FIRST DIVISION
[ G.R. No. 159395, May 07, 2008 ]OFFICE OF OMBUDSMAN v. CA +
OFFICE OF THE OMBUDSMAN, PETITIONER, VS. COURT OF APPEALS AND DR. MERCEDITA J. MACABULOS RESPONDENTS.
D E C I S I O N
OFFICE OF OMBUDSMAN v. CA +
OFFICE OF THE OMBUDSMAN, PETITIONER, VS. COURT OF APPEALS AND DR. MERCEDITA J. MACABULOS RESPONDENTS.
D E C I S I O N
CARPIO, J.:
This is a petition for review[1] of the Decision[2] dated 17 March 2003 and the Resolution dated 30 July 2003 of the Court of Appeals in CA-G.R. SP No. 66411.
The Facts
On 31 March 1998, Dr. Minda L. Virtudes (Dr. Virtudes) executed a complaint-affidavit[3] charging Dr. Mercedita J. Macabulos (Dr. Macabulos) with dishonesty, grave misconduct, oppression, conduct grossly prejudicial to the best interest of the service and acts unbecoming a public official in violation of the Civil Service Laws and the Code of Conduct and Ethical Standards for Public Officials and Employees.
Dr. Macabulos, who held the position of Medical Officer V at the Department of Education, Culture and Sports, National Capital Region (DECS-NCR), was the Chief of the School Health and Nutrition Unit. Dr. Virtudes was then Supervising Dentist III working under the supervision of Dr. Macabulos. Dr. Virtudes asserted in her complaint that in May 1997, Dr. Macabulos required her to submit dental and medical receipts for the liquidation of Dr. Macabulos' cash advance in the year 1995 amounting to P45,000 for the purchase of dental medicines and supplies. Dr. Virtudes did not submit receipts and invoices considering that she was not yet assigned at the School Health and Nutrition Unit, DECS-NCR when Dr. Macabulos incurred the cash advance.
Because of Dr. Virtudes' failure to produce receipts and invoices, Dr. Macabulos allegedly subjected Dr. Virtudes to several forms of harassment by: 1) denying her request for the purchase of dental supplies and equipment; 2) requiring her and her co-workers to sign an "Attendance Log Book" every time they arrived at the office and again before leaving the office even if they were already using the employees' bundy clock and signing the Attendance Sheet in the office; 3) threatening Dr. Virtudes and her co-workers with transfer of assignment; 4) sending letters to Dr. Virtudes threatening to charge her with insubordination and disrespect; and 5) threatening to kill her and her husband or do other harm to her and her family.
In her counter-affidavit, Dr. Macabulos denied forcing Dr. Virtudes to make a liquidation as the latter was not yet assigned to her unit at the time the cash advance was made. Dr. Macabulos likewise claimed that while the P45,000 cash advance was in her name being the only bonded employee in their unit, it was Dr. Antonia Lopez-Dee (Dr. Dee), who was then the Supervising Dentist, who used the money to purchase medical and dental supplies. Attached to Dr. Macabulos' counter-affidavit was an unnotarized affidavit[4] of Dr. Dee which admitted, among others, that she requested Dr. Macabulos to make the cash advance.
Dr. Macabulos attributed the filing of the complaint against her to professional jealousy. Dr. Virtudes allegedly resented Dr. Macabulos' order, requiring all employees under her supervision to sign an attendance log book. Dr. Macabulos imposed the new requirement as a remedial measure to curb Dr. Virtudes' alleged practice of leaving the office without permission to engage in private practice at the Philippine Lung Center where Dr. Virtudes' husband was also a dentist. Dr. Macabulos denied that she instigated the transfer of Dr. Virtudes and her two friends to other units and alleged that it was Dr. Virtudes and her friends who requested for the transfer of assignment.
In her reply-affidavit, Dr. Virtudes alleged that Dr. Macabulos, in enforcing the use of the attendance log book, singled her out although there were others who failed to sign the log book. Dr. Virtudes denied engaging in private practice. Dr Virtudes pointed out that she confronted Dr. Dee, who disowned the contents of her alleged affidavit which Dr. Macabulos attached to her counter-affidavit. Dr. Virtudes claimed that it was Dr. Macabulos who made the P45,000 cash advance, improperly spent the amount, and later tried to liquidate the same with the tampered Sales Invoice No. 3366 issued by Medsordent Center to conform to the amount of the cash advance.
On 29 December 2000, Graft Investigation Officer I Ulysis S. Calumpad (GIO I Calumpad) rendered a decision absolving Dr. Macabulos from the administrative charge. However, Overall Deputy Ombudsman Margarito P. Gervacio, Jr. (Overall Deputy Ombudsman Gervacio) disapproved the decision of GIO I Calumpad.
Investigating further, the Ombudsman required Dr. Dee to confirm her statements in her unnotarized affidavit dated 14 September 1998. In reply, Dr. Dee disowned the statements in her unnotarized affidavit. In her sworn affidavit[5] dated 9 May 2001, Dr. Dee stated that although she signed the unnotarized affidavit dated 14 September 1998, the contents of the first page were entirely different from the one attached by Dr. Macabulos in her counter-affidavit. Dr. Dee asserted that as Supervising Dentist, her job involved the requisition of the necessary health and dental supplies but not the purchasing of supplies which was done by the purchasing unit of the School Health and Nutrition Unit which was under Dr. Macabulos. Dr. Dee denied encashing the check for P45,000 which was in the name of Dr. Macabulos. Dr. Dee likewise denied purchasing the supplies indicated in the Medsordent Center sales invoice which was submitted by Dr. Macabulos to liquidate her P45,000 cash advance.
In a Memorandum[6] dated 13 June 2001, Graft Investigation Officer II Julita M. Calderon (GIO II Calderon) reversed the decision of GIO I Calumpad. GIO II Calderon found Dr. Macabulos guilty of dishonesty, falsification, grave misconduct, conduct grossly prejudicial to the best interest of the service and violation of reasonable office rules and regulations defined and penalized under the Civil Service Laws. The Memorandum, approved by Overall Deputy Ombudsman Gervacio and Ombudsman Aniano A. Desierto, imposed upon Dr. Macabulos the penalty of dismissal from government service.
