A decision absolving a respondent elective public official rendered in an administrative case by the Office of the Ombudsman (OMB), being final and unappealable pursuant to the rules of the OMB, may still be assailed by petition for certiorari in the Court of Appeals (CA).

The abandonment of the doctrine of condonation took effect on April 12, 2016, when the Supreme Court denied with finality the OMB's motion for reconsideration in Morales v. Court of Appeals.^[1] However, the application by the OMB of the doctrine of condonation prior to its abandonment without the respondent elective public official invoking the same as a defense was whimsical, and amounted to grave abuse of discretion. Condonation, being a matter of defense, must be specifically invoked by the respondent elective public official.

The Case

The petitioner appeals the resolution promulgated on January 16, 2017 by the CA in CA-G.R. SP No. 148977 that dismissed the administrative complaint for nepotism in violation of Section 59, in relation to Section 67, of Presidential Decree No. 807 (Administrative Code of 1987), and Section 49, in relation to Section 55, of Executive Order No. 292 (Civil Service Law) initiated by the petitioner in the OMB against respondent Timoteo T. Capoquian, Jr. as the Mayor of the Municipality of Gamay, Province of Northern Samar.^[2]

Antecedents

The factual and procedural antecedents, as culled from the decision of the OMB,^[3] are as follows:

This is an administrative complaint for Nepotism filed by the Public Assistance and Corruption Prevention Office (PACPO) of the Office of the Ombudsman-Visayas against Mayor Timoteo T. Capoquian, Jr. and Vice Mayor Enrique C. Gomba, both of the Municipality of Gamay, Province of Northern Samar, and docketed on April 3, 2014.

This case stems from a letter-complaint of Domingo Crebello filed on September 10, 2009 for the alleged nepotism in the appointment of Raquel Capoquian (Raquel), sister of respondent Capoquian, Jr. and Clarita Gomba (Clarita), wife of respondent Gomba, to the Board of Directors of Gamay Water District. A fact-finding investigation, docketed as CPL-V-09-1076, was then conducted.

By the duly approved Final Evaluation Report of December 10, 2012, it was recommended that said CPL case be upgraded for preliminary investigation and administrative adjudication. The dispositive portion reads:

WHEREFORE, this Office finds merit to UPGRADE the case into two (2) counts of Criminal and Administrative cases for NEPOTISM (Sec. 59 in relation to Sec. 67 of PD 807 - Administrative Code of 1987 and Sec. 49 in relation to Sec. 55 of Executive Order No. 292 - Civil Service Law) against Mayor Timoteo Capoquian and Vice Mayor Enrique Gomba, Municipality of Gamay, Northern Samar.

Complainant PACPO alleged that the Sangguniang Bayan (SB) of the Municipality of Gamay passed and approved Resolution No. 10, Series of 2008, creating the Gamay Water District and empowering respondent Capoquian, Jr. to appoint members of its Board of Directors; that among those appointed by Capoquian, Jr. are Raquel, his sister and Clarita, wife of respondent Gomba; that in applying the rules of nepotism, the appointment of Raquel on March 5, 2008 is nepotic as she is related to respondent Capoquian, Jr. within the prohibited third degree of consanguinity; and that the appointment of Clarita was also nepotic for she was recommended by her husband, respondent Gomba as Vice Mayor/Presiding Officer of the SB.

By Order of June 9, 2014, the Office directed respondents to file their Counter-Affidavits. Complainant was likewise given the chance to file its reply thereto.

By Order of January 13, 2015, the Office directed the parties to file their respective verified position papers.

Respondents, however, failed to heed both directives. Such failure is taken as a waiver on their part to controvert the charges. Nevertheless, the mere failure of respondents to submit their Counter-Affidavits does not automatically warrant a finding of probable cause. There is still a need to examine the evidence presented by the complainants to determine if the same is sufficient to indict them of the crimes charged. The case will thus be resolved on the basis of the evidence on record.^[4]

In its decision, the Office of the Ombudsman held that by reason of the re-election of respondent Capoquian, Jr. as Mayor during the 2010 elections, the administrative case against him should be dismissed by virtue of the doctrine of condonation of administrative offenses committed during a prior term following the Court's ruling in Aguinaldo v. Santos.^[5]

The dispositive portion of the decision of the OMB reads thusly:

WHEREFORE, respondent ENRIQUE C. GOMBA is hereby found GUILTY of NEPOTISM and meted the penalty of DISMISSAL FROM SERVICE. The penalty of Dismissal shall carry with it cancellation of eligibility, forfeiture of retirement benefits, perpetual disqualification from holding public office and bar from taking the civil service examinations.

