04, for unjust vexation,
contempt, insubordination, conduct unbecoming a
public officer, and alarm and scandal; and (2) AC 9605, for grave misconduct and engaging in partisan
political activity.
b. Impleaded with him in the second case were Edwin
Nuyad and Nick Ambos, also employees of Cadiz City.
2. The cases were referred by Mayor Eduardo Varela to City
Legal Officer Marcelo Del Pilar (Del Pilar) for investigation.
a. Del Pilar issued, for AC 96-04, a Recommendation,
dated December 1, 1997, for Gerongas dismissal for
grave misconduct.
b. Del Pilar also issued, for AC 96-05, a Recommendation,
dated December 4, 1997, for the dismissal of Geronga,

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Ambos and Nuyad for grave misconduct and partisan

politics.
c. Mayor Varela sent a Memorandum dated January 8,
1998, to Geronga, which incorporated by reference the
recommendations, declared him guilty of the charges,
and imposed dismissal.
3. Geronga, without counsel, filed a notice of appeal with
the CSC stating that he is appealing his dismissal as
embodied in the Memorandum.
a. Geronga, Ambos and Nuyad, still without counsel, then
filed a joint memorandum discussing only AC 96-05,
omitting reference to AC 96-04.
b. The CSC granted the appeal at first.
c. However, on Mayor Varelas MR, pointing out that
Geronga failed to appeal AC 96-04, where the decision
has become final, the CSC modified its decision only
with respect to Geronga, sustaining his dismissal.
4. Mayor Varela and Geronga both appealed to the CA,
which affirmed the CSC.
ISSUES/RULINGS:
1. May the CSC entertain Mayor Varelas MR? Yes.
2. Was the CSC [then the CA] correct in granting the MR?
No.
3. Was Geronga denied due process in the resolution of AC
96-04? Yes.
RATIO:
1. Under the Uniform Rules on Administrative Cases in the
Civil Service (Uniform Rules), a party adversely affected,
who may appeal and, for that matter, file an MR, refers
to the respondent against whom a decision in a
disciplinary case has been rendered or to the disciplining
authority in an appeal from a decision exonerating said
employee.
a. Section 37(a) and 39, Civil Service Law, provide that
the CSC shall decide appeals in all administrative
disciplinary cases involving the imposition of a penalty
of suspension for more than 30 days, or fine in an

amount exceeding 30 days salary, demotion in rank or

salary or transfer, removal or dismissal from office.
b. The previous Uniform Rules, implementing said
provisions, defined a party adversely affected as the
respondent against whom a decision in a disciplinary
case has been rendered.
c. However, pursuant CSC v. Dacoycoy, where the
concurring opinion of Puno, C.J. stated that it is non
sequitur to contend that since some decisions
exonerating public officials from minor offenses cannot
be appealed, ergo, even a decision acquitting a
government official from a major offense like nepotism
cannot also be appealed, the CSC amended the
Uniform Rules.
d. Thus, Mayor Varela, as the appointing and disciplining
authority, is considered a real party in interest, and
may file an MR.
2. The basis of the reconsideration of the CSC, which was
the finality of the decision in AC 96-04, is erroneous.
a. The CA and CSC declared as final and executory the
decision in AC 96-04 on the sole ground that Geronga
failed to appeal from said Decision dated December 1,
1997 within 15 days.
b. The CSC and CA were under the erroneous impression
that in AC 96-04, Mayor Varela issued a Decision
dated December 1, 1997 and that it is this decision
which Geronga should have appealed.
c. What is dated December 1, 1997 is merely the
Recommendation of Del Pilar. The formal decision of
respondent is Memorandum dated January 8, 1998.
d. There is a material difference between a mere
recommendation to dismiss an employee and an
administrative decision sentencing him with dismissal.
e. Under Section 35, Rule III, Uniform Rules, a
recommendation to dismiss is that contained in a
formal investigation report issued by a hearing or
investigating officer and submitted to the disciplining
authority for approval.
i. While the recommendations of Del Pilar contain the
approval of Mayor Varela as disciplining authority,

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both merely state findings of probable cause that

Geronga is guilty of the administrative charges filed
against him and recommend that he be dismissed.
ii. These recommendations are not the proper subject
matter of an appeal to the CSC (Rubio v. Munar).
f. In contrast, a decision/resolution of dismissal is that
rendered by the disciplining authority after receipt of
the recommendation of the investigating/hearing
officer, and on the basis of his independent
assessment of the case.
i. The Memorandum issued by Mayor Varela is of this
type.
ii. It is the decision which may be appealed or be
subject of execution, if already final.
iii. This Memorandum is the decision of Mayor Varela,
not just in AC 96-05, but also in AC 96-04. While it
referred to a singular Resolution/Recommendation
of Del Pilar, two were attached, all of which were
received by Geronga on January 9, 1998.
g. Thus, the notice of appeal filed by Geronga before the
CSC, distinctly stating that he is appealing his
dismissal as embodied in the Memorandum, effectively
included AC 96-04.
3. The Recommendation and Memorandum were issued in
violation of Gerongas right to due process, for finding
him liable for an offense not charged.
a. The CSC and CA did not look into the merits of AC 9604, adhering instead to the basic rule that a party who
fails to cite specific grounds or arguments is deemed to
have waived them.
b. The rule, however, is not sacrosanct. It yields to the
imperatives of equity, as in cases where at stake is the
security of tenure of labor, which is constitutionally
protected.
c. As in the cases of PAGCOR v. Angara and ConstantinoDavid v. Pangandaman-Gania, which allowed belated
claims for backwages in the broader interest of justice,
so too must Geronga, unaided by counsel, be allowed
redress, since, as it turns out, upon review, the

d.

e.
f.

g.

h.

i.

j.