On 11 July 2001, Dr. Macabulos filed a motion for reconsideration, which was denied in an Order dated 26 July 2001.
On 31 August 2001, Dr. Macabulos filed a petition for review with the Court of Appeals. On 17 March 2003, the Court of Appeals rendered a decision, the dispositive portion of which reads:
The Ruling of the Court of Appeals
The Court of Appeals held that under Section 20(5) of Republic Act No. 6770 (RA 6770),[8] the Office of the Ombudsman (Ombudsman) can no longer investigate the complaint since the acts complained of were committed more than one year from the filing of the complaint. The Court of Appeals found irregular the reversal of the earlier decision of GIO I Calumpad, absolving Dr. Macabulos from the administrative charge, mainly on the basis of the recantation of Dr. Dee of her previous statements contained in an affidavit.
The Court of Appeals held that Dr. Macabulos' retirement from government service did not render the administrative case moot and academic.
Lastly, citing Section 27 of RA 6770, the Court of Appeals ruled that the Memorandum Order dated 13 June 2001 of the Ombudsman, imposing upon Dr. Macabulos the penalty of dismissal from government service, is not immediately executory.
The Issues
Petitioner raises the following issues:
The Ruling of the Court
We find the petition meritorious. The Court of Appeals should have granted the motion for intervention filed by the Ombudsman. In its decision, the appellate court not only reversed the order of the Ombudsman but also delved into the investigatory power of the Ombudsman. Since the Ombudsman was not impleaded as a party when the case was appealed to the Court of Appeals in accordance with Section 6, Rule 43 of the Rules of Court,[10] the Ombudsman had no other recourse but to move for intervention and reconsideration of the decision in order to prevent the undue restriction of its constitutionally mandated investigatory power.[11]
Prescription
The Court of Appeals held that under Section 20(5) of RA 6770, the Ombudsman is already barred by prescription from investigating the complaint since it was filed more than one year from the occurrence of the complained act. We find this interpretation by the appellate court unduly restrictive of the duty of the Ombudsman as provided under the Constitution to investigate on its own, or on complaint by any person, any act or omission of any public official or employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.[12]
Section 20 of RA 6770 reads:
In Filipino v. Macabuhay,[14] the Court interpreted Section 20(5) of RA 6770 in this wise:
Substantial Evidence Proving Guilt of Dr. Macabulos
Contrary to the appellate court's ruling, there was substantial evidence to hold Dr. Macabulos administratively liable. In the Memorandum dated 13 June 2001, the Ombudsman found that Dr. Macabulos purchased dental items (dentrate and castone) which were not included in the DECS Dental Program, using the P45,000 cash advance intended for the DECS Dental Program. Dr. Macabulos was required to refund the amount for items which were disallowed by the Commission on Audit (COA). Furthermore, the cash advance made on 28 March 1995 which was allegedly used for purchases made on 9 September 1995, was only liquidated in September 1997. The delay in the liquidation of the cash advance was a violation of Section 89 of Presidential Decree No. 1445 (PD 1445).[18] The Ombudsman also found that the dental supplies allegedly purchased were neither inspected nor received by the Supply and Property Unit of DECS-NCR.[19]
Upon further investigation by the Ombudsman, it was also discovered that Dr. Macabulos misled the Ombudsman by submitting a falsified affidavit of Dr. Dee to support Dr. Macabulos' claim that it was Dr. Dee who requested the cash advance, encashed the check, and bought dental supplies. In her subsequent sworn affidavit, Dr. Dee stated that when she was made to sign the other affidavit, the contents of the first page were entirely different from the one submitted by Dr. Macabulos. Dr. Dee denied encashing the check which was under the name of Dr. Macabulos. As then Supervising Dentist, Dr. Dee's job was to request for health and dental supplies but the purchasing of supplies was done by the purchasing unit of the School Health and Nutrition Unit which was under Dr. Macabulos. Contrary to Dr. Macabulos' claim, Dr. Dee emphatically denied that she purchased dental supplies using the P45,000 cash advance of Dr. Macabulos.
Indeed, the records reveal that on 13 March 1998, the DECS-NCR Resident COA Auditor issued an Audit Observation Memorandum (Audit Memorandum),[20] stating that Invoice No. 3366 of Medsordent Center purportedly issued on 9 September 1995 in the amount of P45,015 was deliberately tampered to conform to the amount of cash advance sought to be liquidated by Dr. Macabulos. The Audit Memorandum also stated that the items dentrate and castone, which are generally used by dental practitioners in making dental impression, were not included in the DECS Dental Program. Dr. Macabulos then reimbursed the P2,037.50 representing the price of dentrate and castone which COA disallowed. However, on 3 November 1998, the Resident Auditor, by virtue of Section 52(2) of PD 1445,[21] issued a management letter opening the account of Dr. Macabulos. On 3 February 1999, Dr. Macabulos paid P42,962.50[22] as final settlement of her cash advance.[23]
Thus, it appears from the records that Dr. Macabulos tried to liquidate with a tampered invoice the cash advance she made two years earlier. The tampered invoice also contained certain items which COA disallowed because the items were not included in the Medical and Dental Program of DECS-NCR. It is highly questionable whether the dental supplies purportedly purchased from Medsordent Center were really distributed to the regional office and the division offices since the Supply Officer of the DECS-NCR issued a certification that the items enumerated in the invoice were neither inspected nor received by the Supply and Property Unit. Furthermore, to evade responsibility, Dr. Macabulos submitted a falsified affidavit of Dr. Dee to make it appear that it was Dr. Dee who requested the cash advance to purchase dental supplies. After the COA issued a management letter opening Dr. Macabulos' account, Dr. Macabulos had to reimburse not only the amount of the disallowed items but also the whole amount of the cash advance.
