On the second ground, petitioner asserts that there is ample evidence to show that respondents are guilty of simple misconduct. Under R.A. No. 6770, the Ombudsman, through his representative, has ample authority to enter and inspect the premises of any office or agency and examine any book, record, file, document or paper in relation to any investigation. Under Section 26(4) of R.A. No. 6770, any officer or employee who delays or refuses to comply with the referral or directive of the Ombudsman or any of his deputies shall be a ground for disciplinary action against such officer or employee. The law does not require that such refusal or delay be deliberate or intentional. It is enough that the delay or refusal was committed by the requested government officer or employee. It insists that respondents' refusal to comply with the subpoena constituted nonfeasance, if not malfeasance; hence, the CA erred in reversing the decision of the Ombudsman finding them guilty of simple misconduct.

In their Comment on the petition, respondents aver that petitioner never raised in the CA the issue of whether the Ombudsman's decision finding them guilty of simple misconduct is not appealable. Petitioner is then estopped from raising the issue in this Court. Moreover, the subpoena issued by the FFIB does not conform to the requirements of Section 2, Rule 21 of the Rules of Court. The documents demanded by the FFIB are not prima facie evidence to prove the allegations about the "colorum dumpsites," and the subpoena issued by the FFIB were in the nature of a general warrant.

Respondents further assert that the decision of the CA absolving them of simple misconduct is correct. They acted in good faith when they opted not to comply with the subpoena; they had no other option but to seek the approval of the Mayor; otherwise, they could be administratively charged and sanctioned.

We agree with petitioner's contention that the decision of the Ombudsman finding respondents guilty of simple misconduct and ordering their suspension for one (1) month without pay is final and unappealable as provided in Section 27 of R.A. No. 6770 and Administrative Order No. 07, Section 7, Rule III of the Office of the Ombudsman implementing Section 27 of R.A. No. 6770. The rule reads:

SEC. 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. (Underscoring supplied)

From the foregoing provisions, it was held in Lapid v. Court of Appeals^[28] that orders, directives or decisions of the Office of the Ombudsman in administrative cases imposing the penalty of public censure, reprimand, or suspension of not more than one month, or a fine not equivalent to one month salary shall be final and unappealable. In all other cases, the aggrieved party is given the right to appeal within ten (10) days from receipt of the written notice of the order, directive or decision; thus, the judgment will become final after the lapse of the reglementary period of appeal, if no appeal is perfected or, an appeal therefrom having been taken.^[29] In the instant case, since the penalty imposed upon respondents was "one month suspension without pay" only, as a matter of law, the decision of the Ombudsman is final and unappealable. As held in Herrera v. Bohol,^[30] where petitioner therein was likewise found guilty of simple misconduct and suspended for one (1) month without pay, the decision of the Ombudsman can no longer be rectified, much less, reversed.

Since the decision of the Ombudsman suspending respondents for one (1) month is final and unappealable, it follows that the CA had no appellate jurisdiction to review, rectify or reverse the same.^[31] The Ombudsman was not estopped from asserting in this Court that the CA had no appellate jurisdiction to review and reverse the decision of the Ombudsman via petition for review under Rule 43 of the Rules of Court. This is not to say that decisions of the Ombudsman cannot be questioned. Decisions of administrative or quasi-administrative agencies which are declared by law final and unappealable are subject to judicial review if they fail the test of arbitrariness, or upon proof of gross abuse of discretion, fraud or error of law. When such administrative or quasi-judicial bodies grossly misappreciate evidence of such nature as to compel a contrary conclusion, the Court will not hesitate to reverse the factual findings.^[32] Thus, the decision of the Ombudsman may be reviewed, modified or reversed via petition for certiorari under Rule 65 of the Rules of Court, on a finding that it had no jurisdiction over the complaint, or of grave abuse of discretion amounting to excess or lack of jurisdiction.^[33]

Even if the Court considers the petition filed with the CA as one for certiorari under Rule 65 of the Rules of Court, respondents, nevertheless, failed to prove that the Office of the Ombudsman committed grave abuse of its discretion amounting to excess or lack of jurisdiction in its decision.

