G.R. No. 170021




FIRST DIVISION G.R. No. 170021 September 8, 2006 OFFICE OF THE PRESIDENT, petitioner, vs. NITA P. BUENAOBRA, respondent. D E C I S I O N YNARES-SANTIAGO, J.: This petition for review under Rule 45 of the Rules of Court assails the Decision¹ of the Court of Appeals dated May 27, 2005 in CA-G.R. SP No. 78279, which reversed and set aside petitioner's Resolutions dated April 11, 2003² and June 26, 2003³ dismissing respondent Nita P. Buenaobra from the service. Also assailed is the Resolution⁴ dated October 3, 2005, denying petitioner's motion for reconsideration. The following facts are undisputed: The Office of the Ombudsman's Special Prosecution Officer filed an information against respondent Nita P. Buenaobra, Chairman of the Komisyon sa Wikang Pilipino (KWP), with the Sandiganbayan for violation of Section 3(e) of Republic Act (R.A.) No. 3019 for allegedly causing undue injury to the government through gross inexcusable negligence in connection with the unauthorized reprinting of the Diksyunaryo ng Wikang Pilipino. The case was docketed as Criminal Case No. 26918 ("the Sandiganbayan case").⁵ Upon respondent's motion, the Sandiganbayan ordered a reinvestigation. Thereafter, then Ombudsman Simeon Marcelo approved the recommendation for the reversal of the probable cause finding and the withdrawal of the information filed against respondent. Thus, a motion to withdraw the information⁶ was filed which the Sandiganbayan granted in its Resolution dated April 30, 2003.⁷ While reinvestigation of the Sandiganbayan case was on-going, the Presidential Anti-Graft Commission (PAGC) conducted a parallel administrative investigation ("the PAGC case") against respondent charging her with the same acts and omissions subject of the Sandiganbayan case. Respondent was charged with causing undue injury to the government and giving unwarranted benefits to Merylvin Publishing House, Inc., through gross inexcusable negligence in not taking legal action to collect the 15% royalty fee of P3,366,250.00 approved by the KWF Board to be levied against the publisher for its unauthorized reprinting and selling of the dictionary.⁸ Instead of filing her counter-affidavit/verified answer, respondent moved to dismiss the administrative case on grounds of litis pendentia and forum shopping in view of the pending Sandiganbayan case. The PAGC denied respondent's motion to dismiss and recommended respondent's dismissal from the service, forfeiture of financial benefits, and disqualification from joining the government. On April 11, 2003, petitioner adopted PAGC's recommendation and dismissed respondent from office.⁹ It held as inapplicable the doctrines of litis pendentia and forum shopping because the Sandiganbayan case was criminal, while the PAGC case was administrative, in nature. It also ruled that respondent was deemed to have admitted the material averments of PAGC's complaint when she did not specifically deny them, despite an opportunity to do so. Respondent moved for reconsideration¹⁰ but was denied. Hence, she filed a petition for review with the Court of Appeals, docketed as CA-G.R. SP No. 78279.¹¹ The Court of Appeals granted respondent's petition in its assailed Decision dated May 27, 2005 holding that the proceedings before the PAGC were procedurally and substantially flawed because after denying respondent's motion to dismiss, the PAGC did not give respondent the opportunity to present evidence. Instead, it proceeded to rule on the merits of the case. The Court of Appeals also found no evidence to prove respondent's administrative liability in not collecting the 15% royalty fee. The dispositive portion of the Decision reads: WHEREFORE, premises considered, the petition is GRANTED. The assailed Resolutions dated April [11], 2003 and June 26, 2003 are SET ASIDE. The charge/complaint against petitioner Nita P. Buenaobra is hereby ordered DISMISSED for complete lack of evidence against the petitioner. SO ORDERED.¹² Petitioner's motion for reconsideration was denied, hence, the instant petition. Petitioner argues that respondent was a presidential appointee and a holder of a non-career service position, hence, she could be removed from the service at the pleasure of the President. The petition lacks merit. Republic Act (R.A.) No. 7104¹³ creating the Commission on the Filipino Language provides for 11 commissioners to be headed by a chairman and all appointed by the President.¹⁴ The chairman and two commissioners shall serve full-time for a term of seven years. Under Section 4, Article IV, of Presidential Decree (P.D.) No. 807, or the Civil Service Decree, positions in the civil service are classified into career service and non-career service. Section 6 of same article describes a non-career service employee or officer as follows: Sec. 6. The Non-Career Service shall be characterized by (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made. The Non-Career Service shall include: x x x x 3. Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; (Emphasis added) x x x x Based on the foregoing, respondent who is the Chairman of the KWP is a non-career service personnel whose tenure is limited to seven years as provided under R.A. No. 7104. Since her tenure is fixed by law, her removal from office is not at the pleasure of the appointing authority. We have consistently ruled that non-career service personnel enjoy security of tenure. They may not be removed without just cause and non-observance of due process. Thus, in Jocom v. Regalado,¹⁵ we held: Regardless of the classification of the position held by a government employee covered by civil service rules, be it a career or non-career position, such employee may not be removed without just cause. An employee who belongs to the non-career service is protected from removal or suspension without just cause and non-observance of due process. x x x x The constitutional and statutory guarantee of security of tenure is extended to both those in the career and non-career service positions, and the cause under which an employee may be removed or suspended must naturally have some relation to the character or fitness of the officer or employee, for the discharge of the functions of his office, or