Memorandum, insofar as it relates to AC 96-04, is

patently void.
Two fundamental requirements of due process in
administrative cases are that (1) a person must be
duly informed of the charges against him; and (2) he
cannot be convicted of an offense or crime with which
he was not charged. A deviation from these
requirements renders the proceeding invalid and the
judgment issued therein a lawless thing that can be
struck down anytime.
In this case, the records of AC 96-04 reveal that
Geronga was dismissed for an act which was not
alleged in the administrative charge filed against him.
AC 96-04 arose from a complaint by Rodrigo Matero
charging Geronga with unjust vexation, gross
misconduct, insubordination, conduct unbecoming a
public officer and alarm and scandal, allegedly
committed through: (a) his refusal to comply with
several orders issued by Mayor Varela and Mateo for
the filing of daily time records; and (b) his having
challenged Mateo to a fistfight. The Subpoena issued
by Del Pilar related to his investigation as well as the
evidence summarized in his Recommendation pertains
solely to these incidents.
However, Del Pilars Recommendation of dismissal for
grave misconduct has no bearing whatsoever on the
offenses charged nor the incidents described. Rather, it
pertains solely to alleged defamatory statements
which Geronga made in his answer to the complaint.
Nowhere in the records of AC 96-04 does it appear that
Geronga was charged with grave misconduct, or that
he was held to answer for his alleged defamatory
statements.
Thus, the Recommendation and the Memorandum
were issued in violation of Gerongas right to due
process. Both are thus void. In effect, there was
nothing for Geronga to appeal from in AC 96-04.
With the nullity of the Recommendation and
Memorandum, AC 96-04 remains unresolved. While it
may be decided now based on the records, it is better

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to defer to the prerogative of the primary disciplining

authority, the incumbent Cadiz City Mayor, whether or
not to pursue said administrative case.
DISPOSITIVE:
Petition is granted. CSC and CA Resolutions reversed.
Memorandum and Recommendation in AC 96-04 annulled.
AC 96-04 remanded to Cadiz City Mayor for proper
disposition.

RUBENECIA v. CSC
May 31, 1995
Justice Feliciano
tecskat
SUMMARY:
Rubenecia was charged in an admin case. While his case
was pending before the MSPB, the CSC issued a Resolution
which provided that cases pending before the MSPB were to
be elevated to the CSC for decision. Rubenecia questioned
the power of the CSC to do so. The Court held that the MSPB
may be the subject of organizational change implemented
by the CSC. The functions of the MSPB relating to the
determination of administrative disciplinary cases were reallocated to the Commission itself. The purpose of the
Resolution is to "streamline the operation of the CSC"

DOCTRINE:
The 1987 Admin Code made it clear that MSPB was intended
to be an office of the CSC. It is not an autonomous entity.

Since it is a part of the internal structure and organization of

the CSC then it is a proper subject of organizational change.
FACTS:
1. Teachers of Catarman Natl High School filed before the
Merit System Protection Board (MSPB) an administrative
case against School Principal Ruble Rubenecia for
dishonesty, nepotism, oppression and violation of Civil
Service rules.
2. After a prelim investigation, MSPB formally charged
Rubenecia and required him to file an answer. Instead of
filing an answer, Rubenecio asked that he be furnished
copies of the documents submitted by the complainants.
3. The CSC Regional Dir invited Rubenecio to his office to
pick up the documents. Rubenecio requested that his visit
be deferred because of alleged problems in school.
4. The CSC reiterated that Rubenecio file his answer.
Rubenecio insisted that he be furnished copies of the
documents.
5. The Regl Dir set the case for hearing even though
Rubenecio did not file his answer. However, the hearing did
not take place since the complainants did not show up.
Rubenecio appeared at the hearing but he still did not file
his answer. The Regl Office then submitted the case for
resolution on the basis of the documents filed.
6. Rubenecia wrote to the Chairman of the CSC. He prayed
that the case be dismissed and submitted documents
supporting his claim of innocence.
7. The Regl Dir submitted an investigation report to MSPB.
Before MSPB could render a decision, the Commission issued

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Resolution 93-2387 which provided that cases pending

before the MSPB were to be elevated to the CSC for
decision.

autonomous entity. Since it is a part of the internal

structure and organization of the CSC then it is a
proper subject of organizational change.

8. Accordingly, the CSC took over the case and found

Rubenecio guilty and ordered his dismissal.

4. In contrast, the Court cited Eugenio v. CSC wherein the

Court invalidated a CSC Resolution which had transferred
the Career Executive Service Board to the Office for Career
Executive Service of the CSC precisely because the Career
Executive Service Board was an autonomous entity created
by a special law and attached, for administrative purposes
only, to the Civil Service Commission; that Board did not fall
within the control of the Civil Service Commission.

RUBENECIAs ARGUMENTS:
1. CSC has no jurisdiction over the admin case
because Res 93-2387 is invalid. Since the MSPB was a
creation of la then it could only be abolished by law.
2. Denied due process.
ISSUES:
1. WON the CSC had authority to issue Res 93-2387
and assume jurisdiction over the admin case.-YES
2. WON Rubenecia was denied due process.-NO
RATIO:
ISSUE 1:
1. The MSPB was originally created by PD 1409 as the Merit
Systems Board. It was composed of a commissioner and 2
associate commissioners appointed by the CSC.
2. PD 1409 had "created in the Civil Service Commission the
Merit Systems Board." Section 16 of the present Civil Service
Law found in the 1987 Administrative Code followed the
same line and re-created the Merit Systems Board as an
office of the Commission and gave it a new name: Merit
System Protection Board.
3. The 1987 Admin Code made it clear that MSPB was
intended to be an office of the CSC. It is not an

5. Prior to Res 93-2387, cases originating outside the CSC

and appealed to the MSPB were, in cases involving division
chiefs and higher officials and cases where the penalty
imposed was dismissal or separation from the service,
subject to further appeal to the CSC. At the same time,
cases filed originally with the MSPB could also be filed
directly with the Commission itself. It was this apparent
duplication or layering of functions within the Commission
that the Commission sought to rationalize and eliminate by
enacting Resolution 93-2387.
6. The change instituted by CSC Resolution 93-2387
consisted of the following:
a. Decisions in administrative cases appealable to the
Commission pursuant to Section 47 of the present Civil
Service Law may now be appealed directly to the
Commission itself and not to the MSPB.
b. Administrative cases already pending on appeal before
the MSPB or previously brought directly to the MSPB, at the
time of the issuance of Resolution 93-2387, were required to
be elevated to the Commission for final resolution.

