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Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 156286             August 13, 2008

MARITA C. BERNALDO, petitioners,
vs.
THE COURT OF APPEALS (CA), THE OMBUDMAN, and THE DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS (DPWH), respondents.

D E C I S I O N

LEONARDO-DE CASTRO, J.:

Marita C. Bernaldo filed aAt bar is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, wherein petitioner Marita C. Bernaldo ("Bernaldo") assailing assailed the Resolution¹ dated November, 13 2002 and the Decision² dated January 31, 2002 of the Court of Appeals (CA) in CA-G.R. SP No. 65440 (the "Assailed Rulings"). The Aassailed Rrulings affirmed the Order[s]³ dated June 7, 2001 and December 26, 2000 of the Office of the Ombudsman in OMB-ADM-0-93-0411, finding petitioner Bernaldo administratively liable for "conduct grossly prejudicial to the best interest of the service" and ordering her suspension for a period of nine (9) months without pay and other benefits. The public respondents, through the Office of the Solicitor General, filed theirits Comment⁴ dated June 23, 2003. The petitioner responded with a her Reply⁵ dated November 6, 2003. The parties likewise filed their respective memoranda.

The facts are culled from the records of the case.

The Department of Public Works and Highways ("DPWH") had nine (9) river dredging projects in Bataan sometime in 1987 to 1988 which were duly awarded to various private contractors. Among these projects were the Channel Improvement of Calaguiman River in Samal, Bataan (the "Calaguiman River Project"); the Channel Improvement of Almacen River I in Hermosa, Bataan (the "Almacen River I Project"); and the Channel Improvement of Almacen River II also in Hermosa, Bataan (the "Almacen River II Project").

Petitioner Bernaldo was the DPWH Region III Project Engineer of tThe Almacen River II Pproject was awarded toand L.J. Cruz Construction and was the contractor. The costcontract price of the said project was P 3,316,231.12. The contractor was allowed to commenced the projectwork on December 22, 1987 and it reported the project’sits completion on August 31, 1988. At the time of the reported completion, petitioner Bernaldo was the DPWH Region III Project Engineer for the Almacen River II Project. In a Statement of Work Accomplished⁶ (SWA) dated August 31, 1988 and a Certificate of Final Inspection and Certificate of Final Acceptance⁷ dated September 1, 1988, the Almacen River II Pproject was certified 100% completed "in accordance with the approved plans and specifications" by the contractor and the DPWH Region III Engineers, namely, Marita C. Project Engineer - Marita C. Bernaldo as the Project Engineer;, District Engineer - Adolfo M. Flores as the District Engineer;, Chief of Construction Division - Celestino R. Contreras, Chief of Maintenance Division - as the Chief of Construction Division; Angelito M. Twaño, as the Chief of Maintenance Division; Chief of Planning and Design Division - Augusto A. Mendoza as the Chief of Planning and Design Division,; Chief of Materials and Quality Control Division - Andrelito P. Tagorda, Assistant Regional Director - as the Chief of Materials and Quality Control Division; Regulo V. Fernandez, as the Assistant Regional Director; and Regional Director - Jose C. Pendoza (collectively, the "DPWH Region III Engineers") as the Regional Director. The contractor was eventually paid 93.58% of the contract pricecost.

However, a contrary finding as to the accomplishment of works involving all three projects was reported by a Survey and Investigation Team of the Bureau of Design of the DPWH (the "Survery Team") composed of Felix V. Camaya, Eustacio Y. Cano, and Rogelio A. Hernandez (survey team). In its Field Survey and Investigation Report⁸ dated November 7, 1988, the Ssurvey Tteam indicated, among others, that the amount of work accomplished by L.J. Cruz Construction on the Almacen River II Pproject was only about 21% completed. Moreover, in a Letter-Report⁹ dated May 16, 1989 of DPWH Senior Civil Engineer Stephen L. David addressed to Special Investigator III Rafael R. Cabigao of the Office of the Ombudsman, Rafael R. Cabigao, the equipments utilized on the Almacen River II pProject waswere evaluated and it was stated therein disclosed that the same could not possibly accomplish the reported full completion of the said project.

