THIRD DIVISION

[CA-G.R. SP No. 63873.  March 15, 2002.]

RENATO F. HERRERA, Director III, Department of Agrarian Reform, Diliman Quezon City, petitioner, vs. PLARIDEL ELMER J. BOHOL, respondent.

D E C I S I O N

GUERRERO, B.J., J p:

          Sought to be reversed through the instant petition for review under Rule 43 of the Rules of Court are the decision dated 11 June 1999 and order dated 08 January 2001 of the Ombudsman finding petitioner guilty of Simple Misconduct and denying the motion for reconsideration thereof, respectively, in OMB-ADM-0-99-0027 entitled "Plaridel Elmer J. Bohol, Complainant, versus Renato F. Herrera (LRO), Director III, Department of Agrarian Reform, Diliman, Quezon City, Respondent" for Misconduct, Incompetence, Inefficiency."

          As required, respondent Plaridel Elmer J. Bohol, the complainant below, filed his comment praying for the dismissal of the petition on the grounds, among others, that the ruling is final and unappealable.

          The antecedents are correctly stated by the Ombudsman in the questioned decision, in these words:

          "[T]he complainant, in a letter dated 13 January 1999, requested respondent Herrera for a shift of position from Fund 158 Item #577-1 to Fund 101. The said request appears to have been recommended for approval by SHARON JOY BERLIN-CHAO, Director, Bureau of Agrarian Reform Information & Education (BARIE), DAR, and was subsequently approved by respondent HERRERA (pp. 0007-0008, records). Complainant BOHOL then began drawing his salary under Fund 101 until April 17, 1997 when he was informed by the Department Cashier that he can no longer draw his salary thereunder since his item has been recalled and given to one Gregoria Ancheta. The complainant then wrote a protest-letter to the respondent and thereafter engaged the services of a lawyer to request the corresponding corrective measures. In reply, the respondent allegedly avoided responsibility and pointed to BARIE Director Sharon Joy Chao as the one who caused the shift of the complainant's item. The complainant thus charges the respondent with Grave Misconduct for providing unwarranted benefit in favor of Gregoria Ancheta and/or Inefficiency and Incompetence for his illegal act of recalling the complainant's position Item.

          In his counter-affidavit, the respondent adopted in substance his letter (pp. 0021-0024, records) addressed to the counsel of the complainant. In the said letter (supra) dated 21 May 1997, it was stated that the policy of DAR was to act on the recommendations of the recommending authority as far as shift of item is concerned. It was also stated therein that there was no request for recall, merely a request for the Civil Service Commission to hold in abeyance the processing of his letter pending resolution of the matter.

          The case was scheduled for preliminary conference on 27 April 1999 (pp. 0052-0053, records), wherein the respondent appeared. On the other hand, the complainant filed a Motion to Submit Case for Resolution. In the same conference, the respondent opted to submit the case for resolution after the filing of his Memorandum (p. 0056, records). Accordingly, the preliminary conference was terminated and the parties were directed to file their respective Memorandum (p. 0062, records).

          In his Memorandum (pp. 0070-0077, records), respondent Herrera averred that the complainant has availed of an adequate remedy consisting of a request to the DAR Secretary to undertake corrective measures which were, in fact, undertaken rendering the matter moot and academic; that the complaint is trivial and frivolous; that the issue has become moot and academic when the complainant agreed to a swap in item; that the respondent's acts are devoid of malice and were made in good faith; that he (respondent) acted on the shift in item only after receiving assurance from Director Sharon Joy Chao as may be gleaned from her affidavit (pp. 0090-0091, records); and that on the basis of the affidavit (p. 0092, records) of MILAGROS CABA, the respondent exercised diligence by verifying whether the changes in the items were duly cleared.

          Through counsel, the complainant filed his Memorandum (pp. 0094-0098, records) wherein he averred that it was only on 09 April 1997 when he (complainant) with prior notice discovered that the item he was occupying has been arbitrarily recalled in favor of one Gregoria Ancheta; that it was only the cashier of the office who informed the complainant; that his letter dated 09 April 1997 addressed to the respondent was not acted upon; and, that the claim of herein respondent that he (complainant) was informed of the recall of the item and that he (complainant) consented thereto is a lie.

          In his Comment (pp. 0112-0114, records) to the complainant's Memorandum, the respondent averred that he acted on the letter of the complainant by writing a letter to Sharon Joy Chao; that respondent's acts are devoid of malice and inefficiency; and, that another case entitled: 'PLARIDEL ELMER J. BOHOL versus Director RENATO F. HERRERA, OMB-0-97-1342' involving the same parties and cause of action had been filed with this office resulting in splitting of causes of action." 1

          Petitioner herein as respondent in that investigation filed his counter-affidavit. In the preliminary conference on 27 April 1999 before a graft investigation officer, the parties opted to submit the case on the basis of the records and asked that they be given time to file memoranda. Both did with petitioner further filing a comment to his opponent's memorandum.

          In due course, the Ombudsman promulgated the contested decision and order, hence the instant petition citing as "serious errors committed by the Honorable Ombudsman," the following:

"THE OMBUDSMAN'S ACTION ON THE COMPLAINT WAS PREMATURE.

THE OMBUDSMAN ERRED IN HIS FINDING THAT THE RESPONDENT WAS NOT INFORMED THAT HIS ITEM IS BEING RECALLED.

THE OMBUDSMAN ERRED WHEN HE RULED THAT PETITIONER HERRERA FAILED TO INTRODUCE CORRECTIVE MEASURES IN ORDER TO RESOLVE PETITIONER BOHOL'S COMPLAINT.