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7. The functions of the MSPB relating to the determination of

administrative disciplinary cases were re-allocated to the
Commission itself. These changes were prescribed by the
Commission in its effort to "streamline the operation of the
CSC" which in turn required the "simplification of systems,
cutting of red tape and elimination of an unnecessary
bureaucratic layer."
8. Resolution 93-2387 did not purport to abolish the MSPB
nor to effect the termination of the relationship of public
employment between the Commission and any of its officers
or employees. Even if Resolution 93-2387 had purported to
do so, Rubenecia, who does not claim to be an officer or
employee of the MSPB, has no personality or standing to
contest such termination of public employment.
9. Regarding Rubenecias contention that the CSC did not
acquire jurisdiction over the case since he did not get any
written notice, Resolution 93-2387 did not require individual
written notice sent by mail to parties in administrative cases
pending before the MSPB. Assuming that Rubenecia had not
in fact been sent an individual notice, the fact remains that
Resolution 93-2387 was published in a newspaper of general
circulation so the Commission may accordingly be deemed
to have complied substantially with the requirement of
written notice in its own Resolution. Moreover, Rubenecia
himself had insisted on pleading before the Commission,
rather than before the MSPB when he filed before the CSC
his letter-cum-annexes which effectively was his answer to
the Formal Charge instituted before the MSPB. He cannot
now be heard to question the jurisdiction of the Commission.
ISSUE 2:
1. Rubenecia was not denied due process. The Formal
Charge prepared by the MSPB and given to Rubenecia

constituted sufficient notice which, in fact, had enabled him

to prepare his defense. Rubenecia himself admitted that he
had been furnished with copies of an affidavit and
testimonies of the principal witnesses against him that were
given during the preliminary hearing of the case against
Rubenecia.
2. As for Rubenecias request for copies of the documents
submitted by complainants, he was given an opportunity by
the Investigating Officer, to obtain those documents from
the CSC Regional Office. Rubenecia did not avail himself of
that opportunity and he cannot now be heard to complain
that he was not given such documents. In any case, he sent
a formal letter-answer to the CSC Chairman controverting
the charges against him. This letter-answer constitutes proof
that he did have notice of the accusations against him and
was in fact able to present his own defense.
3. Finally, the motion for reconsideration filed by Rubenecia
before the Commission cured whatever defect might have
existed in respect of alleged denial of procedural due
process.
** Details of Conviction**
Violation of Civil Service Rules and Regulation
-for not accomplishing his DTR
Dishonesty
- misrepresented that he was on official travel to Baguio City
-made it appear that he has perfect attendance for a certain
month
- he caused a certain Mrs. Vestra to teach even without any
appointment from the appointing authority
Nepotism
- he recommended that his brother-in-law be appointed as
Utilityman (Rubenecia is the recommending authority)
Oppression

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- he did not give on time the monetary benefits of certain

teachers
Insubordination
- acquitted since it was shown that his application for leaves
were duly approved by the proper official
DISPOSITIVE:
Court affirmed his dismissal.

QUIMBO vs GERVACIO
August 9, 2005
CARPIO-MORALES, J.
Mica Maurinne M. Adao

SUMMARY: Quimbo, Provincial Engineer of Samar, was

administratively charged for harassment and oppression by
Elmo V. Padaon, a general foreman by then Provincial
Governor Jose Roo before the Office of Ombudsman. He
was preventively suspended from March 18, 1998 to June 1,
1998. Ombudsman found him guilty of oppression and
imposed a penalty of suspension for 8 months without pay.
CA modified the decision of the Ombudsman, and found
Quimbo guilty of simple misconduct only and penalized him
with suspension of 2 months without pay. Quimbo now
moved that the period of his preventive suspension be
credited as part of his penalty pursuant to Gloria vs. CA.
Ombudman disagreed. SC affirmed Ombudsman ruling and
held that the preventive suspension cannot be credited as
part of penalty. The preventive suspension was done
pending investigation and what can be credited as part of
penalty is preventive suspension pending appeal.

measure, a preliminary step in an administrative

investigation. The purpose of the suspension order is to
prevent the accused from using his position and the powers
and prerogatives of his office to influence potential
witnesses or tamper with records which may be vital in the
prosecution of the case against him. If after such
investigation, the charge is established and the person
investigated is found guilty of acts warranting his
suspension or removal, then he is suspended, removed or
dismissed. This is the penalty.
Preventive suspension pending investigation cannot be
credited as part of penalty. What can be credited as part of
penalty is preventive suspension pending appeal. (own
words)
On May 21, 1995 Prudencio C. Quimbo, Provincial Engineer
of Samar, was administratively charged for harassment and
oppression by Elmo V. Padaon, a general foreman who was
detailed to the Motor Pool Division, Provincial Engineering,
Barangay Payao, Catbalogan, Samar by then Provincial
Governor Jose Roo.
During the pendency of the administrative case, Quimbo
was by November 28, 1997 Order of the Ombudsman placed
under preventive suspension without pay to commence
upon receipt of the order and until such time that it is lifted
but in no case beyond Six (6) Months.
Petitioner began serving his preventive suspension on March
18, 1998. The same was lifted by the Ombudsman Order
dated April27, 1998 and implemented by OIC Governor
Memo dated June 3, 1998 ordering Quimbo to resume
performing his duties as Provincial Engineer.

DOCTRINE: Preventive suspension is merely a preventive

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The Ombudsman found Quimbo guilty of oppression and

ordered him to be suspended from office for a period of
eight (8) months without pay, this case being the second
commission by him of the same offense. MR was denied.
But, CA modified the decision of the Ombudsman, and found
Quimbo guilty of simple misconduct only and penalized him
with suspension from office for a period of Two (2) Months
without pay.
Following the finality of the appellate courts decision, the
Office of the Ombudsman, by Order dated June 24,
2002, directed the Provincial Governor to implement its
decision, as modified by the appellate court.
Petitioner filed, however, before the Office of the
Ombudsman a Motion for Modification/Reconsideration of its
June 24, 2002 Order, calling attention to the fact that he had
been on preventive suspension from March 18, 1998 to June
1, 1998 and praying that the order under reconsideration be
modified to take into account the period of [his]
PREVENTIVE SUSPENSION of TWO (2) MONTHS and
SEVENTEEN (17) [DAYS] WITHOUT PAY as part of the final
penalty imposed.
In a similar move, Provincial Governor Milagrosa Tan sent a
letter also to the Ombudsman seeking clarification on the
merits of petitioners contention that he should no longer be
required to serve the penalty of Two (2) Months suspension
without pay, he having priorly served preventive suspension
for more than Two (2) Months.
The Office of the Ombudsman clarified that preventive
suspension is not a penalty but a preliminary step in an
investigation; [and that] [i]f after such investigation, the
charge is established and the person investigated upon is
found guilty . . . warranting the imposition of penalty, then