Based on the foregoing reports, the DPWH Region III Engineers connected with the Calaguiman River, Almacen River I, and Almacen River II Pprojects were all administratively charged for Falsification, Dishonesty, and Conduct Prejudicial to the Best Interest of the Service before the Administrative Adjudication Bureau (AAB) of the Office of the Ombudsman in docketed as OMB-ADM-0-93-0411. In theThe Memorandum,¹⁰ dated May 5, 1993 of Graft Investigation Officer (GIO) J. Celrin M. Macavinta of the OMB Task Force on Public Works and Highways, the allegations constituting the administrative charge are quoted as follows:contained the following findings:

xXxx xxx xxx

The report of the survey team and the analysis of Engr. David clearly established a clear case of overpayment. The same also show conspiracy between and among the contractors and the concerned government engineers who allowed the overpayment by issuing certifications indicating that the contractors had completed the project 100%, when in truth and in fact, the contractors had barely accomplished anything.

Without the said false certifications, no payments could have been made to the conniving contractors. These falsified documents are:

Xxxx xxx xxx

ALMACEN RIVER PROJECT II

1. The Statement of Work Accomplished showing that the project was 100% accomplished as of August 31, 1988. The document was certified to and verified correct by:

a. MARITA C. BERNALDO – Project Engineer;

b. CELESTINO R. CONTRERAS – Chief, Construction Division;

c. LEONARDO J. CRUZ – Contractor;

d. ADOLFO M. FLORES – District Engineer;

e. REGULO V. FERNANDEZ – Assistant Regional Director;

f. JOSE C. PENDO_ZA – Regional Director.

2. The Certificate of Final Inspection. This document certifies that the project was inspected on September 1, 1988 and was found 100% completed by:

a. MARITA C. BERNALDO – Project Engineer;

b. ANGELITO TWANO – Chief, Maintenance Division;

c. AUGUSTO MENDOZA – Chief, Planning & Design Division;

d. ANDRELITO TAGORDA – Chief, Materials & Quality Control Division;

e. CELESTINO CONTRERAS – Chief, Construction Division; and

f. ADOLFO FLORES – District Engineer.

xXxx xxx xxx

Based on the survey, the difference between the actual work accomplished and the total collections of the contractors in the three projects are itemized and computed as follows:

xXxx xxx xxx

ALMACEN RIVER PROJECT II

Amount actually Accomplished	Amount Collected by the Contractor	Difference (damage to the government)
21% or P 733,320	93.58% or P 3,267,755.61	72.58% or P 2,534,435.61

Xxxx xxx xxx

(emphasis supplied)

Adolfo M. Flores, Andrelito P. Tagorda, Angelito M. Twaño, Arsenio R. Flores, Augusto A. Mendoza, and Celestino R. Contreras filed their respective counter-affidavits while petitioner Bernaldo filed a motion to dismiss. Thereafter, the parties presented their evidence.

The complainant proffered DPWH submitted the report of the Ssurvey tTeam and the letter-report of Engr. David (Exhibits A and submarkings). Engr. Rogelio A. Hernandez¹¹ and Engr. Eustacio Y. Cano¹² of the survey team testified for the complainant. On the other hand, the respondent DPWH Region III Eengineers presented the Counter-Affidavits¹³ of Angelito M. Twaño, Andrelito P. Tagorda, Augusto A. Mendoza, and Adolfo M. Flores (Exhibits 1 to 5 and submarkings); a Letter-Receipt¹⁴ dated November 9, 1989 of Aurora G. Banaag (Exhibit 6); a Status Report¹⁵ dated August 15, 1988 for the Almacen River II Project (Exhibit 7); an Affidavit¹⁶ dated December 20, 1987 of Leonardo R. Cruz, Sr. (Exhibit 8); a Status Report¹⁷ dated August 15, 1988 for the Calaguiman River Project (Exhibit 9); and the 1988 Tropical Cyclone Summary¹⁸ (Exhibit 10). Angelito M. Twaño, Andrelito P. Tagorda, Augusto A. Mendoza, and Adolfo M. Flores testified for the respondentss.engineers.

The case was submitted for decision after the reception of evidence of the parties. The AAB proposed recommended the dismissal of the complaint against the DPWH respondent enRegion III Engineers, including petitioner Bernaldo, for insufficiency of evidence. However, in an Order dated December 26, 2000, of Ombudsman Aniano A. Desierto, disapproved the recommendation of the AAB was disapproved aand, instead, found the DPWH Region III Eengineers were held administratively liable for ""conduct grossly prejudicial to the best interest of the service.".

