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[G.R. No. 143729.� March 25, 2003]
DESIERTO vs. VILLAVERT
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this court dated MAR 25 2003.
G.R. No. 143729 (Hon. Aniano Desierto, in his capacity as the Ombudsman vs. Douglas Villavert.)
Assailed in this special civil action for certiorari is the decision1 of the Court of Appeals dated April 25, 2000 in CA-G.R. SP No. 57753. it reversed and set aside the memorandum2 dated July 17, 1997, approved by petitioner Ombudsman Aniano Desierto,3 as prepared by Director Virginia Palanca-Santiago of the Office of the Ombudsman-Visayas, and recommended by Deputy Ombudsman-Visayas Arturo C. Mojica, in connection with Administrative Case No. OMB-VIS-ADM-95-0088. In said administrative case, respondent Douglas Villavert, sales and promotion supervisor of the Cebu branch of the Philippine Charity Sweepstakes Office (PCSO), was held liable for grave misconduct and/or dishonesty, and he was recommended for dismissal from the service.
Petitioner Desierto's motion for reconsideration of the CA decision was denied in a resolution4 dated June 16, 2000.
The facts as found by the Court of Appeals are as follows:
[D]ouglas Villavert is a Sales and Promotion Supervisor of the Cebu Branch of the Philippine Charity Sweepstakes Office (PCSO). As such, he, along with other sales and Promotion Supervisors, was tasked with selling and disposing of PCSO Sweepstakes tickets he withdraws. The tickets he [withdraws] are already considered sold. To dispose of the tickets, he was allowed to consign the same to sales agents, sidewalk peddlers, and hawkers.
[Villavert] alleges that due to the failure of the people to whom
he consigned the tickets to remit the proceeds of their sales to him, he
incurred ticket accountabilities, which, according to a Commission on Audit
(COA) audit reached P997,373.60, covering the period from March 20, 1994
to June 12, 1994. Accordingly, the COA, in a letter-complaint to the Office of
the Ombudsman-Visayas, accused [Villavert] of violating Article 2175 of the Revised Penal Code and
Section 3 of Republic Act 30196 as
well as Republic Act No. 6713.7
In the meantime, [Villavert] proposed a plan for the settlement of his unpaid ticket accountabilities and sought the approval thereof from then PCSO Chairman Manuel L. Morato. The PCSO Board approved the same.
Graft Investigation Officer Edgemelo C. Rosales issued a resolution recommending the dismissal of the complaint against petitioner. However, this was not approved by.Deputy Ombudsman-Visayas Arturo C. Mojica, who recommended approval of the Memorandum of Director Virginia Palanca-Soriano dated July 17, 1997 which recommended [Villavert's] dismissal from the service. On November 7, 1997, public respondent [petitioner herein] Ombudsman Aniano A. Desierto approved the said Memorandum. [Villavert's] motion for reconsideration was denied.8
After the Ombudsman's denial of his motion for reconsideration, Villavert filed a petition for review on certiorari before the Court of Appeals, docketed as CA-G.R. SP No. 57753, which found in favor of Villavert. The Court of Appeals found credible Villavert's explanation that he failed to collect from the persons to whom he consigned his sweepstakes tickets. It also noted that the PCSO board of directors recognized Villavert's explanation when it approved the latter's proposal for the settlement of his accounts, evidencing PCSO's intent to retain Villavert in the service. As regards the alleged violation of Article 217 of the Revised penal Code, the Court of Appeals ruled that there is ample proof that Villavert did not put to his personal use the proceeds of his ticket sales.9 Moreover, the appellate court cited the affidavit of desistance filed by William H. Medici, regional manager of the PCSO Regional Office in Cebu City, before the Regional Trial Court, Cebu City, Branch 16. In said affidavit, Medici explained the difficulty encountered by respondent in collecting remittances from his agents, who either failed to pay or absconded with the proceeds. Medici added that then PCSO chairman and acting general manager Manuel L. Morato and the PCSO board had approved Villavert's proposed settlement of accounts, and that Villavert had started paying his obligations per said settlement.10
Hence, this petition, in which petitioner asserts that the Court of Appeals:
.ERRONEOUSLY CLEARED RESPONDENT VILLAVERT FOR GRAVE MISCONDUCT AND/OR DISHONESTY INSPITE OF EVIDENCE TO THE CONTRARY.11
This petition raises the sole question of whether or not the Court of Appeals erred in clearing respondent Douglas Villavert of grave misconduct and/or dishonesty. It calls for a review of the evidence presented below.
It is apparent that this petition involves a question which is not a proper subject of a petition for certiorari under Rule 65 of the Rules of Court.
An order of dismissal, whether right or wrong, is a final order, and hence a proper subject of appeal via a petition for review under Rule 45 and not a petition for certiorari pursuant to Rule 65. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. Although the special civil action of certiorari is not proper when an ordinary appeal is available, it may be granted where it is shown that the appeal would be inadequate, slow, insufficient, and will not promptly relieve a party from the injurious effects of the order complained of, or where appeal is inadequate and ineffectual. Nevertheless, certiorari cannot be a substitute for the lost or lapsed remedy of appeal, where such loss is occasioned by the petitioner's own neglect or error in the choice of remedies.12
The exception to this rule is when such right to appeal was lost through no fault of the party entitled thereto.13
The petitioner has failed to satisfactorily show or explain why the remedy of appeal was not taken. This special civil action was resorted to as a substitute for the lost or lapsed remedy of appeal, and since none of the exceptions to the rigid rule barring substitution of remedies was shown to exist in this petition, or even indicated in the pleadings, this petition must be dismissed.
WHEREFORE, the petition is DENIED. The assailed decision of the Court of Appeals dated April 25, 2000, and its resolution dated June 16, 2000, in CA-G.R. SP No. 57753, are AFFIRMED.
Very truly yours,
LUZVIMINDA D. PUNO
Clerk of Court
(Sgd.) MA. LUISA D. VILLARAMA
Asst. Clerk of Court
Endnotes:
1 Rollo, pp. 23-29. Penned by Salazar-Fernando, J., with Sandoval-Gutierrez and Valdez, Jr., JJ., concurring.
2 Id. at 42-44. Stress supplied.
3 In the Court of Appeals decision, Arturo C. Mojica, Deputy Ombudsman-Visayas, and Commission on Audit (COA) R-VII, Cebu City, are included as respondents. See Rollo, p. 23.
4 Rollo, pp. 30-31.
5 ART. 217. Malversation of public funds or property. - Presumption of malversation. - Any public officer who, by reason of the duties of his office, is accountable for public funds or property shall appropriate the same or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property wholly or partially, or shall otherwise be guilty of the misappropriation of malversation of such funds or property shall suffer:
1. The penalty of prison correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed two hundred pesos.
2. The penalty of prison mayor in its minimum and medium periods, if the amount involved is more than 200 pesos but does not exceed 6,000 pesos.
3. The penalty of prison mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than 6,000 pesos but is less than 12,000 pesos.
4. Penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than 12,000 pesos but is less than 22,000 pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.
In the cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use.
6 Also known as "The Anti-Graft and Corrupt Practices Act."
7 "The Code of Conduct and Ethical Standards for Public Officials and Employees."
8 Rollo, p.24.
9 Id. at 28.
10 Id. at 27.
11 Id. at 16.
12 Fajardo v. Bautista, G.R. Nos. 102193-97, 10 May 1994, 232 SCRA 291.
13 Sy v. Romero, G.R. No. 83580, 23 September 1992, 214 SCRA 187.
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