The charge against respondent TIMOTEO T. CAPOQUIAN, JR., who was re-elected as the Mayor of Camay, Northern Samar, is hereby dismissed for being moot.

x x x x

SO DECIDED.^[6]

The petitioner moved for partial reconsideration, arguing that the doctrine of condonation had already been abandoned on November 10, 2015 through the ruling promulgated in Morales v. Court of Appeals; hence, the doctrine could no longer be made to apply in favor of respondent Capoquian, Jr. if the decision thereon had been approved by the Ombudsman on March 31, 2016.

The OMB denied the motion for partial reconsideration, and held that the ruling in Morales v. Court of Appeals became final only on April 12, 2016, the date of the promulgation of the minute resolution denying with finality its motion for clarification/motion for reconsideration.

Following the denial by the Supreme Court of the motion for clarification/motion for reconsideration in Morales v. Court of Appeals, the OMB issued Circular No. 17 on May 11, 2016 to set the cut-off date on the condonation doctrine, and to state that the OMB would no longer implement the condonation doctrine from April 12, 2016 onwards.

Aggrieved, the petitioner assailed the resolution of the OMB in the CA by petition for certiorari, alleging that the OMB thereby committed grave abuse of discretion amounting to lack or excess of jurisdiction.

However, the CA promulgated the assailed resolution of January 16, 2017 dismissing the petition for certiorari for being the wrong legal remedy on the basis of the pronouncement made in Fabian v. Desierto^[7] to the effect that appeals from the decisions of the OMB in administrative disciplinary cases should be brought to the CA by petition for review under Rule 43.^[8]

The CA denied the petitioner's motion for reconsideration on June 14, 2017.

Issues

In this appeal, two issues are presented for consideration and resolution, namely: (1) whether or not the CA erred in holding that the petition for certiorari was the wrong remedy to assail the decision of the OMB absolving respondent Capoquian, Jr. from the administrative charge of nepotism; and (2) whether or not the OMB committed grave abuse of discretion in applying the condonation doctrine in favor of respondent Capoquian, Jr.

Ruling of the Court

The appeal has merit.

I

We have ruled in Fabian v. Desierto^[9] that, indeed, appeals from the decisions of the OMB rendered in administrative disciplinary cases should be taken to the CA via petition for review under Rule 43 of the Rules of Court. We have reiterated this ruling subsequently.^[10]

Nonetheless, the CA's reliance on Fabian v Desierto was misplaced. The CA obviously did not take into account that the OMB had absolved respondent Capoquian, Jr. from liability based on its application of the doctrine of condonation arising from his re-election to the same position. Such absolution was final, executory and unappealable under Section 7, Rule III, of Administrative Order No. 07, issued by the OMB to implement Section 27 of Republic Act No. 6770, which 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.

With the absolution of respondent Capoquian, Jr. being already final and no longer appealable, Rule 43, which defines a mode of appeal, obviously did not apply. Therein lay the reversible error of the CA.

We go further. The petitioner was not bereft of a recourse or legal remedy against, the absolution of respondent Capoquian, Jr. The final and unappealable decision of the OMB could still be the subject of judicial review through the petition for certiorari upon allegation and proof of grave abuse of discretion on the part of the OMB. We so enunciated in Republic v. Francisco,^[11] to wit:

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. 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. 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.^[12] (Emphasis supplied)

In view of the foregoing, we find and hold to be correct the petitioner's stance that the resolution absolving respondent Capoquian, Jr. of the charge of nepotism, being final and unappealable, could still be challenged or assailed through the petition for certiorari. Plainly enough, the CA wrongly dismissed the petition for certiorari for being the wrong remedy on the notion that the decisions of the OMB in administrative cases should be assailed before the CA by petition for review under Rule 43.

II

The remaining issue involves the application of the doctrine of condonation, which is a question of law.

The Court deems it wiser not to remand the case to the CA, and instead to take it upon itself to resolve the issue. Thereby, the Court will avoid further delay in the disposition of the case, and at the same time promote the speedy disposition of cases. The resolution of the issue by the Court is proper because the records, pleadings, and other evidence that would enable us to already rule on the matter are available to the Court.^[13]

The petitioner submits that the doctrine of condonation had been abandoned on November 10, 2015 through the ruling in Morales v. Court of Appeals;^[14] hence, the decision of the OMB dated March 31, 2016 absolving respondent Capoquian, Jr. because of condonation was unjustified inasmuch as the doctrine of condonation had then been abandoned.

In contrast, the OMB insists that the ruling in Morales v. Court of Appeals on the abandonment of the doctrine of condonation became final only on April 12, 2016 because that was the date on which the Supreme Court had acted upon and denied with finality its motion for clarification/motion for partial reconsideration in Morales v. Court of Appeals; and that it issued its Office Circular No. 17 declaring that it would no longer apply the defense of condonation starting on April 12, 2016 except for open and pending administrative cases.