Clearly, there was substantial evidence to hold Dr. Macabulos liable for dishonesty, falsification, grave misconduct, conduct grossly prejudicial to the best interest of the service, and violation of reasonable office rules and regulations defined and penalized under the Civil Service Laws. Under Section 27 of RA 6770, findings of fact by the Ombudsman when supported by substantial evidence are conclusive.
Penalty of Dismissal and its Accessory Penalties
In Resolution No. 91-1631 dated 27 December 1991, the Civil Service Commission (CSC) promulgated the Omnibus Civil Service Rules and Regulations (Omnibus Rules), pursuant to Section 12(2), Chapter 3, Title I(A), Book V of Executive Order No. 292 (EO 292).[24] Under Section 22, Rule XIV of the Omnibus Rules, dishonesty, falsification of official document, and grave misconduct are grave offenses punishable by dismissal. Conduct grossly prejudicial to the best interest of the service is also a grave offense punishable by suspension for 6 months and 1 day to 1 year for the first offense while violation of reasonable office rules and regulations is only a light offense punishable by reprimand for the first offense. Under Section 17 of Rule XIV of the Omnibus Rules, if the respondent is found guilty of two or more charges or counts, the penalty to be imposed should be that corresponding to the most serious charge or count and the rest shall be considered as aggravating circumstances. Although the CSC, through Resolution No. 99-1936 dated 31 August 1999, adopted the new "Uniform Rules in Administrative Cases in the Civil Service" (Uniform Rules), which took effect on 27 September 1999, the penalties imposed for the offenses charged in this case are the same under the new Uniform Rules.[25] Thus, the Ombudsman correctly imposed upon Dr. Macabulos the penalty of dismissal.
Under Section 9, Rule XIV of the Omnibus Rules, the penalty of dismissal from service carries with it the cancellation of eligibility, forfeiture of leave credits and retirement benefits, and the disqualification for reemployment in the government service.[26] However, under the new Uniform Rules, forfeiture of leave credits was deleted as an accessory penalty. Thus, under Section 58, Rule IV of the Uniform Rules, the penalty of dismissal shall carry with it the cancellation of eligibility, forfeiture of retirement benefits, and the perpetual disqualification for reemployment in the government service, unless otherwise provided in the decision.
Similarly, Section 10, Rule III of the Rules of Procedure of the Office of the Ombudsman, as amended by AO 17, provides that "the penalty of dismissal from the service shall carry with it that of cancellation of eligibility, forfeiture of retirement benefits, and the perpetual disqualification for reemployment in the government service, unless otherwise provided in the decision."
In this case, since Dr. Macabulos has already retired from the government service, her retirement benefits are forfeited but she is still entitled to receive her leave credits. She is also perpetually disqualified for reemployment in the government service and her civil service eligibility is cancelled.
Penalty of Dismissal is Executory Pending Appeal
The Court of Appeals held that the order of the Ombudsman imposing the penalty of dismissal is not immediately executory. The Court of Appeals applied the ruling in Lapid v. Court of Appeals,[27] that all other decisions of the Ombudsman which impose penalties that are not enumerated in Section 27 of RA 6770 are neither final nor immediately executory.
In Lapid v. Court of Appeals, the Court anchored its ruling mainly on Section 27 of RA 6770, as supported by Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman. The pertinent provisions read:
The Court held in Lapid v. Court of Appeals that the Rules of Procedure of the Office of the Ombudsman "mandate that decisions of the Office of the Ombudsman where the penalty imposed is other than public censure or reprimand, suspension of not more than one month salary are still appealable and hence, not final and executory."[28]
Subsequently, on 17 August 2000, the Ombudsman issued Administrative Order No. 14-A (AO 14-A),[29] amending Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman. The amendment aims to provide uniformity with other disciplining authorities in the execution or implementation of judgments and penalties in administrative disciplinary cases involving public officials and employees. Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman, as amended by AO 14-A, reads:
More recently, in the 2007 case of Buencamino v. Court of Appeals,[32] the primary issue was whether the decision of the Ombudsman suspending petitioner therein from office for six months without pay was immediately executory even pending appeal in the Court of Appeals. The Court held that the pertinent ruling in Lapid v. Court of Appeals has already been superseded by the case of In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of DPWH, which clearly held that decisions of the Ombudsman are immediately executory even pending appeal.
Based on the foregoing, we hold that the Ombudsman's order imposing the penalty of dismissal on Dr. Macabulos was immediately executory even pending appeal in the Court of Appeals.
WHEREFORE, we GRANT the petition. We SET ASIDE the Decision dated 17 March 2003 and the Resolution dated 30 July 2003 of the Court of Appeals in CA-G.R. SP No. 66411. We REINSTATE the Memorandum Order dated 13 June 2001 and the Order dated 26 July 2001 of the Office of the Ombudsman, dismissing Dr. Mercedita J. Macabulos from the government service. Since Dr. Mercedita J. Macabulos has already retired from the government service, her retirement benefits are forfeited except her accrued leave credits. She is also perpetually disqualified for reemployment in the government service and her civil service eligibility is cancelled.
SO ORDERED.
Puno, CJ., (Chairperson), Azcuna, Velasco, Jr.*, and Leonardo-De Castro, JJ., concur.
*As replacement of Justice Renato C. Corona who is on leave per Administrative Circular No. 84- 2007.
[1] Under Rule 45 of the 1997 Rules of Civil Procedure.
[2] Penned by Associate Justice Bernardo P. Abesamis with Associate Justices Juan Q. Enriquez, Jr. and Edgardo F. Sundiam, concurring.
[3] Rollo, pp. 135-138.
[4] Id. at 245-246.
[5] Id. at 248.
[6] Id. at 123-129.
[7] Id. at 73.
[8] The Ombudsman Act of 1989.
[9] Rollo, pp. 18-19.
[10] Section 6, Rule 43 of the Rules of Court provides that the petition for review to the Court of Appeals shall state the full names of the parties to the case, without impleading the court or agencies either as petitioners or respondents.