The Ombudsman rejected the defenses of the respondents engineers that: (a) the strong magnitude of waves possibly caused the continuous sedimentation of the Calaguiman River, Almacen River I and Almacen River II dredging sites during the months after followingbetween the projects’ completion and prior to the Survey Team’s inspection; and (b) its completion and that the letter-report of Engr. David merely speculated that there were two (2) cranes used on these projects. In the said Order, The It Ombudsman was also pointed out that there were no serious efforts done to determine the extent of work of the contractors as revealed by the testimonies of Twaño, Tagorda, and Mendoza thatsince the dredging sites were only visually inspected by respondent engineers; that there were no surveying instruments used to measure the exact quantity of spoils excavated from the rivers; and that the actual volume of dredged materials were based on "wild guess". tThe Ombudsman collectively blamed the respondents engineers for not ascertaining "by simple arithmetical computation the maximum volume of work that can be accomplished within a given period of time and given the number of dredging equipments used" by which they could haveto discovered that the contractors bloated the volume of excavated materials. Thus, the respondent DPWH Region III Engineers, including petitioner Bernaldo, were ordered suspended for a period of nine (9) months without pay and other benefits.

In an Order dated June 7, 2001, the Ombudsman denied the separate motions for reconsideration of the respondents,engineers stressing their responsibility and the participation of petitioner Bernaldo in the purported bloating of the completion of the projects. To quote from the said Order in this manner:

Xxxx xxx xxx

Substantial evidence exists in the premises to hold respondents ARSENIO FLORES, CELESTINO CONTRERAS, ENGELITO TWANO, ANDRELITO TAGORDA, and MARITA BERNALDO administratively liable for conduct prejudicial to the best interest of the service.

Substantial evidence is only "that amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion" (Section 5, Rule 133, 1997 Revised Rules of Courtxxx xxx xxx).

Per evaluation and computation of the capability of the equipments used made by DPWH Senior Civil Engr. Stephen David, it was impossible for the contractors to have accomplished the volume of works reported to have been accomplished. Far from being speculative, Engr. David’s reports is borne out not only by the Programs of Works (which reflect that two (2) hydraulic cranes were used for the dredging of Almacen River while one (1) dredger and one (1) hydraulic crane were used for the dredging of Calaguiman River) but also by the testimony of respondent Adolfo Flores during the formal hearing held on 16 March 1995 that a total of four (4) cranes were used for the Almacen River Projects I & II while one (1) dredger and one (1) hydraulic crane were used for the Calaguiman River Project (TSN of the 16 March 1995, pp. 61 and 67).

The findings of Engr. David may still be given weight notwithstanding the fact that he was not presented as a witness. In administrative proceedings, technical rules of procedure and evidence are not strictly applied (Concerned Officials of the MWSS v. Vasquez, 240 SCRA 502).

Respondents Arsenio Flores, Twano and Tagorda (Materials Testing Engineer II, Maintenance Division Chief, and Materials & Quality Control Division Chief, respectively) cannot validly claim that they signed the SWAs and Certificates of Final Inspection routinely. Said respondents were members of the Inspectorate Team for the three (3) dredging projects. During the 16 March 1995 hearing, respondent Twano testified that "xxx it has been a ruling or as (sic) a policy of our office, that no payment will be made to any contract without an Inspectorate Team xxx to inspect the projects xxx" (TSN of the 16 March 1995 hearing, p. 6). Likewise, in the same hearing respondent Tagorda testified that "xxx each member xxx of that Inspection Team were notified / requested to undertake such inspection because this is a requirement for any billing" (TSN of the 16 March 1995 hearing, p. 18). The inspection was clearly not ministerial and the signatures of respondents Arsenio Flores, Twano, and Tagorda in the Statement of Work Accomplished and Certificate of Final Inspection cannot be considered as superfluous. The inspection and issuance of corresponding certification were replete with serious consequences for the government. The respective testimonies of respondents Twano, Tagorda, and Mendoza during the 16 March 1995 hearing show that respondents collectively did not exert serious efforts in this regard. Respondent Twano testified that they saw the spoils on the jobsite but they did not measure what had been done because when they went there, they did not bring ant surveying instruments (TSN of the 16 March 1995 hearing, p. 7). For his part, respondent Tagorda testified that they could only make a "wild guess" as to the exact quantity of dredged materials, that they only made a "visual inspection" of the projects, and that they did not undertake a detailed measurement using sophisticated equipment (TSN of the March 16 1995 hearing, pp. 19-21). Similarly, respondent Mendoza testified that they just made a "wild guess" as to actual volume of excavated materials (TSN of the 16 March 1995 hearing, pp. 30-31).

Assuming without conceding, as respondent Tagorda contends, that the Materials & Quality Control Division does not have the necessary equipments to fully undertake the inspection, respondents could have ascertained by simple arithmetical computation the maximum volume of work that can be accomplished within a given period of time and given the number of dredging equipments used. Respondents could have thereby ascertained as bloated the claimed accomplishment.