We sustain the insistence of the OMB. The ruling promulgated in Morales v. Court of Appeals on the abandonment of the doctrine of condonation had, indeed, become final only on April 12, 2016, and thus the abandonment should be reckoned from April 12, 2016. Under the circumstances, the decision of the OMB dated March 31, 2016 absolving respondent Capoquian, Jr. by reason of the application of the doctrine of condonation might have been justified.

However, the petitioner has assailed the application of the doctrine of condonation precisely because respondent Capoquian, Jr. had not invoked the doctrine of condonation as a defense. This omission on his part appears to be confirmed by the records, which indicated that he did not submit or file his counter-affidavit and verified position paper despite being required to do so. Worse, the omission to submit or file, according to the petitioner, amounted to his waiver of his right to controvert the charge of nepotism brought against him.

In this regard, we have to agree with the petitioner.

In Morales v. Court of Appeals, the Ombudsman took the strong position that condonation was a matter of defense that should be raised and passed upon during the administrative disciplinary proceedings, to wit:

The Ombudsman also maintained that a reliance on the condonation doctrine is a matter of defense, which should have been raised by Binay, Jr. before it during the administrative proceedings, and that, at any rate, there is no condonation because Binay, Jr. committed acts subject of the OMB Complaint after his re-election in 2013.^[15]

x x x x

The Ombudsman contends that it was inappropriate for the CA to have considered the condonation doctrine since it was a matter of defense which should have been raised and passed upon by her office during the administrative disciplinary proceedings.^[16]

The aforestated position taken by the OMB in Morales v. Court of Appeals should be upheld. Condonation is an affirmative fact that must be raised by the respondent in the administrative proceedings to enable the OMB to fully consider and pass upon the matter. That did not happen in the case of respondent Capoquian, Jr., whose failure to file or submit his counter-affidavit and verified position paper despite notice rendered indubitable that he had not at all raised before the OMB the doctrine of condonation or any other matter as a defense. Clearly, the OMB acted whimsically in absolving respondent Capoquian, Jr. by virtue of condonation.

In other words, respondent Capoquian, Jr. should now be held administratively liable for nepotism, which the OMB found to be fully established against him, and he should consequently be meted the penalty of dismissal from the service with all the accessory penalties. Yet, because the act complained of had happened during his term in 2007-2010 as the Municipal Mayor of the Municipality of Gamay of the Province of Northern Samar, which term had meanwhile expired, the penalty of dismissal from the service can no longer be meted on him. Still, despite the principal penalty of dismissal becoming moot, he should nonetheless suffer the accessory penalties of cancellation of eligibility, forfeiture of retirement benefits, perpetual disqualification from holding public office, and bar from taking civil service examinations. Otherwise, the law becomes a travesty.

WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES and SETS ASIDE the resolution promulgated by the Court of Appeals in CA-G.R. SP No. 148977 on January 16, 2017; DECLARES and FINDS respondent TIMOTEO T. CAPOQUIAN, JR. guilty of NEPOTISM (in violation of Section 59, in relation to Section 67, of Presidential Decree No. 807, also known as the Administrative Code of 1987, and Section 49, in relation to Section 55, of Executive Order No. 292, also known as the Civil Service Law); IMPOSES on respondent TIMOTEO T. CAPOQUIAN, JR. the accessory penalties of cancellation of eligibility, forfeiture of retirement benefits, perpetual disqualification from holding public office, and bar from taking civil service examinations; and ORDERS him to pay the costs of suit.

SO ORDERED.

Gesmundo and Carandang, JJ., concur.
Del Castillo and Jardeleza, JJ., on wellness leave.

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^[1] G.R. Nos. 217126-27, November 10, 2015, 774 SCRA 431.

^[2] Rollo, pp. 24-27, penned by Associate Justice Socorro B. Inting with Associate Justice Remedios A Salazar-Fernando and Associate Justice Priscilla J. Baltazar-Padilla concurring.

^[3] Id. at 68-73.

^[4] Id. at 68-70.

^[5] Id. at 71.

^[6] Id. at 72-73. (Bold underscoring supplied for emphasis)

^[7] G.R. No. 129742, September 16, 1998, 295 SCRA 470.

^[8] Supra note 2, at 24.

^[9] G.R. No. 129742, September 16, 1998, 295 SCRA 470, 491.

^[10] See Lanting v. Ombudsman, G.R. No. 141426, May 6, 2005, 458 SCRA 93, 100-101.

^[11] G.R. No. 163089, December 6, 2006, 510 SCRA 377.

^[12] Id. at 393-394.

^[13] Bunao v. Social Security System, G.R. No. 159606, December 13, 2005, 477 SCRA 564, 571.

^[14] Supra, note 1.

^[15] Supra note 1, at 464.

^[16] Id. at 528.