[11] In Office of the Ombudsman v. Court of Appeals (G.R. No. 167844, 22 November 2006, 507 SCRA 593), where the Ombudsman sought intervention in the Court of Appeals and moved for reconsideration of the latter's decision, the Court of Appeals granted the motion for intervention even if it denied the motion for reconsideration.
[12] See Section 13, Article XI of the Constitution.
[13] De Ocampo v. Secretary of Justice, G.R. No. 147932, 25 January 2006, 480 SCRA 71.
[14] G.R. No. 158960, 24 November 2006, 508 SCRA 50.
[15] Id. at 57-58.
[16] Entitled "Amendment of Rule III, Administrative Order No. 07," and signed by Ombudsman Simeon V. Marcelo on 15 September 2003.
[17] Procedure in Administrative Cases.
[18] PD 1445, known as the "Government Auditing Code of the Philippines," provides under Section 89 that a cash advance shall be reported and liquidated as soon as the purpose for which it was given has been served.
[19] Rollo, p. 164. Per certification dated 8 September 1997 of the Supply Officer.
[20] Id. at 141-144.
[21] Section 52(2) of PD 1445 reads:
Section 52. Opening and revision of settled account. - x x x
(2) When any settled account appears to be tainted with fraud, collusion, or error calculation, or when new and material evidence is discovered, the Commission may, within three years after the original settlement, open the account, and after a reasonable time for reply or appearance of the party concerned may certify thereon a new balance. An auditor may exercise the same power with respect to settled accounts pertaining to the agencies under his audit jurisdiction.
[22] P45,000 (cash advance) - P2,037.50 (amount reimbursed) = P42,962.50 (remaining balance).
[23] See Affidavit of Auditor Ma. Victoria S. De Pano. Records, pp. 552-554.
[24] EO 292 is known as the "Administrative Code of 1987." Under Section 12(2), Chapter 3, Title I(A), Book V of EO 292, the Civil Service Commission has the power and function to prescribe and enforce rules and regulations for carrying into effect the provisions of the Civil Service Law and other pertinent laws.
[25] See Section 55, Rule IV of the Uniform Rules.
[26] Section 58, Rule IV of the Uniform Rules on Administrative Cases in the Civil Service.
[27] G.R. No. 142261, 29 June 2000, 334 SCRA 738.
[28] Id. at 755.
[29] Rollo, pp. 377-378.
[30] G.R. No. 150274, 4 August 2006, 497 SCRA 626.
[31] Section 47 of the Uniform Rules on Administrative Cases in the Civil Service reads:
Section 47. Effect of Filing. - An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal, in the event he wins the appeal. (Emphasis supplied)
[32] G.R. No. 175895, 12 April 2007, 520 SCRA 747.
On 31 March 1998, Dr. Minda L. Virtudes (Dr. Virtudes) executed a complaint-affidavit[3] charging Dr. Mercedita J. Macabulos (Dr. Macabulos) with dishonesty, grave misconduct, oppression, conduct grossly prejudicial to the best interest of the service and acts unbecoming a public official in violation of the Civil Service Laws and the Code of Conduct and Ethical Standards for Public Officials and Employees.
Dr. Macabulos, who held the position of Medical Officer V at the Department of Education, Culture and Sports, National Capital Region (DECS-NCR), was the Chief of the School Health and Nutrition Unit. Dr. Virtudes was then Supervising Dentist III working under the supervision of Dr. Macabulos. Dr. Virtudes asserted in her complaint that in May 1997, Dr. Macabulos required her to submit dental and medical receipts for the liquidation of Dr. Macabulos' cash advance in the year 1995 amounting to P45,000 for the purchase of dental medicines and supplies. Dr. Virtudes did not submit receipts and invoices considering that she was not yet assigned at the School Health and Nutrition Unit, DECS-NCR when Dr. Macabulos incurred the cash advance.
Because of Dr. Virtudes' failure to produce receipts and invoices, Dr. Macabulos allegedly subjected Dr. Virtudes to several forms of harassment by: 1) denying her request for the purchase of dental supplies and equipment; 2) requiring her and her co-workers to sign an "Attendance Log Book" every time they arrived at the office and again before leaving the office even if they were already using the employees' bundy clock and signing the Attendance Sheet in the office; 3) threatening Dr. Virtudes and her co-workers with transfer of assignment; 4) sending letters to Dr. Virtudes threatening to charge her with insubordination and disrespect; and 5) threatening to kill her and her husband or do other harm to her and her family.
In her counter-affidavit, Dr. Macabulos denied forcing Dr. Virtudes to make a liquidation as the latter was not yet assigned to her unit at the time the cash advance was made. Dr. Macabulos likewise claimed that while the P45,000 cash advance was in her name being the only bonded employee in their unit, it was Dr. Antonia Lopez-Dee (Dr. Dee), who was then the Supervising Dentist, who used the money to purchase medical and dental supplies. Attached to Dr. Macabulos' counter-affidavit was an unnotarized affidavit[4] of Dr. Dee which admitted, among others, that she requested Dr. Macabulos to make the cash advance.
Dr. Macabulos attributed the filing of the complaint against her to professional jealousy. Dr. Virtudes allegedly resented Dr. Macabulos' order, requiring all employees under her supervision to sign an attendance log book. Dr. Macabulos imposed the new requirement as a remedial measure to curb Dr. Virtudes' alleged practice of leaving the office without permission to engage in private practice at the Philippine Lung Center where Dr. Virtudes' husband was also a dentist. Dr. Macabulos denied that she instigated the transfer of Dr. Virtudes and her two friends to other units and alleged that it was Dr. Virtudes and her friends who requested for the transfer of assignment.