The disbursements on the dredging projects cannot be presumed regular even in the absence of showing that they were either suspended or disallowed by the COA. It appears from the 5 May 1993 Memorandum of Graft Investigation Officer (GIO) J. Celrin Macavinta to then Ombudsman Conrado M. Vasquez that "then DPWH Undersecretary JOSE F. MABANTA even issued a Memorandum dated 31 January 1989 requesting the Assistant Secretary for Legal Services, DPWH, to undertake necessary legal steps for the recovery of overpayments made to the contractors".xxx xxx xxx

The participation of respondent Bernaldo in the bloating of accomplishment reports for Almacen River Project II and the resultant overpayment to its contractor cannot be overemphasized. She was a signatory to the SWA and the Certificate of Final Inspection. As correctly argued by her co-respondents (although their argument does not excuse their own conduct), respondent Bernaldo had the primary and direct responsibility for the implementation of Almacen River Project II as its Resident / Project Engineer.

xXxx xxx xxx

The DPWH Region III Eengineers individually elevated for review before the CA the findings of the Office of the Ombudsman. The appeal of Arsenio R. Flores was docketed as CA-G.R. SP No. 65606; the joint appeal of Angelito M. Twaño and Andrelito P. Tagorda was docketed as CA-G.R. SP No. 65544; and the appeal of petitioner Bernaldo was docketed as CA-G.R. SP No. 65440. In a Decision dated July 5, 2002 of the CA in the case of nvolving Arsenio R. Flores, the petition was granted and the assailed orders of the Office of the Ombudsman were annulled and set aside. The same conclusion was reached by the CA in the case of Angelito M. Twaño and Andrelito P. Tagorda in a Decision dated August 23, 2002. Both decisions of the CA pointed out that the reports of the Survey Team and Engr. David are were insufficient to hold the engineers administratively liable. However, this ruling of the CA was not heldruled differently in the case of petitioner Bernaldo. In its Decision dated January 31, 2002 and Resolution dated November 13, 2002 in CA-G.R. SP No. 65440, the CA held that the factual findings of the Office of the Ombudsman were supported by substantial evidence to hold petitioner Bernaldo administratively liable. Hence, the instant petition for certiorari.

Petitioner In the petition, Bernaldo claims that the letter-report of Engr. David is hearsay and self-serving since the complainant DPWH failed to present Engr. David to testify on his purported evaluation on the Almacen River II Pproject. She further argues, nonetheless, that the findings of Engr. David were not founded on actual facts but solely on his imagined perceptions of what could have happened in the implementation and accomplishment of the projects. She points out the rulings of the CA in the appeals of Arsenio R. Flores, Angelito M. Twaño and Andrelito P. Tagorda that the conclusions made by Engr. David in his letter-report were based on assumptions and perceptions. and She likewise contends that the change in the condition from at the time the Almacen River II pProject was reported as completed as compared to the state of the project at the time it was inspected by the Survey Team months thereafter reported completed deserves serious consideration in determining whether the alleged completion of the said project was in fact bloated. Petitioner Bernaldo further finally contendsasserts that these findings dwell on the same factual issues raised before the CA which already attained finality and, therefore, should be taken into account in the adjudication of her administrative charge.

The public respondents, through the Solicitor General, argue that the instant petition raises questions of fact which is beyond the scope of Rule 45 of the Rules of Court; that the rulings of the CA in the appeal of Arsenio R. Flores and joint appeal of Angelito M. Twaño and Andrelito P. Tagorda have no bearing upon this case; that there is substantial evidence proving the administrative guilt of petitioner Bernaldo for conduct prejudicial to the best interest of the service; and that the technical rules of procedure are not strictly adhered in administrative proceedings so the admission of the letter-report of Engr. David against petitioner Bernaldo does not amount to her denial of administrative due process.

We find merit in the petition.

Anent the preliminary matter regarding the mode of appeal to this Court, the principle that it is well-settled that Rule 45 of the Rules of Court which provides that only questions of law shall be raised in an appeal by certiorarii under Rule 45 of the Rules of Court before this Court recognizesadmits of certain exceptions,¹⁹, namely: (1) when the findings are grounded entirely on speculations, surmises, or conjectures; (2) when the inference made is manifestly mistaken, absurd, or impossible; (3) when there is a grave abuse of discretion; (4) when the judgment is based on misappreciation of facts; (5) when the findings of fact are conflicting; (6) when in making its findings, the same are contrary to the admissions of both appellant and appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent; and (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record.

