Gobenciong v CA

Velasco, J. (2008)

Facts:
• Dr. Pedro Gobenciong was Administrative Officer IV in Eastern Visayas
Regional Medical Center (“the hospital”), a public hospital.
• In 1996, the hospital planned to buy a hemoanalyzer/particle counter.
• A public bidding was had, where Alvez Commerical, Inc. won. A Purchase
Order was issued for 2 nebulizers and 1 particle counter.
• The nebulizers and hemoanalyzers appeared to have been delivered, as per:
o Certification of Acceptance signed by Engr. Jocano and Supply Officer
Babula.
o Sales Invoice signed by Supply Officer Babula acknowledging receipt
of the goods in good condidion.
o COA Inspection Report certified by Engr. Jocano and Gobenciong
attesting that the goods had been inspected as to quality and quantity.
• As it turned out, the hemoanalyzer was never actually delivered.
• Dr. Flora dela Pena, head of the hospital’s Laboratory Unit, filed an
administrative complaint with the Office of the Ombudsman-Visayas
(“Ombudsman”) charging Gobenciong, Babula, Jocano, and 3 other persons
with Falsification of Public Document and Misconduct.
• Upon Dela Pena’s motion, Ombdusman placed respondents, save one, under
a six-month preventive suspension and directed the proper DOH Officer to
immediately implement the Order.
• Gobenciong sought reconsideration of this order, but without awaiting the
Ombudsman’s action thereon, Gobenciong filed a petition for certiorari in the
CA.
o CA denied Gobenciong’s petition for certiorari on the strength of Sec.
24 in relation to Sec. 27 of RA 6770, which expressly empower the
Ombudsman, under defined conditions, to preventively suspend, for a
maximum period of six months, all but three categories of public
officials and employees under investigation by his office and to direct
the immediate implementation of the corresponding suspension order.
• Ombudsman eventually found Gobenciong, et al guilty of Conduct Grossly
Prejudicial to the Best Interest of the Service and imposed a penalty of 1 year
suspension without pay.
o Gobenciong filed a motion for reconsideration, which Ombudsman
denied, prompting Gobenciong to appeal to the CA.
o CA partially granted Gobenciong’s appeal and set aside the
Ombudsman’s Decision in insofar as it imposed the penalty of 1 year
suspension without pay. Relying on Tapiador v Office of the
Ombudsman, it held that the disciplinary power of the Ombudsman in
administrative cases is limited only to recommending to the disciplining
authority the appropriate penalty to be meted out.
Issues:
1. Whether a preventive suspension ordered by the Ombudsman is immediately
executory, notwithstanding a pending motion to reconsider the corresponding
order?
2. Whether the disciplinary power of the Ombudsman is merely
recommendatory?
3. Whether RA 6770, on the ground of undue delegation of legislative authority
and under the equal protection clause, is unconstitutional?

Held:
1. YES. Reading and harmonizing together Sec. 27(1) of RA 6770 and Sec. 8,
Rule III of the Ombudsman Rules of Procedure, it is at once apparent that the
immediately executory quality of a preventive suspension order does not
preclude the preventively suspended respondent from seeking
reconsideration of such order. The existence and availment of the right to
move for reconsideration does not motu proprio stay the immediate execution
of the provisionary order of preventive suspension. An order of preventive
suspension is a preliminary step in an administrative investigation. And it is
usually made immediately effective and executory to prevent the respondent
from using his/her position or office to influence prospective witnesses or
tamper with the records which may be vital to the prosecution of the case.

2. NO. CA’s cited portion of the Tapiador case is a mere obiter dictum which
cannot be cited as a doctrinal pronouncement of the Court. Furthermore, the
refusal, without just cause, of any officer to comply with an order of the
Ombudsman to penalize an erring officer or employee, which is a ground for
disciplinary action, is a strong indication that the Ombudsman’s
“recommendation” is not merely advisory in nature but is actually mandatory
within the bounds of law. By stating that the Ombudsman “recommends” the
action to be taken against an erring officer or employee, the provisions of the
Constitution and in RA 6770 intended that the implementation of the order be
coursed through the proper officer (Ledesma v CA).

3. NO. The Office of the Ombudsman is a creature of the Constitution. The

framers of the 1987 Constitution intended the office to be strong and effective,
with sufficient bite and muscle to enable it to carry out its mandate as
protector of the people against the inept, abusive, and corrupt in the
Government. They, however, left it to Congress to invest the office with more
broad powers to enforce its own action. Clearly then, the espoused theory of
undue delegation of authority is untenable. For, in the ultimate analysis, it is
the 1987 Constitution no less which granted and allowed the grant by
Congress of sweeping prosecutorial, investigatory, and disciplinary powers to
the Ombudsman. Furthermore, the issue of constitutionality was not raised
at the earliest possible opportunity; this means before the Office of the
Ombudsman, or at least before the CA.