In her reply-affidavit, Dr. Virtudes alleged that Dr. Macabulos, in enforcing the use of the attendance log book, singled her out although there were others who failed to sign the log book. Dr. Virtudes denied engaging in private practice. Dr Virtudes pointed out that she confronted Dr. Dee, who disowned the contents of her alleged affidavit which Dr. Macabulos attached to her counter-affidavit. Dr. Virtudes claimed that it was Dr. Macabulos who made the P45,000 cash advance, improperly spent the amount, and later tried to liquidate the same with the tampered Sales Invoice No. 3366 issued by Medsordent Center to conform to the amount of the cash advance.
On 29 December 2000, Graft Investigation Officer I Ulysis S. Calumpad (GIO I Calumpad) rendered a decision absolving Dr. Macabulos from the administrative charge. However, Overall Deputy Ombudsman Margarito P. Gervacio, Jr. (Overall Deputy Ombudsman Gervacio) disapproved the decision of GIO I Calumpad.
Investigating further, the Ombudsman required Dr. Dee to confirm her statements in her unnotarized affidavit dated 14 September 1998. In reply, Dr. Dee disowned the statements in her unnotarized affidavit. In her sworn affidavit[5] dated 9 May 2001, Dr. Dee stated that although she signed the unnotarized affidavit dated 14 September 1998, the contents of the first page were entirely different from the one attached by Dr. Macabulos in her counter-affidavit. Dr. Dee asserted that as Supervising Dentist, her job involved the requisition of the necessary health and dental supplies but not the purchasing of supplies which was done by the purchasing unit of the School Health and Nutrition Unit which was under Dr. Macabulos. Dr. Dee denied encashing the check for P45,000 which was in the name of Dr. Macabulos. Dr. Dee likewise denied purchasing the supplies indicated in the Medsordent Center sales invoice which was submitted by Dr. Macabulos to liquidate her P45,000 cash advance.
In a Memorandum[6] dated 13 June 2001, Graft Investigation Officer II Julita M. Calderon (GIO II Calderon) reversed the decision of GIO I Calumpad. GIO II Calderon found Dr. Macabulos guilty of dishonesty, falsification, grave misconduct, conduct grossly prejudicial to the best interest of the service and violation of reasonable office rules and regulations defined and penalized under the Civil Service Laws. The Memorandum, approved by Overall Deputy Ombudsman Gervacio and Ombudsman Aniano A. Desierto, imposed upon Dr. Macabulos the penalty of dismissal from government service.
On 11 July 2001, Dr. Macabulos filed a motion for reconsideration, which was denied in an Order dated 26 July 2001.
On 31 August 2001, Dr. Macabulos filed a petition for review with the Court of Appeals. On 17 March 2003, the Court of Appeals rendered a decision, the dispositive portion of which reads:
WHEREFORE, premises considered, the petition is GIVEN DUE COURSE. The assailed memorandum dated June 13, 2001 and the order dated July 26, 2001 of the Office of the Ombudsman in OMB Case No. 0-98-0438 are hereby REVERSED and SET ASIDE. The earlier decision of the GOI I Ulysis S. Calumpad of the Office of the Ombudsman is REINSTATED and the subject complaint DISMISSED. No pronouncement as to costs.
SO ORDERED.[7]
The Court of Appeals held that under Section 20(5) of Republic Act No. 6770 (RA 6770),[8] the Office of the Ombudsman (Ombudsman) can no longer investigate the complaint since the acts complained of were committed more than one year from the filing of the complaint. The Court of Appeals found irregular the reversal of the earlier decision of GIO I Calumpad, absolving Dr. Macabulos from the administrative charge, mainly on the basis of the recantation of Dr. Dee of her previous statements contained in an affidavit.
The Court of Appeals held that Dr. Macabulos' retirement from government service did not render the administrative case moot and academic.
Lastly, citing Section 27 of RA 6770, the Court of Appeals ruled that the Memorandum Order dated 13 June 2001 of the Ombudsman, imposing upon Dr. Macabulos the penalty of dismissal from government service, is not immediately executory.
- THE INTERPRETATION OF THE COURT OF APPEALS OF SEC. 20(5), RA 6770 AS A PRESCRIPTIVE PERIOD ON OMBUDSMAN ADMINISTRATIVE DISCIPLINARY CASES IS UNCONSTITUTIONAL, AS THE SAME UNDULY IMPINGES ON THE INVESTIGATORY AUTHORITY OF THE OMBUDSMAN ON ANY ACT OR OMISSION APPEARING TO BE ILLEGAL, UNJUST, IMPROPER OR INEFFICIENT.
- IN HIGHLY MERITORIOUS CASES, AS HERE, THE PETITIONER OFFICE OF THE OMBUDSMAN HAS THE DISCRETIONARY AUTHORITY TO CONDUCT ADMINISTRATIVE INVESTIGATION ON COMPLAINTS FILED MORE THAN ONE (1) YEAR FROM THE OCCURRENCE OF THE ACT OR OMISSION COMPLAINED OF, AND THE RULING OF THE COURT OF APPEALS THAT SUCH INVESTIGATION IS BARRED BY REASON OF PRESCRIPTION IS A GLARING NULLITY.
- CONTRARY TO THE APPELLATE COURT'S RULING, THERE IS MORE THAN SUBSTANTIAL EVIDENCE PROVING PRIVATE RESPONDENT'S GUILT, AND THE INCULPATORY SWORN STATEMENT OF PRIVATE RESPONDENT'S SUPPOSED OWN WITNESS, BEING ADMISSIBLE IN EVIDENCE AND NOT REBUTTED BY PRIVATE RESPONDENT, WAS CORRECTLY APPRECIATED BY THE OMBUDSMAN IN ADJUDGING PRIVATE RESPONDENT GUILTY OF GROSS MALFEASANCE NECESSITATING HER DISMISSAL FROM SERVICE.
- THE PENALTY OF DISMISSAL FROM THE SERVICE METED ON PRIVATE RESPONDENT IS IMMEDIATELY EXECUTORY IN ACCORDANCE WITH THE VALID RULE OF EXECUTION PENDING APPEAL UNIFORMLY OBSERVED IN ADMINISTRATIVE DISCIPLINARY CASES, AND THE RULING OF THE COURT OF APPEALS TO THE CONTRARY IS A PATENT NULLITY.
