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EN BANC

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated FEB 3 2004.

G.R. No. 144459 (Rhoel S. Acoba, vs. The Court of Appeals, The Civil Service Commission, & The Land Bank of the Philippines.)

This petition for certiorari seeks to annul the decision 1of the Court of Appeals, dated April 24, 2000, in CA-G.R. SP No. 49805, as well as its Resolution 2dated June 29, 2000, denying petitioner's Motion for Reconsideration. The appellate court affirmed the Civil Service Commission's (CSC) Resolution No. 982873, 3which had sustained the decision of respondent Land Bank of the Philippines (LBP) to dismiss petitioner.

The facts, as culled from records, are as follows:

On May 11, 1994, the LBP management formally charged four (4) of its employees assigned to its Field Office in Ilagan, Isabela, with violations of the Civil Service Law (P.D. No. 807, as amended). The four, namely: Rogelio S. Pascua (Senior Loans and Credit Officer), Reonel T. Nicolas, (Loans and Credit Analyst II), Vicente G. Calipjo, (Loans and Credit Officer II) and herein petitioner Rhoel S. Acoba, (Loans and Credit Officer I), were charged in Administrative Case No. 94-07, with "Dishonesty, Gross Neglect of Duty, Grave Misconduct, Inefficiency and Incompetence in the Performance of Official Duties, Violation of Reasonable Office Regulations, and Conduct Prejudicial to the Best Interest of the Service."

LBP alleged that on August 18, 1992, its Ilagan Field Office, approved and opened a credit line/facility of P1,169,020.00 in favor of Anaraar Multi-Purpose Cooperative, Inc., (AMPCI) in Carikkikan Norte, Ilagan. Said credit facility was earmarked for the financing of the following AMPCI livelihood projects:

PROJECT��������������������������� AMOUNT

a) Palay Production������������������������� P 224,000.00

b)"Hito "(Catfish) Production��������������������� 776,000.00

c) Acquisition/Purchase of

Four (4) Water Pumps�������������������������������� 169,020.00

AMPCI launched its catfish production project by developing and maintaining a fishpond in Carikkikan, Ilagan, Isabela, buying the water pumps needed, and purchasing fingerlings, with proceeds of the LBP credit line. The purchase and payment orders were issued by the LBP Ilagan Field Office, which then debited AMPCI's account for the amounts paid.

Even prior to the approval of AMPCI's credit line, however, petitioner and his co-employees, namely, Rogelio S. Pascua, Reonel T. Nicolas and Vicente G. Calipjo, in collaboration with Elias Pambid, Nestor Rodriguez, Edwin Cortez and Marcelino Pascua, all private persons, were operating their own hito fishpond near the AMPCI pond. Both fishponds got their supply of fingerlings from one supplier, Isabela Agro Aqua Supply, Co., a firm owned by Nestor Rodriguez, Edwin Cortez and a certain Gerry Cortez.

The hearing officer found that petitioner and his colleagues took advantage of their respective positions at LBP and conspired with one another in diverting deliveries of hito fingerlings intended for AMPCI to their privately-owned/operated fishpond, to wit:

The misdeed was done by using improperly prepared or spurious purchase and payment orders. Petitioner and his co-employees likewise caused one (1) of the four (4) water pumps bought by AMPCI to be delivered to their fishpond and used the pump in their fish culture project, thus depriving the cooperative of its use.

On June 27, 1996, Administrative Case No. 94-07 was resolved by the LBP hearing officer as follows:

WHEREFORE, Premises considered, it is respectfully recommended that the above-named RESPONDENTS be dismissed from the service for sufficiency of evidence and that the case against RESPONDENT Vicente G. Calipjo be dismissed and that all benefits denied to him during the pendency of this case be restored and paid.

SO RESOLVED. 4

The hearing officer found that there was substantial evidence sufficient to establish that petitioner, together with Rogelio S. Pascua and Reonel T. Nicolas were responsible for "ghost" deliveries of hito fingerlings; diverted the delivery of a water pump intended for AMPCI; then tried to conceal their misdeeds by convincing the AMPCI officers to completely deny the "ghost deliveries" of fingerlings. In sum petitioner and his colleagues were found to be remiss in the performance of their duties and responsibilities. 5The hearing officer likewise held that petitioner and his confederates had acted in conspiracy. 6

The General Counsel of LBP reviewed the hearing officer's verdict and recommended:

Accordingly, we affirm the Hearing Officer's verdict of DISMISSAL from the service on Respondents Rogelio S. Pascua, Reonel T. Nicolas and Rhoel S. Acoba, and respectfully recommend the reversal of Respondent Vicente G. Calipjo's acquittal and pronounce him GUILTY of Simple Neglect of Duty. There being one mitigating circumstance with no aggravating circumstance, the penalty of Suspension for one (1) month and one (1) day which is within the range of the minimum degree may be imposed. However, since he is no longer in the service, we respectfully recommend that the penalty of Fine equivalent to his one (1) month salary should instead be imposed on Respondent Calipjo. 7

In its Resolution No. 97-025 8, the LBP's Board of Directors approved the foregoing recommendation. On February 18, 1997, petitioner moved for reconsideration but the Board denied the same in its Resolution No. 97-537. 9

Petitioner then elevated the matter to the Civil Service Commission (CSC), alleging that neither Resolution No. 97-025 nor 97-537 was supported by evidence on record, and both were not in accord with law and jurisprudence.