To be sure, when the lower court or theadministrative tribunal lower court/tribunal fails to take into account certain relevant facts which, if properly considered, would justify a different conclusion is likewise an accepted exception to the prescription under Rule 45.²⁰

In the petition at bar, The first exception is evident in this case. The the Ombudsman’s factual finding that the percentage of completion of the Almacen River II Pproject has been bloated in the Statement of Work Accomplished and the Certificate of Final Inspection and Certificate of Final Acceptance signed by petitioner is not supported by substantial evidence but, rather, grounded entirely on unreliable, speculative evidence which may be susceptible to a different interpretation.

The Ombudsman’s finding of administrative liability of respondent DPWH Region III Engineers waswere based mainly on two documents: (a) the Field Survey and Investigation Report dated November 7, 1988 of the Survey Team and (b) the Letter-Report dated May 16, 1989 of Engr. Stephen L. David speculations, surmises, or conjectures.

However, it should be noted that Tthe November 7, 1988 report²¹ of the Ssurvey Tteam that the conditions of the projects did not meet the "requirements and specifications called for the efficient and profitable use of the streams" does notdoes not show state that that the cause of such findingunsatisfactory condition of the dredging projects is was due to the failure of the contractors to finish the jobcomplete them. It is more apparent from the overall observation of the Ssurvey Tteam that the continuous sedimentation of the dredging sites due to "strong magnitude of stream waves and tidal effects of the delta areas" may have caused the dubious completioncaused the destruction of works involved in the projects of the projects., thus: To quote from said report:

The following are the dredging and improvement projects in the area:

1. Channel Improvement of Tortugas, River, Balanga, Bataan;

2. Channel Improvement of Abucay River, Bataan;

3. Channel Improvement of Calaguiman River, Samal, Bataan;

4. Channel Improvement of Almacen River I, Hermosa, Bataan;

5. Channel Improvement of Almacen River II, Hermosa, Bataan;

6. Channel Improvement of Wawa River, Pilar, Bataan;

7. Channel Improvement of San Vicente River, Orion, Bataan;

8. Channel Improvement of Orani River, Orani, Bataan; and

9. Channel Improvement of Puerto Rivas River, Balanga, Bataan.

FINDINGS:

1.0. xxx xxx xxxThe adjacent areas within the deltas where the rivers are located are mostly fishponds and residential houses.

2.2. Some reclaimed areas near the vicinities of the rivers were filled with dredge materials and spoils taken from the excavated channel beds.

3.3. Most of the materials excavated from the rivers were composed of washed sand, sandy clay, sediment discharge, silt and garbage materials.

4.4. No permanent shore protections were constructed except in Puerto Rivas River where the existing retaining wall was extended few meters downstream.

5.5. Temporary shore protections made up of bamboo poles and sawali with very limited lengths were installed along some portions of the banks of Tortugas, Almacen I & II, Wawa and Abucay rivers utilizing the project savings for the bunk houses and risk insurances. These protective works were damaged to a great extent due to strong magnitude of stream waves and tidal effects of the delta areas.

6.1.Some contractors did not comply with the specified equipment to be used. In Almacen River Phase II, clampshell was used instead of dredge. The same was done on certain portion of Abucay River.

7.1.The narrow stream in the area, made the dredges’ movements limited. Instead, the other types of equipment were utilized (clampshell on bridge) to serve the purpose in the dredging and improvement works.

xxx xxx xxx

8.8. That almost all of the stream / river beds of the subject channels were silted, eroded, and filled with garbage materials.

9.9. Based on the result of our survey / investigation, it was observed that the present conditions of all the channels concerned do not meet the requirements and specifications called for the efficient and profitable use of the streams.

COMMENTS AND RECOMMENDATIONS:

1. The Programs of Work were prepared with insufficient data on hand.

2. The construction of temporary stream and shore protections did not effectively serve the purpose. These works were affected by strong currents and sea waves, causing destruction.

3. That river protections and river training works be undertaken in all the subject rivers before any dredging / deepening works be implemented. This must be included in the program of work and cost estimates.

4. That feasibility studies be made before any detailed engineering and construction and / or dredging works are done, including among others the hydrologic and geologic aspects of the area under consideration.

xxx xxx xxx

5.4.That experienced resident and staff engineers be directly involved / assigned to supervise the dredging on improvement projects.

6.4.That bi-monthly progress report of on-going projects be submitted to the DPWH Undersecretary’s Office for proper monitoring until such time that satisfactory completion of the works called for is attained.