- CONTRARY TO THE APPELLATE COURT'S RULING, THE PETITIONER OFFICE OF THE OMBUDSMAN TIMELY AND RIGHTFULLY FILED ITS MOTIONS TO INTERVENE AND FOR RECONSIDERATION ON A PATENTLY ERRONEOUS DECISION OF THE COURT OF APPEALS WHICH HAS NOT YET ATTAINED FINALITY.[9]
We find the petition meritorious. The Court of Appeals should have granted the motion for intervention filed by the Ombudsman. In its decision, the appellate court not only reversed the order of the Ombudsman but also delved into the investigatory power of the Ombudsman. Since the Ombudsman was not impleaded as a party when the case was appealed to the Court of Appeals in accordance with Section 6, Rule 43 of the Rules of Court,[10] the Ombudsman had no other recourse but to move for intervention and reconsideration of the decision in order to prevent the undue restriction of its constitutionally mandated investigatory power.[11]
The Court of Appeals held that under Section 20(5) of RA 6770, the Ombudsman is already barred by prescription from investigating the complaint since it was filed more than one year from the occurrence of the complained act. We find this interpretation by the appellate court unduly restrictive of the duty of the Ombudsman as provided under the Constitution to investigate on its own, or on complaint by any person, any act or omission of any public official or employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.[12]
Section 20 of RA 6770 reads:
Sec. 20. Exceptions. - The Office of the Ombudsman may not conduct the necessary investigation of any administrative act or omission complained of if it believes that:The use of the word "may" is ordinarily construed as permissive or directory, indicating that a matter of discretion is involved.[13] Thus, the word "may," when used in a statute, does not generally suggest compulsion. The use of the word "may" in Section 20(5) of RA 6770 indicates that it is within the discretion of the Ombudsman whether to conduct an investigation when a complaint is filed after one year from the occurrence of the complained act or omission.
(1) The complainant has an adequate remedy in another judicial or quasi-judicial body;
(2) The complaint pertains to a matter outside the jurisdiction of the Office of the Ombudsman;
(3) The complaint is trivial, frivolous, vexatious or made in bad faith;
(4) The complainant has no sufficient personal interest in the subject matter of the grievance; or
(5) The complaint was filed after one (1) year from the occurrence of the act or omission complained of. (Emphasis supplied)
In Filipino v. Macabuhay,[14] the Court interpreted Section 20(5) of RA 6770 in this wise:
Petitioner argues that based on the abovementioned provision [Section 20(5) of RA 6770)], respondent's complaint is barred by prescription considering that it was filed more than one year after the alleged commission of the acts complained of.Moreover, Section 20 of RA 6770 has been clarified by Administrative Order No. 17[16] (AO 17), which amended Administrative Order No. 07 (AO 07), otherwise known as the Rules of Procedure of the Office of the Ombudsman. Section 4, Rule III[17] of the amended Rules of Procedure of the Office of the Ombudsman reads:
Petitioner's argument is without merit.
The use of the word "may" clearly shows that it is directory in nature and not mandatory as petitioner contends. When used in a statute, it is permissive only and operates to confer discretion; while the word "shall" is imperative, operating to impose a duty which may be enforced. Applying Section 20(5), therefore, it is discretionary upon the Ombudsman whether or not to conduct an investigation on a complaint even if it was filed after one year from the occurrence of the act or omission complained of. In fine, the complaint is not barred by prescription.[15]
Section 4. Evaluation. - Upon receipt of the complaint, the same shall be evaluated to determine whether the same may be:Thus, in this case, even if the complaint was filed more than one year after the alleged occurrence of the act complained of, it was within the discretion of the Ombudsman whether to pursue the investigation or dismiss the complaint.
a) dismissed outright for any grounds stated under Section 20 of Republic Act No. 6770, provided, however, that the dismissal thereof is not mandatory and shall be discretionary on the part of the Ombudsman or the Deputy Ombudsman concerned;
b) treated as a grievance/request for assistance which may be referred to the Public Assistance Bureau, this Office, for appropriate action under Section 2 , Rule IV of this Rules;
c) referred to other disciplinary authorities under paragraph 2, Section 23, R.A. 6770 for the taking of appropriate administrative proceedings;
d) referred to the appropriate office/agency or official for the conduct of further fact-finding investigation; or
e) docketed as an administrative case for the purpose of administrative adjudication by the Office of the Ombudsman. (Emphasis supplied)
Substantial Evidence Proving Guilt of Dr. Macabulos
Contrary to the appellate court's ruling, there was substantial evidence to hold Dr. Macabulos administratively liable. In the Memorandum dated 13 June 2001, the Ombudsman found that Dr. Macabulos purchased dental items (dentrate and castone) which were not included in the DECS Dental Program, using the P45,000 cash advance intended for the DECS Dental Program. Dr. Macabulos was required to refund the amount for items which were disallowed by the Commission on Audit (COA). Furthermore, the cash advance made on 28 March 1995 which was allegedly used for purchases made on 9 September 1995, was only liquidated in September 1997. The delay in the liquidation of the cash advance was a violation of Section 89 of Presidential Decree No. 1445 (PD 1445).[18] The Ombudsman also found that the dental supplies allegedly purchased were neither inspected nor received by the Supply and Property Unit of DECS-NCR.[19]
Upon further investigation by the Ombudsman, it was also discovered that Dr. Macabulos misled the Ombudsman by submitting a falsified affidavit of Dr. Dee to support Dr. Macabulos' claim that it was Dr. Dee who requested the cash advance, encashed the check, and bought dental supplies. In her subsequent sworn affidavit, Dr. Dee stated that when she was made to sign the other affidavit, the contents of the first page were entirely different from the one submitted by Dr. Macabulos. Dr. Dee denied encashing the check which was under the name of Dr. Macabulos. As then Supervising Dentist, Dr. Dee's job was to request for health and dental supplies but the purchasing of supplies was done by the purchasing unit of the School Health and Nutrition Unit which was under Dr. Macabulos. Contrary to Dr. Macabulos' claim, Dr. Dee emphatically denied that she purchased dental supplies using the P45,000 cash advance of Dr. Macabulos.