On November 6, 1998, however, the CSC dismissed the appeal and affirmed Resolution Nos. 97-025 and 97-537 of LBP. The CSC found substantial evidence showing that through machinations, petitioner and his companions were able to divert three (3) deliveries of fingerlings intended for AMPCI, to their privately owned fishpond and petitioner and his companions then issued spurious purchase and payment orders to cover up the diversions.

Petitioner then filed with the Court of Appeals a petition for review, docketed as CA-G.R. SP No. 49805. The appellate court, however, denied his petition and affirmed the CSC resolution, thus:

WHEREFORE, the petition is hereby DENIED for lack of merit, and CSC Resolution No. 982464 1 0 (sic) AFFIRMED in its entirety. No pronouncement as to cost.

SO ORDERED. 1 1

The Court of Appeals found the action of CSC to be in accord with the law and the evidence on record. On the matter of absence of proof of conspiracy, the Court of Appeals held that direct proof is not essential to show conspiracy as it may be inferred from the acts of the accused before, during, and after the commission of the offense, which are indicative of a joint purpose, concerted action, and concurrence of sentiments.

Petitioner moved for reconsideration, which the Court of Appeals denied on June 29, 2000.

Hence, the instant petition, alleging that THE COURT OF APPEALS ERRED IN:

1)� ....NOT RULING THAT PETITIONER WAS NOT GUILTY OF DISHONESTY, GROSS NEGLECT OF DUTY, GRAVE MISCONDUCT, INEFFICIENCY, AND INCOMPETENCE IN THE PERFORMANCE OF OFFICIAL DUTIES, VIOLATION OF REASONABLE REGULATIONS, AND CONDUCT PREJUDICIAL TO THE BEST INTEREST OF THE SERVICE

2)� ....NOT RULING THAT CONSPIRACY WAS NOT PROVEN IN THIS CASE

3)� ....RULING THAT PETITIONER WAS RESPONSIBLE FOR FACTUAL AND APPARENT IRREGULARITIES IN SECURING THE APPROVAL OF THE QUESTIONED LOAN TRANSACTIONS

4)� ....RULING THAT THE FINDINGS OF FACT OF THE RESPONDENT CIVIL SERVICE COMMISSION WERE DULY SUPPORTED BY SUBSTANTIAL EVIDENCE 1 2

After a review of the record, including the submissions of the parties, we find no merit in the petition. It is improvident to give it due course.

In a special civil action for certiorari, under Rule 65 of the 1997 Rules of Civil Procedure, factual issues may not be brought before us. Here petitioner's submission, however, shows that he is raising issues concerning alleged errors and misapprehensions of facts committed by the Court of Appeals. These are not correctible by certiorari under Rule 65. The only question that may be raised in a petition for certiorari is whether the respondent has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction. It is not the office of a writ of certiorari to correct errors of fact or law which the lower court may have committed. 1 3 An error of judgment committed by a court in the exercise of its legitimate jurisdiction is not the same as grave abuse of discretion. There is grave abuse of discretion when a court or tribunal exercises its judgment in a capricious or whimsical manner, so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility. An abuse of discretion is not sufficient by itself to justify the issuance of a writ of certiorari. The abuse must be grave and patent, and it must be shown that the discretion was exercised arbitrarily and despotically. 1 4

Petitioner could have availed of the remedy of petition for review under Rule 45 within fifteen (15) days from the denial of his motion for reconsideration of the Court of Appeals' decision. The record shows that petitioner received a copy of the appellate court's resolution denying reconsideration on July 14, 2000. He had up to July 29, 2000 to file his appeal. This petition, however, was filed only on August 31, 2000 or after the period to appeal had lapsed. A special civil action for certiorari will not lie as a substitute for the lost remedy of appeal. 1 5

The present petition raises mainly factual issues. We must stress that we are not a trier of facts whether in a petition for review under Rule 45 or a petition for certiorari under Rule 65. A writ of certiorari cannot be used to correct a lower tribunal's evaluation of the evidence and its factual findings. 1 6

In any event, we find no grave abuse of discretion committed by the Court of Appeals in affirming the findings of the Civil Service Commission.

WHEREFORE, the petition is DISMISSED, and the assailed decision and the resolution of the Court of Appeals in CA-G.R. SP No. 49805 are AFFIRMED.

Puno, J., no part.

Azcuna, J., on official leave.

Very truly yours,

(Sgd.) LUZVIMINDA D. PUNO
Clerk of Court