COBARDE-GAMALLO v. ESCANDOR

CINDY SHIELA COBARDE-GAMALLO v. JOSE ROMEO C. ESCANDOR

GR No. 184464

June 21, 2017

Facts:

Two cases arose from an administrative complaint for Violation of Republic Act No. 7877 (Anti-Sexual Harassment Act of 1995) filed by Cindy Sheila Cobarde-Gamallo (Cobarde-Gamallo), a contractual employee of the National Economic Development Authority, Regional Office No. 7 (NEDA 7), for the UNICEF-assisted Fifth Country Program for Children (CPC V), against Jose Romeo C. Escandor (Escandor), Regional Director of NEDA 7, before the Office of the Deputy Ombudsman for the Visayas (OMB-Visayas), docketed as OMB-V-A-04-0492-I.

In a Decision dated March 21, 2007, there being substantial evidence, the OMB-Visayas, through Graft Investigation and Prosecution Officer II Cynthia C. Maturan-Sibi, adjudged Escandor guilty of grave misconduct and meted him with the penalty of dismissal from the service with all its accessory penalties. This OMB-Visayas Decision was later approved by the then Ombudsman Ma. Merceditas N. Gutierrez (Gutierrez) on June 14, 2007. Pursuant to Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman, as amended by Administrative Order (AO) No. 17, the Office of the Ombudsman (OMB) issued on even date an Order directing the implementation of the aforesaid Decision, particularly Escandor's dismissal from the service, through the then Director General/Secretary of NEDA Romulo L. Neri (Neri).

Aggrieved, Escandor went to the CA via a Petition for Certiorari (with application for Temporary Restraining Order and Preliminary Injunction) under Rule 65 of the Rules of Court, seeking to set aside, reverse and declare null and void the OMB Order dated June 14, 2007 directing the immediate implementation and execution of the OMB-Visayas Decision dated March 21, 2007 (approved on June 14, 2007) dismissing him from the service. In support of his petition, Escandor claimed that he timely moved for reconsideration of the said Decision; thus, it would be premature for the OMB and the NEDA to dismiss him from the service. Escandor also cited several rulings of this Court to sustain his position that the penalty of dismissal cannot be immediately executed pending any appeal or motion for reconsideration. Lastly, Escandor sought the nullification of Section 7, Administrative Order No. 17 of the OMB for being allegedly contrary to this Court's ruling in the cases cited by him.

Finding merit in Escandor's petition, the CA, in its now assailed Decision dated March 25, 2008, partly granted the same, and, thus, enjoined Ombudsman Gutierrez and Secretary Neri from executing the Decision dated March 21, 2007, as well as the Order dated June 14, 2007, in OMB-V-A-04-0492-I until after the said Decision becomes final and executory. The CA held that there are good grounds to prevent Ombudsman Gutierrez and Secretary Neri from enforcing the Decision dated March 21, 2007, as it has not yet become final and executory considering the pendency of Escandor's Motion for Reconsideration thereof. The CA based its Decision from the same cases cited by Escandor in his petition where this Court declared that penalties other than public censure, reprimand, or suspension of not more than one month, or a fine not equivalent to one month salary, cannot be immediately executed pending any appeal or motion for reconsideration. With these, the CA considered it grave abuse of discretion to insist Escandor's dismissal from the service despite the unequivocal pronouncements of this Court on the matter and Escandor's pending motion for reconsideration with the OMB. The CA, however, declined to nullify Section 7, Administrative Order No. 17 of the OMB.

Cobarde-Gamallo, Ombudsman Gutierrez and Secretary Neri sought reconsideration of the aforesaid CA Decision but it was denied for lack of merit in the now questioned CA Resolution dated August 28, 2008.

Issue:

Whether or not the OMB's Decision and Order of Dismissal against Escandor can be immediately implemented despite the pendency of his Motion for Reconsideration and/or Appeal.

Held:

Section 7, Rule III of the OMB Rules of Procedure, as amended by AO No. 17 dated September 15, 2003, explicitly provides.

Section 7. Finality and execution of decision. - 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 month, or a fine equivalent to one month salary, the decision shall be final, executory and unappealable. In all other cases, the decision may be appealed to the Court of Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the written Notice of the Decision or Order denying the Motion for Reconsideration.

An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal.

A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be a ground for disciplinary action against said officer.

It can be gleaned from the afore-quoted provision that the OMB's decisions in administrative cases may either be unappealable or appealable. The unappealable decisions are final and executory, to wit: (1) respondent is absolved of the charge; (2) the penalty imposed is public censure or reprimand; (3) suspension of not more than one month; and (4) a fine equivalent to one month's salary. The appealable decisions, on the other hand, are those falling outside the aforesaid enumeration, and may be appealed to the CA under Rule 43 of the Rules of Court, within 15 days from receipt of the written notice of the decision or order denying the motion for reconsideration. Section 7 is categorical in providing that an appeal shall not stop the decision from being executory, and that such shall be executed as a matter of course.

Also, Memorandum Circular (MC) No. 01, Series of 2006, of the OMB states:

Section 7, Rule III of Administrative Order No. 07, otherwise known as, the "Ombudsman Rules of Procedure" provides that: "A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course."

In order that the foregoing rule may be strictly observed, all concerned are hereby enjoined to implement all Ombudsman decisions, orders or resolutions in administrative disciplinary cases, immediately upon receipt thereof by their respective offices.

The filing of a motion for reconsideration or a petition for review before the Office of the Ombudsman does not operate to stay the immediate implementation of the foregoing Ombudsman decisions, orders or resolutions.

Here, Escandor was ordered dismissed from the service. Undoubtedly, such decision against him is appealable via Rule 43 to the CA. Nonetheless, the same is immediately executory even pending appeal or in his case even pending his motion for reconsideration before the OMB as that is the clear mandate of Section 7, Rule III of the OMB Rules of Procedure, as amended, as well as the OMB's MC No. 01, Series of 2006. As such, Escandor's filing of a motion for reconsideration does not stay the immediate implementation of the OMB's order of dismissal since "a decision of the [OMB] in administrative cases shall be executed as a matter of course" under the afore-quoted Section 7.

Further, in applying Section 7, there is no vested right that is violated as the respondent in the administrative case is considered preventively suspended while his case is on appeal and, in the event he wins on appeal, he shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal. To note, there is no such thing as a vested interest in an office, or even an absolute right to hold office. Except for constitutional offices that provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office. Hence, no vested right of Escandor would be violated as he would be considered under preventive suspension and entitled to the salary and emoluments that he did not receive, by reason of his dismissal from the service, in the event that his Motion for Reconsideration will be granted or that he wins in his eventual appeal.