expiration of the project for which the employment was extended. (Emphasis supplied) Moreover, there is no showing that respondent's failure to file suit to collect the royalty fee prejudiced the government. In its assailed Resolution dated June 26, 2003, petitioner held that there was a PAGC "categorical finding"¹⁶ of violation of Sec. 3(e) of R.A. No. 3019. However, it was a bare conclusion by the PAGC in violation of Sec. 5, Rule VII, Part III of the PAGC New Rules of Procedure,¹⁷ that in every case, the "Commission shall use any and all reasonable means to ascertain the facts in each case or complaint speedily and objectively and without regard to technicalities of law or procedure, in all instances observing due process." More important, Sec. 2, Rule VIII, Part IV of the PAGC rules requires that its report and recommendation to the President "shall state, among others, the factual findings and legal conclusions, as well as the penalty recommended to be imposed or such other action that may be taken." PAGC concluded that respondent violated R.A. No. 3019, without any factual findings at all. We agree with the findings of the Court of Appeals that respondent did not give any unwarranted benefits to Merylvin, to wit: The act of "not taking legal action to collect" is not defined by any criminal statute as an offense by omission per se. If it were so, a sizeable number of public officials would be out of the government service by mere omission to take such action. But could the same act be the basis for administrative action against an erring public official? Logically since such an omission is not a criminal offense per se, it could be the basis of an administrative action only if there is a positive duty to take legal action clearly imposed upon the petitioner. In the instant case, insofar as the criminal aspect of the case is concerned, the office of the Ombudsman already ruled that the accused x x x "cannot be faulted if she instituted no action to collect royalty fee from the publishing house. In fact, if she instituted such action, the same would be unauthorized and without legal basis as there was no contract between the KWF and the publisher." It is for this reason that the Motion to Withdraw Information in Criminal Case No. 26918 entitled People vs. Nita P. Buenaobra was granted by the Fifth Division of the Sandiganbayan. This lack of positive duty to take legal action on the part of the petitioner is bolstered by the fact that KWF Board Resolution No. 2002-2 specifically disauthorized her to enter into a contract with Merylvin Publishing House, thus, Buenaobra's inaction to collect the 15% royalty fee from said publisher was only in accord with the KWF Board of Commissioners' decision. KWF is a collegial body and as such it acts only in accordance with the Board's directives. In fact, much earlier, the offer to pay fifteen percent (15%) royalty fee was referred by the KWF Board to the State Auditor for his comment and recommendations under Resolution No. 2000-1 passed and approved on February 2, 2000. Petitioner Buenaobra was dismissed from the service as a result of an illogical conclusion of an unreasonable mind. Buenaobra was charged for her omission to collect from Merylvin Publishing House but the KWF Board of Commissioners, of which the private complainant is a member, disauthorized Buenaobra from entering into a contract with Merylvin Publishing House (which offered the 15% royalty fee), which would have been the basis for collection. Clearly then, as pointed out by the Office of the Ombudsman, without such contract, there was no basis for collection. If We have to pinpoint responsibility for non-collection, it is not because of the inaction of Buenaobra but because of the KWF Board Resolution No. 2000-2 disauthorizing Buenaobra from entering into a contract with Merylvin Publishing House. The sad thing is that one of the signatories of said resolution is the private complainant KWF Commissioner Fe Aldave-Yap, who is herself the cause of the non-collection. The filing of this complaint resulting in the resolution of the administrative body dismissing petitioner Buenaobra from government service is a sad commentary of the mentality of public functionaries who file cases and those who cursorily give them due course even though the factual bases clearly show a comedy of errors. It escapes logic and clear thinking why this complaint against petitioner was filed and entertained in the first place. x x x. x x x x Buenaobra did not give any unwarranted benefits, advantage or preference to the publisher nor had she acted with manifest partiality, evident bad faith or gross inexcusable negligence. Such being the case, it necessarily follows that the charge/complaint against petitioner must be dismissed.¹⁸ (Italics and emphasis in the original) WHEREFORE, based on the foregoing, the petition is DENIED. The Decision of the Court of Appeals dated May 27, 2005 in CA-G.R. SP No. 78279, which reversed and set aside the Resolutions dated April 11, 2003 and June 26, 2003 of the Office of the President dismissing respondent Nita P. Buenaobra from the service, and its Resolution dated October 3, 2005 denying petitioner's Motion for Reconsideration, are AFFIRMED. SO ORDERED. Panganiban, C.J., Chairperson, Austria-Martinez, Callejo, Sr., Chico-Nazario, J.J., concur. Footnotes ¹ Rollo, pp. 39-74. Penned by Associate Justice Regalado E. Maambong and concurred in by Associate Justices Martin S. Villarama, Jr. and Lucenito N. Tagle. ² Id. at 83-86. ³ Id. at 87-90. ⁴ Id. at 111-112. ⁵ CA rollo, p. 650. ⁶ Id. at 220-221. ⁷ Id. at 61-66. Penned by then Presiding Justice Minita V. Chico-Nazario (now a Member of the Supreme Court) and concurred in by Associate Justices Ma. Cristina G. Cortez-Estrada and Diosdado M. Peralta. ⁸ Id. at 288. ⁹ Id. at 21-24. ¹⁰ Id. at 25-41. ¹¹ Id. at 7-20. ¹² Rollo, p. 73. ¹³ Commission on the Filipino Language Act. ¹⁴ Secs. 5 and 6, id. ¹⁵ G.R. No. 77373, August 22, 1991, 201 SCRA 73, 81-82. ¹⁶ CA rollo, p. 338. ¹⁷ Adopted under PAGC Resolution No. 05, S. 2002, approved on March 14, 2002, and filed with the National Administrative Register on same date. ¹⁸ Rollo, pp. 143-147. The Lawphil Project - Arellano Law Foundation