7.4.That a continuous maintenance program for the subject rivers to be included in the allocation for the year round maintenance program of the DPWH Regional Office.

8.8. That some measures be initiated in the removal of accumulated materials which are the results of the continuous sedimentation, soil erosion and siltation in the area.

9.9. That hydrological analysis be undertaken before any channel design is made. These will determine the flood frequencies for the required return periods of flood designs necessary for channel improvements and dredging works.

10.10. That additional hydrolographic and topographic surveys of the subject streams and their estuaries extending at least one kilometric seawards be undertaken preparatory to the design and estimates of the channels to be improved.

xxx xxx xxx

Also attached is a chart showing the comparative volume of works. Included in this report are the field notes with the data superimposed on the printed copies of plans and cross-sections of each project.

The signatories to the above-quoted report included Engr. Rogelio A. Hernandez ("Engr. Hernandez") and Engr. Eustacio Y. Cano, ("Engr. Cano"), who were both presented as witnesses by complainant DPWH during the hearings before the AABEngr.. Engr. Hernandez and Engr. Cano of the Ssurvey Tteam both explained testified that the continuous sedimentation, soil erosion, or siltation of the rivers could have wiped out the traces of the dredging projects. The relevant portions of their testimonies are reproduced below:

Engr. Hernandez testifiedFrom the testimony of Engr. Hernandez:²²:

Q-     And, how come there was an observation of "strong magnitude of stream waves." What do you mean by this in layman’s term, Mr. Witness, "and tidal effects of the delta areas"?

A-     When we went on that particular projects (sic), your Honor, we were offered . . . and observed that those protective works were already damaged to a great extent and we were told that it was destroyed by strong river waves.

Q-     So, you mean to say, Mr. Witness, considering that the waves are very strong and the tidal effects are very substantial, can we stipulate, Mr. Witness, that this has also affected the spoils that were taken out of the river? Is there a possibility, Mr. Witness? That’s why when you went to that area, you saw only these much spoils that you have in these projects because of the strong magnitude of stream waves and tidal effects.

A-     Yes.

Q-     I think, this is connected with - - In comments, and Recommendations No. 2, "the construction of temporary streams and shore protections did not effectively serve the purpose. These works were affected by strong currents and sea waves, causing destruction." So, when you say, "causing destruction", these currents are not just ordinary everyday currents but extra-ordinary, causing destruction. Am I right, Mr. Witness?

A-     Yes.

Q-     And in No. 8, Mr. Witness – "That some measures be initiated in the removal of accumulated materials which are the results of continuous sedimentation, soil erosion and siltation in the area." So, Mr. Witness, am I right stating that there are continuous sedimentation, continuous soil erosion, continuous siltation in the area even after the implementation of the projects?

A-     Yes, your Honor.

Q-     So, that means to say, if you go there, after a few months after the project had already been completed, is it possible that you will see as if nothing has happened because of the continuous sedimentation, continuous siltation, continuous erosion? So, we can now conclude that nothing happened, only 1% of the project was accomplished? Is it possible?

A-     There is a possibility.

Engr. Cano corroborated Engr. Hernandez on this point as followsFrom the testimony of Engr. Cano:²³:

Q-     So, what Mr. Hernandez has surveyed during that time was only what he had seen after several months the project was accomplished.

A-     Thate was very true.

Q-     And that the scenario of the project which was there when you conducted the survey is very much dissimilar, is not the same as what the project was accomplished. Is that right?

A-     In all cases, definitely, it will not appear the same.

Xxxx xxx xxx

Q-     So, there are also projects, Mr. Witness, that there’s a possibility that it has been 100% accomplished but due to the elements of nature, due to water, erosion, there’s a possibility sometimes when you go there for . . . almost as if nothing had happened in the project because there was no soil protection?

A-     That is very true by nature and then by gravity until erosion.

xXxx xxx xxx

Q-     A project claimed to have been 100% completed, upon your survey, was determined that it was only 1.13% done. Now, as a hydrologist, is it possible for this figure to be correct, from 100% to 1.13%?

A-     As far as the completion of the project on the hydrological aspect, we can say that it is 100% but after sometime, due to the effect of nature, the sediment, this will be possible to be offset.

Q-     Is this possible?

A-     Yah, as far as hydrology is concerned, by reason of sedimentation and sediment transport, erosion and wave movement.

Q-     After examining many projects, have you come across another project which have (sic) the same result?

A-     Yah. Sometimes, even less than this.

Q-     Sometimes, less than this? What do you mean by that?

A-     None at all.