he shall accordingly be penalized. The order for the

implementation of its decision, as modified by the appellate
court, was thus reiterated in the letter. CA affirmed the
Ombudsmans ruling that preventive suspension pending
investigation is not a penalty.Hence, the present petition for
review on certiorari.
ISSUE: Should the preventive suspension be taken
into account as part of the penalty imposed?
RULING: NO
Quimbo contends in the affirmative, he arguing that the
dismissal of his petition is in violation of the doctrine
enunciated in Gloria v. Court of Appeals and the rule on
equity that a person should not be punished twice nor be
made to suffer the suspension penalty after [he] had
[served] the same (although in a preventive suspension).
The argument of Quimbo has no merit.
Jurisprudential law establishes a clear-cut distinction
between
suspension as
preventive
measure and
suspension as penalty. The distinction, by considering the
purpose aspect of the suspensions, is readily cognizable as
they have different ends sought to be achieved.

Preventive suspension is merely a preventive measure, a

preliminary step in an administrative investigation. The
purpose of the suspension order is to prevent the accused
from using his position and the powers and prerogatives of
his office to influence potential witnesses or tamper with
records which may be vital in the prosecution of the case
against him. If after such investigation, the charge is

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established and the person investigated is found guilty of

acts warranting his suspension or removal, then he is
suspended, removed or dismissed. This is the penalty.
That preventive suspension is not a penalty is in fact
explicitly provided by Section 24 of Rule XIV of the Omnibus
Rules Implementing Book V of the Administrative Code of
1987 (Executive Order No. 292) and other Pertinent Civil
Service Laws.
SEC. 24. Preventive suspension is not a punishment
or penalty for misconduct in office but is considered to
be a preventive measure.
Not being a penalty, the period within which one is
under preventive suspension is not considered part
of the actual penalty of suspension. So Section 25 of
the same Rule XIV provides:
SEC. 25. The period within which a public officer or
employee charged is placed under preventive
suspension shall not be considered part of the
actual penalty of suspension imposed upon the
employee found guilty.
Clearly, service of the preventive suspension cannot be
credited as service of penalty. To rule otherwise is to
disregard above-quoted Sections 24 and 25 of the
Administrative Code of 1987 and render nugatory the
substantial distinction between, and purposes of imposing
preventive suspension and suspension as penalty.

Petitioner Quimbos reliance on Gloria fails. In said case,

this Court recognized two kinds of preventive suspension of

civil service employees who are charged with offenses

punishable by removal or suspension, to wit: (1) preventive
suspension pending investigation (Section 51 of the Civil
Service Law [Book V, Title I, Subtitle A of the Administrative
Code of 1987]), and (2) preventive suspension pending
appeal if the penalty imposed by the disciplining authority is
suspension or dismissal and, after review, the respondent is
exonerated (Section 47(4) of The Civil Service Law).
The foregoing classification has significant implications in
determining the entitlement of the employee to
compensation during the period of suspension, and to credit
the preventive suspension to the final penalty of suspension.
Thus, in Gloria, this Court held:
Preventive suspension pending investigation, as already
discussed, is not a penalty but only a means of enabling the
disciplining
authority
to
conduct
an
unhampered
investigation. On the other hand, preventive suspension
pending appeal is actually punitive although it is in effect
subsequently considered illegal if respondent is exonerated
and the administrative decision finding him guilty is
reversed. Hence, he should be reinstated with full pay for
the period of the suspension. Thus, 47(4) states that
respondent shall be considered as under preventive
suspension during the pendency of the appeal in the
event he wins. On the other hand, if his conviction is
affirmed, i.e., if he is not exonerated, the period of
his suspension becomes part of the final penalty of
suspension or dismissal.
In fine, as petitioners preventive suspension was carried out
pending his investigation, not while his appeal from his
conviction was pending, the same cannot be credited to
form part of the final penalty of suspension.

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En passant, neither may the concept of crediting, in criminal

law, preventive imprisonment in the service of a convicts
term of imprisonment be applied to preventive suspension
during investigation in administrative law in the service of a
respondents final penalty of suspension. For not only are
they distinct in the objective or purpose, or in their nature
as preventive imprisonment involves restriction of personal
liberties which is not the case with preventive suspension;
the respective laws covering them are explicit.
Finally, as shown above, since the law explicitly prescribes
the rules on crediting of preventive suspension to the final
penalty of suspension, petitioners invocation of equity may
not lie.
WHEREFORE, the petition is hereby DENIED.

The Ombudsman and CIR v.

Beatriz Pelio
14 April 2008
Justice Ynares-Santiago

SUMMARY: The Office of the Ombudsman filed a complaint

against Beatriz Pelio and Joseph Albert Pelio Cuaki for (a)
18 counts of perjury in her SALN, (b) RA 6713, (c)
Dishonesty and grave misconduct, and (d) RA 1379. Pelio is
the head of the BIR Large Taxpayers Document Processing
and Quality Assurance Division, while Cuaki is respondents
son.
The complaint charges respondent with illegally
acquiring and accumulating the properties and investments,
as well as incurring expenses and liabilities grossly
disproportionate to her income and earning capacity as a
government employee, and for not disclosing the same in
her annual SALNs several real and personal properties.
Moreover, she omitted to declare in her Personal Data Sheet

that she has a son. On the contrary, she claims that she is
single. A preventive suspension order was issued. Pelio
assailed such order before the Court of Appeals. The CA
issued a TRO against the preventive suspension order. The
issue resolved by the SC is whether or not the Ombudsman
issued the preventive suspension order with GAD. The SC
held that the Ombudsman correctly issued the preventive
suspension order because the evidence of guilt is strong.
DOCTRINE: For a Preventive Suspension Order to be
issued, what the law requires is merely that, first, the
evidence of guilt must be strong; and second, that at least
any one of the three circumstances (1) that the charge
involves dishonesty, oppression or grave misconduct or
neglect in the performance of duty; (2) that the charge
warrants removal from the service; or (3) that the
respondent's continued stay in office may prejudice the case
filed against him is present.
FACTS:
1. Beatriz Pelio (PELIO) is the head of the BIR Large
Taxpayers Document Processing and Quality Assurance
Division, while Joseph Albert Pelio Cuaki (CUAKI) appears
on record as PELIOs son by one Alfonso Cuaki (Alfonso).
CUAKIs birth certificate listed PELIO and Alfonso as his
parents.
2. On May 11, 2005, the Field Investigation Office of the
Office of the Ombudsman filed a complaint against Beatriz
Pelio (PELIO) and Joseph Albert Pelio Cuaki (CUAKI) for
violation of the following laws.
a. Eighteen counts of perjury under Art. 183, RPC, for
not making a true detailed SALN;
b. RA 6713, in regard to the filing of SALN;
c. Dishonest and grave misconduct under EO 292, as
amended by CSC Circular No. 19
d. RA 1379, for alleged unexplained wealth