THE FINDINGS OF THE OFFICE OF THE OMBUDSMAN IS CONTRARY TO ESTABLISHED JURISPRUDENCE." 2

          The petition must be dismissed.

          In Lapid vs. Court of Appeals, 3 the Supreme Court held that under Section 27 of the Ombudsman Act, 4 if the administrative penalty is public censure or reprimand or suspension of not more than one month's salary, the decision shall be final and unappealable. Here, the administrative penalty imposed is "suspension for one [1] month without pay . . .." Hence, to entertain this appeal is a defiance of the decision of the Supreme Court which in Caltex (Philippines), Inc. vs. Palomar, 5 the same tribunal held, viz:

          "In effect, judicial decisions assume the same authority as the statute itself and, until authoritatively abandoned, necessarily become, to the extent that they are applicable, the criteria which must control the actuations not only of those called upon to abide thereby but also of those in duty-bound to enforce obedience thereto." (Emphasis supplied)

          Pertinently, We had occasion to examine Section 27 of R.A. 6770 in relation to Section 7, Rule III of Administrative Order No. 07, the Rules of Procedure of the Office of the Ombudsman in "Miguel Froilan, Chief of Hospital Natalio P. Castillo Memorial Hospital, Loon Bohol, Petitioner versus Aleth Moore, Office of the Ombudsman (Visayas), Respondent," 6 and held:

          "However, after going through the merits of the case, We have found that petitioner committed a more serious blunder — the case is not even appealable. Section 27 of R.A. No. 6770, in part, provides thus:

          'Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one [1] month's salary shall be final and unappealable.'

          Section 7, Rule III of Administrative Order No. 07, the Rules of Procedure of the Office of the Ombudsman, adds that:

          'Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, SUSPENSION OF NOT MORE THAN ONE [1] MONTH, or a fine equivalent to ONE MONTH SALARY, the decision shall be final and unappealable. In all other cases, the  decision may be appealed within ten [10] days from receipt of the written notice of the Decision or Order denying the Motion for Reconsideration.'

          Clearly, the instant case is unappealable because the penalty of fifteen [15] days suspension imposed on petitioner is within the purview of the foregoing provisions. But this does not mean that all decisions of the Ombudsman in disciplinary cases are unappealable. The same Section 27 of R.A. No. 6770 allows appeals in all other cases, which means that penalties of public censure, reprimand, suspension of not more than one [1] month, or fine equivalent to one [1] month salary are the exceptions to the rule. However, petitioner seems to distort the issue, as when he frames it to be a question of whether or not the decision of the Ombudsman is appealable. Since the decisions of the Ombudsman are generally appealable, subject to the above exceptions, petitioners' submission that they are appealable does not contribute anything constructive to the discussion. He failed to realize, despite the unmistakable wording of Section 27, that the instant controversy falls under the exception.

          Thus, since no appeal is available in the instant case, petitioner's appropriate post-judgment remedy is a petition for certiorari under Rule 65. The unavailability of appeal in a case is not synonymous with the total absence of remedies for the aggrieved party. In insisting that the instant case is appealable, petitioner could have been asserting his right to a post-judgment remedy, but his failure to distinguish the appropriate one has irretrievably denied him access to it."

          Assuming in argumenti that appeal through the present petition is tenable, still the outcome would be the same when tested under the above alleged errors.

          On the claim of premature action of the Ombudsman on the complaint against petitioner herein, it is noteworthy that he has not cited any rule, regulation or law violated to support his claim of prematurity. The Ombudsman has in his favor the presumption of regularity in the performance of his official duty. 7

          The second assigned error is misleading. Nothing in the questioned rulings of the Ombudsman did he say that "respondent was not informed that his item is [sic] being recalled." What the Ombudsman said on this score is this:

          "It is clear from the records of the case that the complainant vigorously protested against the recall of his item as evidenced by his letter dated 07 April 1997 addressed to the respondent (pp. 0018-0019, records). This belies the claim of the respondent that the complainant was informed of the change in item and that the latter acceded thereto. It must be stressed herein that if there is truth to the respondent's claim, then the complainant would not have made any protest to the change in item." 8

          It is self-evident that the above pronouncement of the Ombudsman does not, and cannot be construed to mean, in the context that petitioner postulates in his second alluded error.

          Coming to the third imputed error, there is no showing by petitioner that he responded to the letter of Bohol dated 07 April 1997, objecting to the recall of the re-alignment of items pursuant to which he had been receiving salaries under the re-aligned items. Under Rule VI, Section 3, par. (a), sub-par. 2 of the Rules Implementing the Code of Conduct and Ethical Standards for Public Officials and Employees of the Civil Service Commission, petitioner was duty bound to "write a note or letter of acknowledgment, informing the interested party . . . of the action to be taken or when such requests, positions, motions can be acted upon" in a reply to Bohol's letter. With such letter, Bohol could have been saved from the embarrassment of trying to draw the salary under the re-aligned item.

          WHEREFORE, the petition is hereby DISMISSED. Costs against petitioner.

          SO ORDERED.

          Cosico and De Los Santos, JJ., concur.

Footnotes

1.         Rollo, pp. 24-27

2.         Rollo, p. 13

3.         334 SCRA 738

4.         R.A. No. 6770

5.         18 SCRA 247

6.         CA-G.R. SP No. 61727, October 29, 2001

7.         Rule 131, Section 3 (N), Rules of Court; Hernandez vs. Navarro, 48 SCRA 44

8.         Rollo, p. 28