Q-     You mean, the project claimed to have been completed, wala na talaga? After how many . . . in this project, this is Almacen River, Phase I, by the conditions of the river itself, could this possibly happen to this river?

A-     Very much possible.

Q-     How come? How could you explain?

A-     Because I undertook actual observation.

Q-     Of the river itself?

A-     Yah, of the movement of the sediments from the mountain upstream going to the downstream of the river. That was my observation.

Q-     How do you describe the movement of the tide of the river?

A-     Inasmuch as the material contents of that river at that time, mostly gravel and white sand and some other sediments, the movement was very much faster.

Xxxx xxx xxx

Q-     You said that it is possible, even with the volume of 60,656 cubic meters? 60,656.35, it is the quantity programmed.

A-     Yah, it will be possible because of, as I have said, my observation that the material was mostly sand.

Q-     For how long?

A-     Even in a matter of month - -

Q-     One month?

A-     Yah, specially, if there are heavy rains, like typhoons.

xXxx xxx xxx

Clearly from the foregoing, the prosecution’s own witnesses It is notconfirmed that the disputed that the sSurvey Tteam conducted itsthe inspection only months after the questioned completion of the projects. and after Moreover, they testified that it was quite possible that the projects were completed but the the rainy season, thus, bolstering the fact that the cause of the seeming deficiency of work they found during their inspection was accomplished on the projects wasdue to the continuous sedimentation, soil erosion, or siltation of the rivers or the destruction of works by heavy rains or typhoons.

The letter-report of Engr. David similarly lacks probative value to prove does not prove that none of the projectsthat the Almacen River II Project were was not fully completed as of August 31, 1988, as reported in the SWA and Certificates of Final Inspection and Acceptance. The hypothetical and speculative nature of said letter-report is evident in the following excerpts:, specifically, with respect to the Almacen River II project, thus:

Sir:

In compliance to your directive to study / evaluate the pertinent document regarding the Channel Improvement of Almacen River [II], a dredging project in Hermosa, Bataan, I am hereby submitting my report / observation:

1.0.Project: Channel Improvement of Almacen River II in Hermosa, Bataan

Contractor: L.J. Cruz Construction

Contract Cost: P3,492,000.00

Start date: December 20, 1988

Expiry date: April 29, 1988

Scope of work: Excavation of 53,523.65 cu.m. by crane on barge and 96,436 cu.m. by 16" dredge.xxx xxx xxx

2. The first partial collection was made on December 19, 1987; seven (7) days after the issuance of the Notice to Proceed dated December 22, 1987. It involved 13,380 cu. m. of excavation, and bunk house worth P30,000.00. If the contractor used two (2) cranes on barge (it was alleged that the contractor has only two cranes on barge) with a capacity of 19.5 cu.m. hr./crane for seven days, each crane must operate for not less than 49 hrs./day. Since a day consists only of 24 hrs. this collection is quite impossible.

3. After the third collection dated April 19, 1988, a total volume of 53,523 cu. m. was excavated. This corresponds to 40.14% accomplishment as stipulated in the approved contract.

4. As of July 31, 1988, the accomplished work is still 40.14%.

5. Fourth partial collection was made on August 14, 1988. Since the accomplishment remained 40.14% as of July 31, 1988, [this] collection must cover only 14 days (August 1-14, 1988). Based on the recorded payment to the contractor, the volume excavated was 68,250 cu. m. Using the same computation, each crane must operate for not less than 125 hrs./day. Again, this is impossible.

6. On August 31, 1988, the final collection was made. This covered 28,186.50 cu. m. excavation for a period of 17 days. From the same computation, each crane must operate for not less than 42,51 hrs./day.

7. The project was reported to be 100% accomplished as of Final Collection dated August 31, 1988. Whereas, on the verified accomplishment dated November 7, 1988, only a total of 31,217 cu. m. was done or 21% of total work.

xxx xxx xxx

Respectfully submitted:

(Sgd.)