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3. The complaint charges PELIO with illegally acquiring and

accumulating the following property and investments, and
incurring expenses and liabilities grossly disproportionate to
her income and earning capacity as a government
employee, and for not disclosing the same in her SALN. (I
will only include the properties that were enumerated in the
SCs ratio.)
4. In relation to the charge of dishonesty and grave
misconduct, apart from her failure to file true detailed SALN,
PELIO also omitted to declare in her Personal Data Sheet
that she has a son. She claims that she is single.
5. The complaint also sought the preventive suspension of
PELIO for six months without pay, in accordance with the
Ombudsman Act.

suspension order. To do this, the SC must determine if the

evidence of guilt is strong.
ISSUES:
Was the evidence of PELIOs guilt strong to justify the
issuance of the preventive suspension order? YES.
RATIO:
The Ombudsman Act of 19892, with respect to the
imposition of preventive suspension, requires the following
to be shown: Evidence of guilt is strong; AND any of the
three [ a) the charge involves dishonesty, oppression or
grave misconduct; b) the charge warrants removal from
service; or c) the respondents continued stay in office may
prejudice the case filed against him. ]
SC: The evidence of guilt is strong.

6. On August 4, 2005, PELIO filed a Sworn Explanation

detailing her defenses.
7. On August 31, 2005, A Preventive Suspension (for a
period of 6 months) Order was issued. PELIO was also
directed to file her counter-affidavit.
8. PELIO filed an Urgent Motion to Lift Order of Preventive
Suspension. However, before the said urgent motion could
be resolved, PELIO elevated the matter to the Court of
Appeals. On January 26, 2007, The CA granted PELIOs
application for the issuance of TRO against the
Ombudsmans Preventive Suspension Order.
9. On July 25, 2007, the Ombudsman directed the parties to
submit their respective position papers, after which the case
shall be deemed submitted for decision.

Property/

PELIOs

Supreme

SECTION 24.
Preventive Suspension. The Ombudsman or his
Deputy may preventively suspend any officer or employee under
his authority pending an investigation, if in his judgment the
evidence of guilt is strong, and (a) the charge against such officer
or employee involves dishonesty, oppression or grave misconduct
or neglect in the performance of duty; (b) the charges would
warrant removal from the service; or (c) the respondent's
continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more than six
months, without pay, except when the delay in the disposition of
the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period
of such delay shall not be counted in computing the period of
suspension herein provided. (Emphasis and underscoring supplied)

10. The case having been submitted for resolution, there is

no more need for preventively suspending PELIO. However,
the SC still determined whether the Ombudsman acted with
Grave Abuse of Discretion in issuing the preventive

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Document
involved

1.
Birth
certificate showing
PELIO as Cuakis
parent.

2.
Valle
Verde Residence

Defense
(why
they were not
included in the
SALN; why there
was no forgery)
- In 1985,
CUAKI was brought
by Alfonso to her
home.
CUAKIs
father
was
the
business buddy of
Alfonso and that the
baby
was
abandoned in the
hospital.
- It was
made to appear in
the birth certificate
that
PELIO
and
Alfonso
were
married and that the
boy was their son;
but
she
never
signed
the
birth
certificate.
Her
signature
in
the
birth certificate is a
forgery.
- Alfonso
finally admitted that
CUAKIs father is
Henry Go, former
Vice Chairman of
Universal
Robina
Corporation.
-funds
provided by Henry
Go
- while it

Courts
Determination
- Alfonso
and
PELIO
are
CUAKIs parents, as
the birth certificate
shows.
Although
PELIO claims that it
was forged, the said
document subsists
and has not been
voided.
- Being a
public
document,
the birth certificate
offers prima facie
evidence of foliation.
No
evidence
adduced
to
overthrow
the
presumption.
-This
being the case, the
SC cannot consider
PELIOs claim that
she
used
the
amount
she
allegedly
received
from Go (which was
intended for CUAKI)
to
acquire
the
properties
in
numbers 1 to 6 and
to
finance
their
yearly trips abroad.

3.
San
Juan Condomonium

4. House
and lot in Tagaytay

5.
Fuego pickup

6.

Isuzu

Toyota

RAV4

7.
Funds
for their yearly trips
abroad

8. Threestorey building and

lot in Rosario, Cavite

was in her name,

she regarded the
property
as
belonging to CUAKI
-funds
provided by Henry
Go
- CUAKIs
financial support
-funds
provided by Henry
Go
- CUAKIs
financial support
-funds
provided by Henry
Go
- CUAKIs
financial support
necessary for the
construction of the
house in Tagaytay
-funds
provided by Henry
Go
- CUAKIs
financial support
school
service
-funds
provided by Henry
Go
- she was
a mere trustee of
her
siblings;
but
admits she is one of
the
contributors,
thus making her a
co-owner
of
the
same

PELIO
admitted that she is
one
of
the
contributors,
thus
making her a coowner
of
the
property. She should
have declared the
extent
of
her
interest therein in
her SALN.

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9.
Residential lot
Tanza, Cavite

in

10. Lots in
Naic, Cavite and
agricultural land in
Tanza, Cavite

11.
Investment in Israel
Armour Philippines,
Inc.

- She is a
mere trustee of one
Sesinanda, to whom
she lent P 50, 000.
Property served as
collateral.

- she holds
in in trust for the
real owners

- she was
a mere nominee,
with
no
genuine
interest
in
the
financial success of
the said corporation

PELIO
obtained title by
foreclosing on the
property,
based
upon her admission
that the owner owed
her money.
-If
the
property constituted
mere collateral, then
it would have been
unnecessary
to
place the same in
PELIOs name; a
mortgage
deed
would have sufficed.
This
should have been
declared in the SALN
- There is
no trust document
or
the
written
statement
or
explanation of any
one of the heirs of
the real owners to
show
that
she
merely holds the
property in trust.
- If PELIO
is a mere nominee,
there should be a
document to show
this fact. But there
was none.
- As far as
the
law
is
concerned, PELIO
is
the
declared
owner
of
the
investment.
Her
interest
therein
should be declared
in her SALN.