There is grave abuse of discretion on the part of the Office of the Ombudsman when it acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of its judgment amounting to lack of jurisdiction. Mere abuse of discretion is not enough.^[34] The only question involved is jurisdiction, either the lack or excess thereof, and abuse of discretion warrants the issuance of the extraordinary remedy of certiorari only when the same is grave, as when the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice or personal hostility. A writ of certiorari is a remedy designed for the correction of errors of jurisdiction and not errors of judgment.^[35] An error of judgment is one in which the court may commit in the exercise of its jurisdiction, and which error is reversible only by an appeal.^[36]

Section 27(2) of R.A No. 6770 provides that findings of facts by the Office of the Ombudsman are conclusive when supported by substantial evidence. Thus, as long as there is substantial evidence to support the Ombudsman's decision, it will not be reversed. The rationale of the rule was enunciated in Young v. Office of the Ombudsman:^[37]

The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant.^[38]

Under Section 18 of R.A. No. 6770, the Office of the Ombudsman is empowered to:

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as it may provide in its rules of procedure, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action;

(5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents;

x x x x

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency.

It must be stressed that the Office of the Ombudsman is endowed with a wide latitude of investigating power, virtually free from legislative, executive and judicial instruction.^[39] The Ombudsman and his deputies are designated by the Constitution as protectors of the people, who are thus required to act promptly on complaints against public officers of the government or any subdivision, agency or instrumentality thereof.^[40] The general investigation on the Office of the Ombudsman is precisely for the purpose of protecting those against whom a complaint is filed against hasty, malicious and oppressive prosecution as much as securing the State from useless and expensive trials.^[41] Moreover, the reason for the creation of the Ombudsman in the 1987 Constitution and for the grant to it of broad investigative authority is to insulate said office from the long tentacles of officialdom that are able to penetrate the judges' and other fiscals' offices, and others involved in the prosecution of erring public officials, and through the exertion of official pressure and influence, quash, delay or dismiss investigations into malfeasances and misfeasances committed by public officers.^[42]

To achieve the objectives of the Constitution, the Office of the Ombudsman is empowered to administer oaths, issue subpoena and subpoena duces tecum, and take testimony in any investigation or inquiry, including the power to examine and have access to bank accounts and records which may be delegated to the deputy or its investigator to ensure the effective exercise or performance of the power, functions, and duties therein as provided in the law.^[43] In any investigation under the law, the Ombudsman may examine and access any record, file, document or paper in any office, agency or commission or tribunal.^[44] Delay or refusal to comply with the referral or directive of the Ombudsman or any of his deputies constitutes a ground for administrative disciplinary action against the officers or employee concerned.^[45] Indeed, non-performance of an act which ought to be performed, omission to perform a required duty at all, or total neglect of duty constitutes nonfeasance.^[46]

The officer or employee concerned may be excused or justified for being unable to comply with the subpoena duces tecum. However, the inability which excuses must be real. Self-created inability will not suffice; nor will passivity when reasonable efforts might secure compliance. Any excuse or exception for non-compliance is distinctly exceptional being derogative of the mandate of the law and must be established by clear and convincing evidence.^[47]

In the instant case, respondents were ordered by the Office of the Ombudsman, through the FFIB, to submit certified true copies of the documents in their custody in connection with the on-going investigation against the Mayor and his wife. The documents subject of the subpoena were public documents in the custody of respondents. They were mandated to comply with the subpoena of the FFIB despite the Mayor's August 10, 1999 Memoranda prohibiting them from releasing important documents/records in their respective departments without his prior approval. Such a Memorandum is contrary to R.A. No. 6770. The duty of respondents to comply with the subpoena of the FFIB cannot be made subject to or dependent on the whims or caprice or prior approval of a higher officer. Indeed, in this case, the Mayor was unable to cite any law vesting him with the power to prohibit the municipal officers from furnishing the Ombudsman with certified copies of public documents in their custody without his prior approval.

It must be stressed that the Mayor is mandated to ensure that all officials and employees of the municipality faithfully discharge their duties and functions as provided by law and the Local Government Code. It appears, in this case, that the Mayor issued his Memoranda in anticipation, perhaps to derail the investigation of the Office of the Ombudsman relative to the complaints against him and his wife. By prohibiting respondents from complying with the subpoena, he prevented the FFIB agents from performing their constitutionally-mandated duty.

