Title
Office of the Deputy Ombudsman for Luzon vs. Jesus D. Francisco, Sr.
Case
G.R. No. 172553
Decision Date
Dec 14, 2011
The Ombudsman appealed the Court of Appeals' decision which found in favor of Francisco in an administrative case regarding preventive suspension. The Court later dismissed the case as moot.
ombudsman
administrative case
preventive suspension

Case Summary (G.R. No. 172553)

Factual Background and Genesis of the Administrative Case

In November 1998, Ligorio Naval filed a complaint before the Ombudsman accusing Jessie Castillo, then mayor of the Municipality of Bacoor, Cavite, and others, of violating Sections 3(e), (g), and (j) of the Anti-Graft and Corrupt Practices Act, in relation to the award of the construction of the municipal building of Bacoor valued at more than 9 Million Pesos to St. Martha’s Trading and General Contractors. Naval alleged that the contractor was not qualified because its license had allegedly expired when the contract was signed and because the contractor allegedly belonged to Category “C,” which supposedly allowed only projects worth 3 Million Pesos or less. The complaint was docketed as OMB-1-98-2365.

Castillo submitted certifications to the effect that the contractor was not a holder of an expired license and was classified as a Category “A” contractor. On April 29, 1999, the Ombudsman ruled that Naval’s allegation regarding lack of qualification was satisfactorily controverted and dismissed the complaint. Naval later moved for reconsideration, which the Ombudsman denied on August 27, 1999. Subsequently, Naval engaged in communications with Deputy Ombudsman Margarito P. Gervacio, Jr., insinuating that his evidence had not been considered and that the complaint’s dismissal occurred in exchange for millions of pesos. Ombudsman Gervacio relayed these allegations to Ombudsman Aniano Desierto, who ordered a reevaluation of the April 29, 1999 decision.

A memorandum dated May 30, 2000 recommended reviving, re-docketing, and subjecting OMB-1-98-2365 to further preliminary investigation with additional respondents. On September 30, 2000, Ombudsman Gervacio approved the recommendation. Thereafter, the Fact-Finding and Intelligence Bureau executed a complaint-affidavit for gross negligence and conduct prejudicial to the interest of the service against five municipal officers, including respondent Jesus Francisco, docketed as OMB-C-A-05-0032-A.

The individuals charged were members of the PBAC of Bacoor, Cavite. The complaint asserted that in prequalification and bidding, St. Martha’s Trading and General Contractor’s license was not renewed and that the contractor was allegedly unqualified to undertake the P9.5 million project because it allegedly could only contract for projects worth P3 million or less. The complaint likewise sought preventive suspension pending investigation.

Preventive Suspension Order and Respondent’s Challenge

On May 30, 2005, Director Joaquin F. Salazar of the Office of the Deputy Ombudsman for Luzon issued an Order preventively suspending the PBAC members, including respondent. Deputy Ombudsman Victor C. Fernandez approved the order on May 31, 2005. The order suspended the respondents during the pendency of the case until termination but not to exceed six months without pay. It also provided that delays attributable to the respondents would not be counted toward the six-month limit. The order was immediately executory, and it stated that the implementation would not be interrupted by any motion, appeal, or petition unless otherwise ordered by the Office or a court of competent jurisdiction.

Respondent received the preventive suspension order on July 1, 2005. Instead of filing a motion for reconsideration, he filed before the Court of Appeals a petition for certiorari with application for a temporary restraining order and/or writ of preliminary injunction on July 22, 2005. He contended that the Deputy Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction by ordering preventive suspension because the transactions questioned had already been passed upon in OMB-1-98-2365, which was dismissed. He also argued that the preventive suspension was unjustified because: he was charged with gross negligence and conduct prejudicial to the interest of the service rather than the forms of misconduct that allegedly warranted suspension under the law; prejudice to the government was not shown; and his continued stay would not prejudice the case since the documentary evidence was allegedly not within his control. The CA did not issue a temporary restraining order or preliminary injunction.