PELIO claims she is not CUAKIs biological parent; and that

in 1983, or two years before CUAKI was born, she had her
uterus surgically removed. She blames Alfonso for obtaining
the boys fake birth papers wherein she is declared as the
boys mother. This is, however, a matter of defense that
should be brought during trial. CUAKIs certificate of live
birth prevails.
Even granting that the claim of forgery is true and that she
had nothing to do with the commission thereof, an inquiry
should be made into the extent of PELIOs participation in
the fraud, taking into consideration that all these years, she
may have condoned the use of these documents, or herself
used them.
Even if it were true that she did not participate in the actual
commission of the forgery, she virtually became a party to
the fraud, privy to the use of the falsified documents or
using them herself, took advantage of it by benefiting from
the practical and legal consequences engendered by their
mere existence and use.
Finally, CUAKIs birth certificate constitutes proof that
PELIO, who was working with the BIR, maintained an
adulterous relationship with Alfonso, who was married to
Rosa Cuaki. In addition to the accusations made against
her, PELIO should be charged with immorality as well.
There likewise appears to be strong evidence to suggest
that, apart from failing to disclose the subject properties in
her SALNs, PELIO is harboring unexplained wealth as well,
considering the sheer number of real and personal
properties acquired by her in her name and in that of CUAKI.
During the period 1993 to 1994, PELIO and CUAKI took four
(4) and two (2) foreign trips, and PELIO acquired no less
than four (4) sizable pieces of real property: a 578-square

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meter residential lot in Tanza, Cavite (TCT 408006); a 1.58

hectare lot in Naic, Cavite (TCT 874663); a 2.09 hectare lot
in Naic, Cavite (TCT 874664); and a 4,475-square meter
house and lot in Tagaytay City.
Yet in her 1993-1994 SALNs, she did not declare any cash in
bank; nor is there any indication in her previous (1986-1992)
SALNs that she had property which she may have sold (and
which is no longer declared in her 1993 and 1994 SALNs) or
any business interest from which to draw funds to be able to
afford to acquire the said four pieces of property; nor did her
liabilities increase; nor did she inherit said properties; nor
was she a donee thereof, as the evidence shows that she
appears to have acquired all four by purchase totaling, per
purchase price and estimate of the FIO based on market
value. The discrepancy is too obvious to ignore.
Considering PELIOs high rank and delicate office, the
gravity of the charges against her dishonesty, grave
misconduct, accumulation of unexplained wealth and
perjury, and the possibility of filing other charges as a result
of her admissions in her pleadings, such as immorality,
falsification and/or use of falsified documents which merit
dismissal from service as the corresponding penalty, the
Office of the Ombudsman did not commit GAD in issuing the
preventive suspension order.
In the instant case, the order of preventive suspension was
issued only after PELIO filed a sworn explanation detailing
her defenses to the charges made against her. It may thus
be said that the order for her preventive suspension was
issued after assessment of her defenses. Being so, we find
no abuse, much less grave abuse of the exercise of this
discretion.

WHEREFORE, the petition is GRANTED. The assailed

Decision of the Court of Appeals in CA-G.R. SP No. 93409
dated January 26, 2007 which made permanent the Writ of
Injunction
enjoining
petitioners
from
preventively
suspending petitioner and the Resolution dated July 30,
2007 denying the Motion for Reconsideration are hereby
ANNULLED and SET ASIDE.

Gobenciong v. CA
March 31, 2008
Velasco, Jr., J.
Jadd Sakuragi Dealino
Sorry for the late digest. I dont know what specific topic this falls
under. For reciting the facts, the summary should be sufficient.

SUMMARY: The Laboratory Unit Head of a public hospital

filed a complaint with the Ombudsman Visayas against
Dr. Gobenciong due to his role in the disbursement of funds
for a hemoanalyzer even though it was actually not
delivered to the hospital. The DOH also filed a formal
charge against Gobenciong. The Ombudsman preventively
suspended Gobenciong, which he appealed to the CA. The
CA decided against Gobenciong so he went up to the SC
through a Petition for Review on Certiorari. Meanwhile (in
the main case), the Ombudsman found Gobenciong guilty
and suspended him for 1 year w/o pay, and the DOH
Regional Office was directed to implement the suspension.
Gobenciong appealed this order to the CA. Another CA
division set aside the penalty in the Ombudsmans
decision, as to Gobenciong. The CA denied Gobenciongs
Motion for Partial Reconsideration so Gobenciong goes to
the SC via a Petition for Review on Certiorari. On the other
hand, the Ombudsman goes to the SC through a Petition
for Review under Rule 65. The SC consolidated the three
petitions (for the preventive suspension and the penalty),
and eventually decided in favor of the Ombudsman, finding
that the Ombudsman's preventive suspension of
Gobenciong
was
immediately
executory
despite

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Gobenciong's MR, that the Ombudsman's disicplinary

power is not merely recommendatory, and that the
Ombudsman Act is not unconstitutional.
DOCTRINE:
The immediately executory quality of a preventive
suspension order does not preclude the respondent from
seeking reconsideration. The existence and use of the right
to move for reconsideration does not motu proprio stay the
immediate execution of the provisionary order of
preventive suspension.
Requisites for the Ombudsmans Preventive Suspension:
1) Use of sound judgment by the Ombudsman or its
deputies
2) Determination that the evidence of guilt is strong
3) Determination that any of the 3 conditions (charge
of dishonesty, oppression, grave misconduct, or
neglect in the performance of duty; charges
warranting removal from the service; continued
stay in office may prejudice case filed against the
respondent) are present.
In an administrative investigation, preventive suspension
prevents the respondent from using their position or office
to influence witnesses or tamper with records.
The Ombudsman has full administrative disciplinary
authority over public officials and employees EXCEPT
impeachable officials, members of Congress, and the
Judiciary. This includes the power to determine the penalty
and cause the implementation of the penalty.
The statement in Tapiador advocating a literal
interpretation of the word "recommend" in the
Ombudsman Act is obiter as the main issue in that case
was the complainant's failure to present substantial
evidence in the administrative case.