Indeed, the records reveal that on 13 March 1998, the DECS-NCR Resident COA Auditor issued an Audit Observation Memorandum (Audit Memorandum),[20] stating that Invoice No. 3366 of Medsordent Center purportedly issued on 9 September 1995 in the amount of P45,015 was deliberately tampered to conform to the amount of cash advance sought to be liquidated by Dr. Macabulos. The Audit Memorandum also stated that the items dentrate and castone, which are generally used by dental practitioners in making dental impression, were not included in the DECS Dental Program. Dr. Macabulos then reimbursed the P2,037.50 representing the price of dentrate and castone which COA disallowed. However, on 3 November 1998, the Resident Auditor, by virtue of Section 52(2) of PD 1445,[21] issued a management letter opening the account of Dr. Macabulos. On 3 February 1999, Dr. Macabulos paid P42,962.50[22] as final settlement of her cash advance.[23]
Thus, it appears from the records that Dr. Macabulos tried to liquidate with a tampered invoice the cash advance she made two years earlier. The tampered invoice also contained certain items which COA disallowed because the items were not included in the Medical and Dental Program of DECS-NCR. It is highly questionable whether the dental supplies purportedly purchased from Medsordent Center were really distributed to the regional office and the division offices since the Supply Officer of the DECS-NCR issued a certification that the items enumerated in the invoice were neither inspected nor received by the Supply and Property Unit. Furthermore, to evade responsibility, Dr. Macabulos submitted a falsified affidavit of Dr. Dee to make it appear that it was Dr. Dee who requested the cash advance to purchase dental supplies. After the COA issued a management letter opening Dr. Macabulos' account, Dr. Macabulos had to reimburse not only the amount of the disallowed items but also the whole amount of the cash advance.
Clearly, there was substantial evidence to hold Dr. Macabulos liable for dishonesty, falsification, grave misconduct, conduct grossly prejudicial to the best interest of the service, and violation of reasonable office rules and regulations defined and penalized under the Civil Service Laws. Under Section 27 of RA 6770, findings of fact by the Ombudsman when supported by substantial evidence are conclusive.
Penalty of Dismissal and its Accessory Penalties
In Resolution No. 91-1631 dated 27 December 1991, the Civil Service Commission (CSC) promulgated the Omnibus Civil Service Rules and Regulations (Omnibus Rules), pursuant to Section 12(2), Chapter 3, Title I(A), Book V of Executive Order No. 292 (EO 292).[24] Under Section 22, Rule XIV of the Omnibus Rules, dishonesty, falsification of official document, and grave misconduct are grave offenses punishable by dismissal. Conduct grossly prejudicial to the best interest of the service is also a grave offense punishable by suspension for 6 months and 1 day to 1 year for the first offense while violation of reasonable office rules and regulations is only a light offense punishable by reprimand for the first offense. Under Section 17 of Rule XIV of the Omnibus Rules, if the respondent is found guilty of two or more charges or counts, the penalty to be imposed should be that corresponding to the most serious charge or count and the rest shall be considered as aggravating circumstances. Although the CSC, through Resolution No. 99-1936 dated 31 August 1999, adopted the new "Uniform Rules in Administrative Cases in the Civil Service" (Uniform Rules), which took effect on 27 September 1999, the penalties imposed for the offenses charged in this case are the same under the new Uniform Rules.[25] Thus, the Ombudsman correctly imposed upon Dr. Macabulos the penalty of dismissal.
Under Section 9, Rule XIV of the Omnibus Rules, the penalty of dismissal from service carries with it the cancellation of eligibility, forfeiture of leave credits and retirement benefits, and the disqualification for reemployment in the government service.[26] However, under the new Uniform Rules, forfeiture of leave credits was deleted as an accessory penalty. Thus, under Section 58, Rule IV of the Uniform Rules, the penalty of dismissal shall carry with it the cancellation of eligibility, forfeiture of retirement benefits, and the perpetual disqualification for reemployment in the government service, unless otherwise provided in the decision.
Similarly, Section 10, Rule III of the Rules of Procedure of the Office of the Ombudsman, as amended by AO 17, provides that "the penalty of dismissal from the service shall carry with it that of cancellation of eligibility, forfeiture of retirement benefits, and the perpetual disqualification for reemployment in the government service, unless otherwise provided in the decision."
In this case, since Dr. Macabulos has already retired from the government service, her retirement benefits are forfeited but she is still entitled to receive her leave credits. She is also perpetually disqualified for reemployment in the government service and her civil service eligibility is cancelled.
Penalty of Dismissal is Executory Pending Appeal
The Court of Appeals held that the order of the Ombudsman imposing the penalty of dismissal is not immediately executory. The Court of Appeals applied the ruling in Lapid v. Court of Appeals,[27] that all other decisions of the Ombudsman which impose penalties that are not enumerated in Section 27 of RA 6770 are neither final nor immediately executory.
In Lapid v. Court of Appeals, the Court anchored its ruling mainly on Section 27 of RA 6770, as supported by Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman. The pertinent provisions read:
Section 27 of RA 6770:
SEC. 27. Effectivity and Finality of Decisions. - (1) All provisionary orders at the Office of the Ombudsman are immediately effective and executory.
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 movant. The motion for reconsideration shall be resolved within three (3) days from filing: Provided, That only one motion for reconsideration shall be entertained.
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 month's salary shall be final and unappealable.
In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court.