Court of Appeals’ Decision: Res Judicata

On December 23, 2005, the Court of Appeals granted respondent’s petition and set aside the Deputy Ombudsman’s May 30, 2005 preventive suspension order. The CA held that the transaction involved in OMB-C-A-05-0032-A was the same transaction that had been the subject of OMB-1-98-2365, and it invoked res judicata to bar the subsequent administrative case.

The CA reasoned that the respondents in OMB-C-A-05-0032-A were administratively charged for gross negligence and conduct prejudicial to the interest of the service when they allegedly awarded the contract to construct the municipal hall to St. Martha’s Trading and General Contractor despite alleged disqualifications. It identified the core factual allegation as the contractor having an expired license at the time of bidding and at the time of contract signing, and it further pointed to the claimed “small B” or similar category limitation that supposedly restricted contracts to lower amounts. The CA stated that the Ombudsman in OMB-1-98-2365 had already decided precisely that issue, including evaluating that the contractor’s qualifications were satisfactorily controverted by defenses supported by submissions such as letters and certifications regarding the contractor’s classification.

The CA then recited the requisites of res judicata: (a) the first judgment must be final; (b) the court must have jurisdiction over the subject matter and over the parties; (c) the judgment or order must be on the merits; and (d) there must be identity of parties, identity of subject matter, and identity of action. It concluded that the dismissal order in OMB-1-98-2365 satisfied these requisites. It recognized that there could be an argument against absolute identity of parties, but it held that a shared identity of interest sufficed and that substitution of parties could not be allowed to defeat the operation of res judicata.

Petitioners’ Motion for Reconsideration and Filing of the Rule 45 Petition

After the CA decision, petitioners filed a motion for reconsideration on January 18, 2006, but the CA denied it in its Resolution dated May 3, 2006. Petitioners then filed the present petition for review on June 26, 2006 through the OSG, seeking reversal of the CA rulings.

Respondent filed a comment on January 8, 2007, and petitioners filed a reply on March 19, 2007. Upon elevation, the records disclosed a supervening event: the Deputy Ombudsman issued a Joint Resolution dismissing Administrative Case No. OMB-C-A-05-0032-A for lack of probable cause, approved by Acting Ombudsman Orlando C. Casimiro on February 28, 2008.

Issue in the Supreme Court and the Mootness Determination

In addressing the petition, the Court focused on whether reinstatement of the preventive suspension order still presented a justiciable controversy in light of the dismissal of the underlying administrative case. The Court held that the petition had been rendered moot. It explained that preventive suspension is a preliminary step that exists to prevent a respondent from using his position to influence witnesses or tamper with records while the case is being investigated and prosecuted. It relied on Ombudsman v. Pelino to clarify that preventive suspension is not meant to function as punishment.

The Court further grounded its analysis on **Section 24 of Republic Act No. 6770, which authorizes the Ombudsman or his Deputy to place a public officer under preventive suspension pending investigation when the evidence of guilt is strong and when the charge involves dishonesty, oppression, grave misconduct, or neglect, when the charges would warrant removal, or when continued stay may prejudice the case. The statute limits preventive suspension to a maximum of six months without pay, subject to the exception for delays attributable to the respondent. The Court similarly referenced Rule III, Section 9 of Ombudsman Administrative Order No. 7 (as amended by Administrative Order No. 17), which likewise frames preventive suspension as dependent on the strong evidence requirement and on one of the statutory/administrative grounds, and sets the same six-month cap.

In applying these provisions, the Court noted that the preventive suspension order dated May 30, 2005 had been received by respondent on July 1, 2005 and that because no restraining order or injunction was issued by the CA, the six-month period was not interrupted and the suspension period lapsed on December 28, 2005. More importantly, the Court emphasized that the administrative case itself had already terminated when it was dismissed by joint resolution approved on February 28, 2008. With the termination of the case, the preventive suspension

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