The Ombudsman has the power to take disciplinary action

against an official that refuses without just cause to comply
with the Ombudsmans order to penalize an officer or
employee. This supports the proposition that the
Ombudsmans power is not merely recommendatory.

FACTS:
Parties:
o Petitioner: Dr. Pedro Gobenciong
Administrative Officer 4 of a public hospital in
Tacloban (The Eastern Visayas Regional Medical
Center)
o Respondents:
Court of Appeals
Deputy Ombudsman Visayas
Dr. Flora Dela Pea
Head of the hospitals Laboratory Unit
The hospital issued a Requisition and Issue Voucher for a
hemoanalyzer/particle
counter,
containing
the
specifications and handwritten unit price quotation
(P1.195998M)
Alvez Commercial Inc. (Alvez) was the best bidder at
the public bidding, and a Purchase Order was issued for
the hemoanalyzer.
According to the hospital documents, the hemoanalyzer
was delivered on December 20, 1996. The hospital
documents involved are:
o Certification of Acceptance Signed by Engr. Jose
Jocano and Crisologo Babula
o Sales Invoice Signed by Babula
o Commission on Audit Inspection Report Signed by
Jocano and Gobenciong
December 26, 1996: The Disbursement Voucher for the
hemoanalyzer was prepared.

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Gobenciong signed it, attesting that the expense was

necessary, lawful, and incurred under his direct
supervision.
December 27, 1996: A Landbank Check was issued in
favor of Alvez.
March 31, 1997: Alvez addressed a letter to the hospital,
assuring it that Alvez would replace the hemoanalyzer
which had not been delivered and was slightly defective.
April 1, 1997: The replacement was delivered.
April 2, 1997: The replacement was installed.
April 3, 1997: The replacement was inspected by Jocano
and Gobenciong.
The Head of the Laboratory Unit filed complaints
o June 20, 1997: The Head of the Laboratory Unit filed
an administrative complaint with the Office of the
Ombudsman Visayas.
Respondents: Gobenciong, Jocano, Babula, and 3
other hospital officers
Charge: Falsification of Public Documents AND
Misconduct
o Complaint w/ the Department of Health
October 29, 1997: Based on the complaint, the
DOH Secretary filed a Formal Charge
Respondents: Gobenciong and 3 others (not
stated in the case whom)
Charge: Grave Misconduct, Gross Neglect of
Duty, Conduct Prejudicial to the Best Interest
of the Service
August 24, 1998: The Deputy Ombudsman Visayas put
the respondents under preventive suspension, upon the
Laboratory Unit Heads motion. The Deputy Ombudsman
directed the proper DOH officer (the DOH Regional
Director) to immediately implement the Order.
November 9, 1998: Gobenciong received a copy of the
August 24 Order. He requested the deferment of its
implementation pending the resolution of his Motion for
Reconsideration (w/c he filed on November 12, 1998).
o

The DOH Regional Director sent a Memorandum to

Gobenciong et al., informing them that their 6 month
preventive suspension was effective immediately upon
their receipt of the Memorandum.
Gobenciong filed a Petition for Certiorari w/ the CA,
praying for a TRO.
November 19, 1998: The TRO was issued, enjoining the
Deputy Ombudsman and the DOH Regional Director from
implementing the preventive suspension. The TRO was
unheeded despite due service. Gobenciong moved for
citation in contempt, which the CA did not act upon.
March 21, 2000: The Ombudsman found Gobenciong et
al. guilty of Conduct Prejudicial to the Best Interest of the
Service, and Suspended them for 1 year without pay. The
hospital documents were found to have been falsified
since there was no actual delivery.
August 10, 2000: The Ombudsman denied Gobenciong
et al.s MR.
Gobenciong appealed to the CA.
November 16, 2000: The Office of the Ombudsman
Visayas directed the DOH Regional Office to immediately
implement the March 31 Decision.
December 11, 2000: Gobenciong moved (at the CA level)
that the DOH Regional Director be cited in contempt.
November 26, 2002: The CA denied Gobenciongs
Petition for Certiorari (in relation to his preventive
suspension).
August 27, 2003: The CA denied Gobenciongs MR.
Gobenciong comes to the SC (regarding the preventive
suspension) through a Petition for Review on Certiorari.
April 29, 2005: The CA (through a different division)
modified the March 21 Decision of the Ombudsman,
setting aside the Ombudsmans imposition of the
penalty (1y suspension w/o pay) on Gobenciong.
The Ombudsman comes to the SC through a Petition for
Certiorari under Rule 65.

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Motions for Reconsideration can be harmonized, so

there is no inconsistency.3
1) The SC thinks there is no conflict based on the
cases issues. The only discernible conflict is with
regard to the period for filing the MR (5 days in
the Ombudsman Act, 10d in the Ombudsman
Rules of Procedure)
a) If the SC were to follow Gobenciongs
argument to completion, then there would be
a wholesale abrogation of Ombudsman Act
provisions that are not at the very least
touched upon by the Ombudsman Rules of
Procedure.
2) The SCs reading and harmonization of the 2
provisions as regards the effect of an MR: The
immediately executory quality of a preventive
suspension order does not preclude the
respondent from seeking reconsideration. The
existence and use of the right to move for
reconsideration does not motu proprio stay the
immediate execution of the provisionary order of
preventive suspension.
a) Basis: The unqualified use of the phrase
immediately effective and executory in the
Ombudsman Act.
b) Digression: The SC goes on to explain the
purpose of making a preventive suspension
immediately executory: In an administrative
investigation, this prevents the respondent
from using their position or office to influence
witnesses or tamper with records.
C) The Ombudsman Act itself limits the power to
preventively suspend.
1) Requisites:
(1) Use of sound judgment by the Ombudsman or
its deputies

Gobenciong comes to the SC through a Petition for

Review on Certiorari after the CA denied his Motion for
Partial Reconsideration.
January 16, 2005: Gobenciong retired from the service.