The above rules may be amended or modified by the Office of the Ombudsman as the interest of justice may require. (Emphasis supplied)
Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman (AO 07):
Sec. 7. Finality 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 and unappealable. In all other cases, the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari, shall have been filed by him as prescribed in Section 27 of RA 6770. (Emphasis supplied)
The Court held in Lapid v. Court of Appeals that the Rules of Procedure of the Office of the Ombudsman "mandate that decisions of the Office of the Ombudsman where the penalty imposed is other than public censure or reprimand, suspension of not more than one month salary are still appealable and hence, not final and executory."[28]
Subsequently, on 17 August 2000, the Ombudsman issued Administrative Order No. 14-A (AO 14-A),[29] amending Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman. The amendment aims to provide uniformity with other disciplining authorities in the execution or implementation of judgments and penalties in administrative disciplinary cases involving public officials and employees. Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman, as amended by AO 14-A, reads:
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 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.On 15 September 2003, AO 17 was issued, amending Rule III of the Rules of Procedure of the Office of the Ombudsman. Thus, Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman was further amended and now reads:
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.(Emphasis supplied)
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 the receipt of the written Notice of the Decision or Order denying the Motion for Reconsideration.Hence, in the case of In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of DPWH,[30] the Court noted that Section 7 of AO 17 provides for execution of the decisions pending appeal, which provision is similar to Section 47 of the Uniform Rules on Administrative Cases in the Civil Service.[31]
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 ground for disciplinary action against said officer. (Emphasis supplied)
More recently, in the 2007 case of Buencamino v. Court of Appeals,[32] the primary issue was whether the decision of the Ombudsman suspending petitioner therein from office for six months without pay was immediately executory even pending appeal in the Court of Appeals. The Court held that the pertinent ruling in Lapid v. Court of Appeals has already been superseded by the case of In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of DPWH, which clearly held that decisions of the Ombudsman are immediately executory even pending appeal.
Based on the foregoing, we hold that the Ombudsman's order imposing the penalty of dismissal on Dr. Macabulos was immediately executory even pending appeal in the Court of Appeals.
WHEREFORE, we GRANT the petition. We SET ASIDE the Decision dated 17 March 2003 and the Resolution dated 30 July 2003 of the Court of Appeals in CA-G.R. SP No. 66411. We REINSTATE the Memorandum Order dated 13 June 2001 and the Order dated 26 July 2001 of the Office of the Ombudsman, dismissing Dr. Mercedita J. Macabulos from the government service. Since Dr. Mercedita J. Macabulos has already retired from the government service, her retirement benefits are forfeited except her accrued leave credits. She is also perpetually disqualified for reemployment in the government service and her civil service eligibility is cancelled.
SO ORDERED.
Puno, CJ., (Chairperson), Azcuna, Velasco, Jr.*, and Leonardo-De Castro, JJ., concur.
*As replacement of Justice Renato C. Corona who is on leave per Administrative Circular No. 84- 2007.
[1] Under Rule 45 of the 1997 Rules of Civil Procedure.
[2] Penned by Associate Justice Bernardo P. Abesamis with Associate Justices Juan Q. Enriquez, Jr. and Edgardo F. Sundiam, concurring.
[3] Rollo, pp. 135-138.
[4] Id. at 245-246.
[5] Id. at 248.
[6] Id. at 123-129.
[7] Id. at 73.
[8] The Ombudsman Act of 1989.
[9] Rollo, pp. 18-19.
[10] Section 6, Rule 43 of the Rules of Court provides that the petition for review to the Court of Appeals shall state the full names of the parties to the case, without impleading the court or agencies either as petitioners or respondents.
[11] In Office of the Ombudsman v. Court of Appeals (G.R. No. 167844, 22 November 2006, 507 SCRA 593), where the Ombudsman sought intervention in the Court of Appeals and moved for reconsideration of the latter's decision, the Court of Appeals granted the motion for intervention even if it denied the motion for reconsideration.
[12] See Section 13, Article XI of the Constitution.
[13] De Ocampo v. Secretary of Justice, G.R. No. 147932, 25 January 2006, 480 SCRA 71.
[14] G.R. No. 158960, 24 November 2006, 508 SCRA 50.
[15] Id. at 57-58.
[16] Entitled "Amendment of Rule III, Administrative Order No. 07," and signed by Ombudsman Simeon V. Marcelo on 15 September 2003.
[17] Procedure in Administrative Cases.
[18] PD 1445, known as the "Government Auditing Code of the Philippines," provides under Section 89 that a cash advance shall be reported and liquidated as soon as the purpose for which it was given has been served.
[19] Rollo, p. 164. Per certification dated 8 September 1997 of the Supply Officer.
[20] Id. at 141-144.
[21] Section 52(2) of PD 1445 reads:
Section 52. Opening and revision of settled account. - x x x
(2) When any settled account appears to be tainted with fraud, collusion, or error calculation, or when new and material evidence is discovered, the Commission may, within three years after the original settlement, open the account, and after a reasonable time for reply or appearance of the party concerned may certify thereon a new balance. An auditor may exercise the same power with respect to settled accounts pertaining to the agencies under his audit jurisdiction.
[22] P45,000 (cash advance) - P2,037.50 (amount reimbursed) = P42,962.50 (remaining balance).
[23] See Affidavit of Auditor Ma. Victoria S. De Pano. Records, pp. 552-554.
[24] EO 292 is known as the "Administrative Code of 1987." Under Section 12(2), Chapter 3, Title I(A), Book V of EO 292, the Civil Service Commission has the power and function to prescribe and enforce rules and regulations for carrying into effect the provisions of the Civil Service Law and other pertinent laws.
[25] See Section 55, Rule IV of the Uniform Rules.
[26] Section 58, Rule IV of the Uniform Rules on Administrative Cases in the Civil Service.
[27] G.R. No. 142261, 29 June 2000, 334 SCRA 738.
[28] Id. at 755.
[29] Rollo, pp. 377-378.
[30] G.R. No. 150274, 4 August 2006, 497 SCRA 626.
[31] Section 47 of the Uniform Rules on Administrative Cases in the Civil Service reads:
Section 47. Effect of Filing. - An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal, in the event he wins the appeal. (Emphasis supplied)
[32] G.R. No. 175895, 12 April 2007, 520 SCRA 747.