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[G.R. No. 143992. October 24, 2000]

MONTEJO vs. COA, et al.

EN BANC

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated OCT 24 2000.

G.R. No. 143992 (Montejo vs. Commission on Audit, et al.)

Before us is a motion for reconsideration filed by the petitioner from the resolution issued by this Court dated August 15, 2000 dismissing the petition for having been filed out of time and for failure to show that the respondent committed grave abuse of discretion.

Petitioner argues that his petition was timely filed and prays for this Court to make a definite ruling on the issues involved.

The petition was indeed filed out of time not under Rule 65 of the Rules of Civil Procedure, as petitioner insists, but under Rule 64 thereof which specifically pertains to review of judgments and final orders of the Commission on Audit by this Court. Sec. 3, Rule 64 states:

Sec. 3. Time to file petition.- The petition shall be filed within 30 days from notice of the judgment or final order or resolution sought to be reviewed. The filing of a motion for new trial or reconsideration of the said judgment or final order or resolution, if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed. If the motion is denied, the aggrieved party may file the petition within the remaining period, but shall not be less than five (5) days in any event, reckoned from the notice of denial.

The petition states that the decision of the COA dated March 31, 1998 was received on March 5, 1999 (or almost a year later) and that from this decision petitioner filed a motion for reconsideration on April 5, 1999; that the resolution of the COA denying his motion for reconsideration dated November 11, 1999 was received on July 11, 2000. Under the quoted rule, petitioner has thirty (30) days from receipt of the questioned decision or final order within which to file petition for certiorari with this Court. If a motion for reconsideration is filed, which the petitioner did, the period that elapsed from receipt of the decision to the filing of the motion for reconsideration will be deducted from the original 30 day period and the petitioner has only the remaining period, but not less than five (5) days), within which to file petition with this Court. Since the motion for reconsideration was filed on the 31St day from receipt of the decision and the COA did not make a finding as to the timeliness of the motion for reconsideration, petitioner had only five days from July 11, 2000 the date of receipt of the order of denial of the motion for reconsideration within which to file the petition, or until July 16, 2000. This day being a Sunday, the petition fell due the following business day, July 17, 2000. The petition filed on August 2, 2000 was filed out of time.

At any rate, we find that the petition failed to establish grave abuse of discretion committed by the Commission on Audit.

The Commission on Audit simply held that the disbursements made by the petitioner amounting to P962,353.75 as confidential and intelligence expenses are unlawful for the sole reason that the appropriation for the said expense was disapproved by the DBM on April 25, 1994 and the request to lift order of disallowance was denied in an order dated September 19, 1994.

No money shall be paid out of the local treasury except in pursuance of an appropriation ordinance or law. It is not disputed that the disbursements made under the disapproved appropriation are not supported by a valid appropriation, and must perforce be disallowed.

The petitioner's argument that the COA erred in treating the appropriation for confidential and intelligence expense as discretionary expense is without merit. When DBM disapproved the entire appropriation for intelligence expense, it approved on the other hand, the appropriation for discretionary expense but only up to the amount of P20, 893.47. COA merely deducted the amount allowed by the DBM for discretionary expense i.e., P20,893.47 from the total of the disallowed disbursements made by the petitioner for intelligence expense. Thus, the petitioner and other named officials in the Notices of Disallowance are being required by COA to refund only the amount of P94 1,460.28 out of the total disbursements for intelligence expenses in the amount of P962,353.75. Wherefore, the motion for reconsideration is denied.

Very truly yours,

LUZVIMINDA D. PUNO

Clerk of Court�

(Sgd.) MA. LUISA D. VILLARAMA

Asst. Clerk of Court

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