ISSUES:
1) Whether the Ombudsmans preventive suspension was
immediately executory despite Gobenciongs MR against
it.
2) Whether the Ombudsmans disciplinary power is merely
recommendatory, excluding the authority to ensure
compliance of its recommendations.
3) Whether the Ombudsman Act is unconstitutional for
being an undue delegation of legislative authority, and
violates the equal protection clause of the Constitution.
RULING:
1) Yes.
2) No.
3) No.
RATIO:
1) Yes, the Ombudsmans Preventive Suspension Order is
immediately
executory
despite
a
Motion
for
Reconsideration against it.
A) There is no repeal by implication.
1) General Rule: Repeals by implication are not
favored.
a) Rationale: Laws presumptively passed w/ full
knowledge of extant legislation on the same
subject.
2) Exception: Inconsistency, the earlier act being so
repugnant as to be irreconcilable w/ the later one.
(Citing
Dipidio
Earth-Savers
Multi-Purpose
Association, Incorporated, v. Gozun, 2006)
B) The pertinent provisions of the Ombudsman Act and
the Ombudsman Rules of Procedure regarding
3

See the Annex for a side-by-side comparison of the

provisions.

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(2) Determination that the evidence of guilt is

strong
(3) Determination that any of the 3 conditions
(charge of dishonesty, oppression, grave
misconduct, or neglect in the performance of
duty; charges warranting removal from the
service; continued stay in office may prejudice
case filed against the respondent) are
present.
D) Finally, the SC emphasizes that preventive
suspension is imposable without prior hearing since it
is not a penalty for an administrative infraction.
E) In this case, the issue is moot and academic because
the preventive suspension has been served and the
CA has denied the motions for citation in contempt.
2) No,
the
Ombudsmans
power
is
not
merely
recommendatory and excludes the authority to ensure
compliance with its recommendations.
A) The Ombudsman has full administrative disciplinary
authority over public officials and employees EXCEPT
impeachable officials, members of Congress, and the
Judiciary.
1) This includes the power to determine the penalty
and cause the implementation of the penalty.
2) The statement in Tapiador to the effect that the
word recommend in the Ombudsman Act
should be literally-interpreted, is merely obiter at
best. It concerns the procedural aspect of the
Ombudsmans functions. (citing Ledesma v. CA)
a) It does not deal with the main point of that
case, which was the failure of the complainant
to present substantial evidence in the
administrative case.
b) Besides, the Ombudsman has the power to
take disciplinary action against an official that
refuses without just cause to comply with the
Ombudsmans order to penalize an officer or
employee.
3) The Constitution and the law clearly define the
Ombudsmans role in the Philippine legal system:

a) Basic Constitutional mandate: Protect the

people
b) Ombudsman Act:
1) Reiterates the Ombudsmans powers,
functions, and duties
2) Grants full administrative disciplinary
authority, defined as cover[ing] the entire
gamut of administrative adjudication
which entails the authority to, inter alia,
receive
complaints,
conduct
investigations,
hold
hearings
in
accordance with its rules of procedure,
summon witnesses and require the
production of documents, place under
preventive suspension public officers or
employees as warranted by the evidence,
and, necessarily, impose the said penalty.
c) The history of the Ombudsman Act shows the
intention for the Ombudsman to be an activist
watchman. (citing Office of the Ombudsman
v. CA)
3) No, the Ombudsman Act is not unconstitutional as it
violates neither the concept of undue delegation of
legislative authority, nor the equal protection clause of
the Constitution.
A) There is no undue delegation of legislative authority.
1) The Ombudsman is a creature of the Constitution.
2) The framers intended for the Ombudsman to be
strong and effective, with bite and muscle to
protect the people.
3) The Constitution itself grants and allows the
Congress to grant sweeping prosecutorial,
investigatory, and disciplinary powers
B) The Equal Protection Clause is not violated based on
its purpose, and an earlier SC decision where the
Ombudsmans power of preventive suspension was
pitted against the 60-day limitation on preventive
suspension in the Local Government Code.
1) Equal Protection does not apply where a law
applies only to persons falling w/in a specified

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class if it applies alike to all persons w/in the class

and there is a substantial distinction between
those who fall in the class and those who do not.
(citing Tiu v. Guingona, 1999).
2) In the case of Miranda v. Sandiganbayan, the SC
upheld the Ombudsmans power of preventive
suspension against the 60-day limitation on
preventive suspension in the LGC, saying that the
Ombudsman is Constitutionally-safeguarded from
political pressure through fiscal autonomy, a fixed
term of office, and classification as an
impeachable officer.
C) There are requisites for challenging a laws
unconstitutionality:
1) Actual and appropriate case and controversy
2) Person and substantial interest of the party
raising the constitutional question
3) Pleading for judicial review at the earliest
opportunity
4) Constitutional question is the very lis mota of the
case.
D) In this case: The question was not raised at the
earliest opportunity (at the Ombudsman/CA level)
E) The DOHs formal charge did not oust the
Ombudsman of its jurisdiction over the case.
DISPOSITIVE: Gobenciongs petitions DISMISSED.
DISSENTING OPINION: N/A
CONCURRING OPINION: N/A
ANNEX: Provisions of the Ombudsman Act and Ombudsman
Rules of Procedure Regarding Motions for Reconsideration
Ombudsman Act
Ombudsman Rules of
Procedure
Sec. 27.
Effectivity and Sec.
8.
Motion
for
Finality of Decisions.All Reconsideration
or
provisionary orders of the reinvestigation;
Grounds.
Office of the Ombudsman Whenever
allowable,
a

are immediately
and executory.

effective

A motion for reconsideration

of any order, directive or
decision of the Office of the
Ombudsman must be filed
within five (5) days after
receipt of written notice and
shall be entertained only on
any of the following grounds:
(1) New evidence has been
discovered which materially
affects the order, directive or
decision;
(2)
Errors of law or
irregularities
have
been
committed prejudicial to the
interest of the movants. The
motion for reconsideration
shall be resolved within
three (3) days from filing;
Provided, That only one
motion for reconsideration
shall be entertained.

motion for reconsideration or

reinvestigation may only be
entertained if filed within ten
(10) days from receipt of the
decision by the respondent
on any of the following
grounds:
a)
New evidence had
been
discovered
which
materially affects the order,
directive or decision;
b)
Grave errors of facts
or
laws
or
serious
irregularities
have
been
committed prejudicial to the
interest of the movant.
Only
one
motion
for
reconsideration
or
reinvestigation
shall
be
allowed, and the hearing
officers shall resolve the
same within five (5) days
from receipt thereof.

x x x Any order, directive or

decision
imposing
the
penalty of public censure or
reprimand, suspension of not
more than one months
salary shall be final and
unappealable.
The above rules may be
amended or modified by the
Office of the Ombudsman as
the interest of justice may

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require

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