STEPHEN L. DAVID

Senior Civil Engineer

It is obvious from the language of the above--quoted letter-report of Engr. David that that the variables used to support the analysishis mathematical computations of the amount of work completed by the contractor were based on an assumption that only two cranes were used for the project. There is no evidence on record that only two cranes were actually used in the said project. The Ombudsman’s finding that the Program of Works corroborates Engr. David’s assumption that only two cranes were used cannot be upheld by this Court, considering that the undated Program of Works appears to be a mere estimate of the costs of the project as approved by the DPWH. The Program of Works does not preclude the possibility that more than two cranes may have been in fact used for the project. Thus, Engr. David’s conclusion thatthat the equipments utilized on the projects could not possibly accomplish the such amount of work as reported werase hypothetically based and purely speculative. The number of cranes on barge used and the capacity of each lacked factual basis. The engineers asserted that L. J. Cruz Construction had actually four (4) cranes on barge for the Almacen River II project contrary to the mere speculation of Engr. David that there were only two (2). Neither the capacities of these cranes on barge (19.5 cubic meters / hour) were matters of fact. More notably,In addition, Engr. David clearly did not take into account the cause and effect of the continuous sedimentation, soil erosion or siltation of the river during thes months after the reported completion of the project and prior to the Ssurvey Tteam’s conducted its inspection was not given any consideration by Engr. David in his evaluation of the said projectinspection. Finally, this Court finds that the said letter-report is of suspect authenticity and credibility, considering that it was not under oath nor did Engr. David, who was not presented as a witness, ever attest to its contents.

Furthermore, the fact that petitioner Bernaldo, as Project Engineer, had over-all supervision and responsibility over the Almacen River II Project does not justify a different treatment of her case from those of her co-respondents. Here, the complainant/prosecution in the administrative case failed to discharge its burden to prove the fact of "bloating" or overstatment of the percentage of completion of the said project which purportedly led to overpayments to the contractor. Thus, there is no factual basis to find petitioner guilty of "conduct grossly prejudicial to the best interest of the service."

It is well-settled that in the hierarchy of evidentiary values, proof beyond reasonable doubt is at the highest level, followed by clear and convincing evidence, preponderance of evidence and substantial evidence, in that order.²⁴ This Court has consistently held that substantial evidence is all that is needed to support an administrative finding of fact.²⁵ This is not to say, however, that administrative tribunals may rely on flimsy, unreliable, conjectural evidence. Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.²⁶ Where the decision of the Ombudsman is not supported by substantial evidence, but based on speculations, surmises and conjectures, as in the present case, this Court finds sufficient reason to overturn the same.

The conclusion of the Office of the Ombudsman that no serious effort was done by the engineers to determine the extent of work accomplished on the projects is also bereft of supporting evidence. The testimonies of Twaño, Tagorda, and Mendoza pertain to their respective participations to the projects which differ to the official duties of petitioner Bernaldo. No other evidence has been presented against her showing that she miserably failed to discharge her official duties to warrant her suspension for "conduct grossly prejudicial to the best interest of the service".

WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED. The Resolution dated November 13, 2002 and Decision dated January 31, 2002 of the CA in CA-G.R. SP No. 65440 as well as the Order[s] dated June 7, 2001 and December 26, 2000 of the Office of the Ombudsman in OMB-ADM-0-93-0411 are hereby REVERSED and SET ASIDE. No Ccosts.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO
Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice Chairperson
ANTONIO T. CARPIO Associate Justice	RENATO C. CORONA Associate Justice
ADOLFO S. AZCUNA Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

¹ Rollo, pp. 46-49.

² Penned by Associate Justice Portia Aliño-Hormachuelos with Associate Justices Eriberto U. Rosario, Jr. and Mariano C. Del Castillo concurring,; Iid. at 38-47.

³ Id. at 83-90.

⁴ Id. at 146-174.

⁵ Id. at 177-185.

⁶ Id. at 237.

⁷ Id. at 236.

⁸ Records, Folder 2, pp. 22-24

⁹ Id. at Records, Folder 2, pp. 110-111

¹⁰ Id. at 3-10

¹¹ TSN dated October 5, 1994.

¹² TSN dated October 19, 1994.

¹³ Records, Folder 3.,

¹⁴ Records, Folder 5, p. 56.

¹⁵ Id., p. 57.

¹⁶ Records, Folder 3, p. 51.

¹⁷ Id., p. 58.

¹⁸ Id., pp. 59-62.

¹⁹ Uy and Yusay v. Villanueva and NLRC, (G.R. No. 157851, June 29, 2007 526 SCRA 73.)

²⁰ Orquiola v. Court of Appeals, 386 SCRA 301G.R. No. 141463, August 6, 2002.

²¹ Supora note 8.

²² TSN dated October 5, 1994, pp. 32-34.

²³ TSN dated October 19, 1994, pp. 9-10; and, 20-22.

²⁴ Energy Regulatory Board v. Court of Appeals, G.R. No. 113079, April 20, 2001357 SCRA 30.

²⁵ Id.

²⁶ Velazquez v. Hernandez, 437 SCRA 357 G.R. 150732, August 31, 2004.

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