Respondents' request for the FFIB agents to ask the Mayor to allow them to release certified copies of the documents cannot serve to support their claim of good faith. The FFIB agents were merely complying with the subpoena issued by the FFIB. Moreover, their Mission Order did not require them to speak to the Mayor and secure prior approval before releasing public documents. The Mayor cannot withhold the release of any public documents even if they may incriminate him and his wife. Neither were respondents justified in withholding such documents from the FFIB, being as they are documents for the benefit of the public and subject to public inspection.^[48]

If respondents, indeed, were in good faith, it behooved them to file a motion with the FFIB to question its order and claim exemption from compliance with the subpoena because of the Mayor's Memoranda. In case of denial, respondents could then appeal to the Ombudsman; if this remedy failed, they could then have sought judicial relief. Respondents had no right to simply ignore the order and refuse to comply. Whether a witness has a reasonable excuse for failing to respond to a subpoena duces tecum is to be justified by the court or tribunal or government entity that issued it and not by the witness. While the witness may have a valid excuse for not showing the document sought by the subpoena, he is still bound to produce it.^[49]

Respondents are not mere employees of the municipality. They were heads of departments. They should have known that although the Mayor may have supervision over them, he had no power to prohibit them from complying with the lawful order of the FFIB. Respondents are mandated to obey only the lawful orders of the Mayor, and are as guilty as the former if they obey illegal orders. They knew that the Mayor had subsequently issued a Memorandum finally allowing them to comply with the subpoena of the FFIB; however, respondents De Castro and Makalatan's compliance was only partial, while respondent Francisco failed to comply. Such "half-hearted compliance" demonstrates respondents' defiance of the FFIB's order, despite the volte face of the Mayor. This conduct cannot be tolerated.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals is SET ASIDE.

SO ORDERED.

Panganiban, C.J., (Chairperson), Ynares-Santiago, Austria-Martinez, and Chico-Nazario, JJ., concur.

---

^[1] Penned by Associate Justice Rosmari D. Carandang, with Associate Justices Eugenio S. Labitoria and Mercedes Gozo-Dadole, concurring; rollo, pp. 161-176.

^[2] CA rollo, pp. 88-89.

^[3] Id. at 77.

^[4] Id. at 74-76.

^[5] Rollo, p. 38.

^[6] Id. at 78.

^[7] Id. at 79.

^[8] Id. at 37.

^[9] CA rollo, pp. 82-83.

^[10] Id. at 92-95.

^[11] Id. at 107.

^[12] Id. at 108.

^[13] Id. at 109.

^[14] Rollo, p. 46.

^[15] CA rollo, pp. 114-117.

^[16] Id. at 86-87.

^[17] Rollo, pp. 101-106.

^[18] Id. at 43.

^[19] CA rollo, p. 50.

^[20] Id. at 65-66.

^[21] Id. at 68-72.

^[22] Id. at 24.

^[23] Id. at 32-33.

^[24] Id. at 28-31.

^[25] Rollo, pp. 26-32.

^[26] L-29274, November 27, 1975, 69 SCRA 99, 106.

^[27] Id. at 15.

^[28] 390 Phil. 236, 247 (2000).

^[29] Lopez v. Court of Appeals, 438 Phil. 351, 359-360 (2002).

^[30] G.R. No. 155320, February 5, 2004, 422 SCRA 282.

^[31] Herrera v. Bohol, supra, 286.

^[32] De Guzman v. Commission on Elections, G.R. No. 159713, March 31, 2004, 426 SCRA 698, 707-708.

^[33] Rubio v. Paras, G.R. No. 156047, April 12, 2005, 455 SCRA 697, 708-709.

^[34] People v. Court of Appeals, G.R. No. 144332, June 10, 2004, 431 SCRA 610, 617.

^[35] Philippine Rabbit Bus Lines, Inc. v. Galauran & Pilares Construction Co., G.R. No. L-35630, November 25, 1982, 118 SCRA 664, 667.

^[36] People v. Court of Appeals, supra.

^[37] G.R. No. 110736, December 27, 1993, 228 SCRA 718.

^[38] Id. at 722-723, citing Ocampo v. Ombudsman, G.R. No. 103446-47, August 30, 1993.

^[39] Perez v. Office of the Ombudsman, G.R. No. 131445, May 27, 2004, 429 SCRA 357, 363.

^[40] CONSTITUTION, Section 12, Article XI.

^[41] Almonte v. Vasquez, G.R. No. 95367, May 23, 1995, 244 SCRA 286, 303-304.

^[42] Deloso v. Domingo, G.R. No. 90591, November 21, 1990, 191 SCRA 545, 550-551.

^[43] R.A. No. 6770, Sec. 15 (8).

^[44] R.A. NO. 6770, Sec. 23(3).

^[45] R.A. No. 6770, Sec. 26(4).

^[46] Black's Law Dictionary, 1979 ed. 950, citing Desmarain v. Wachusett Regional District, 276 N.E.2d 696.

^[47] People v. Rezek, 103 N.E. 2d 127 (1952).

^[48] See Wilson v. U. S., 221 U.S. 361 (1911).

^[49] Vaughan v. Broadfoot, Inc.,149 S.E. 2d 37 (1966).