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ADMINISTRATIVE ORDERS
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ADMINISTRATIVE ORDER NO. 57 -
IMPOSING THE PENALTY OF DISMISSAL FROM SERVICE with forfeiture of
retirement benefits and perpetual disqualification for reemployment in
the government service on BURT B. FAVORITO, Director, Administrative
Manpower and Management Service; EMILY M. TANQUINTIC, Director,
Comptrollership and Financial Management Service; FLORENDO B. ARIAS,
Asst. Bureau Director, Bureau of Equipment; OSCAR D. ABUNDO, Director,
Legal Service; and ABRAHAM S. DIVINA, JR., Director, Bureau of
Equipment, all of the Department of Public Works and Highways (DPWH) Acting upon reliable information on alleged
anomalous reimbursements for motor vehicle emergency repairs by certain
DPWH officials, Hon. Simeon A. Datumanong, DPWH Secretary, issued on
January 9, 2002 Department Order No. 15 creating a committee to
investigate the matter. The Internal Audit Service was tasked by such
committee to assist in its fact-finding mission. "Dear
Atty. Enriquez: On the charge that the respondents acted unlawfully in approving the transactions enumerated despite the absence of the required request and signature of the end-user, they answered that the act of affixing their signatures in the transactions is purely a ministerial act. Further, they alleged that there is good faith in the performance of their public function. The sole issue now is whether or not the respondents may be held liable administratively for affixing their signatures/approving the aforesaid transactions despite the absence of the Requisition for Supplies and Equipment (RSE) prepared and signed by the end-users of the three (3) service vehicles. The respondents are liable. There is a need for a certification/request by the end-user of a service vehicle before any action may be done on the request for repair. Item No. 4, 4.1 of DPWH Department Order No. 33, Series of 1988, on Revised Guidelines for the Procurement of Supplies, Materials, Spare Parts, Equipment, Including Non-Personal Services, dated April 28, 1988, provides: "4. In addition, Item D, 1.2, 1.4, 1.6 of DPWH Memorandum dated 31 July 1997, on Additional Guidelines Re: Purchase of Spare Parts and Repairs of DPWH Central Office Service Vehicles. "D. The allegation that the recommendation for approval and the approval of the RSEs is purely a ministerial act is likewise devoid of merit. A ministerial act is one the discharge of which by the officer concerned is imperative and requires neither judgment nor discretion (Lamb vs. Phipps, 22 Phil 456). The respondents, four Directors and an Assistant Bureau Director are required by the law to exercise their judgment to ascertain if, on the face of the document itself, the same is complete. The aforequoted DPWH D.O No. 33 requires the certification by the end-user that there is need for the emergency purchase of the equipment, spare parts, or repair of an equipment. Likewise, The respondents cannot be unaware of the DPWH Memorandum dated 31 July 1997 which mandates the following documentary requirements (a) for a certification of emergency purchase/repair by the end-user; (b) the RSE prepared and signed by the end-user; and (c) the certificate of acceptance signed by the end-user "prior to funding and/or processing of payment." The glaring absence of the names and signatures of the end-users of subject service vehicles on the certification, requisition for supplies and equipment and the certificate of acceptance can be seen by the naked eye without the help of a high-powered/magnifying lens. The individual affidavits of the three end-users attesting to the fact that there were no actual repairs done, solidifies the conclusion of fraud against the respondents. The application of the ruling in the case of Sistoza vs. Desierto, et. al., (G.R. No. 144784, September 3, 2002) to the instant case is misplaced. The Honorable Justice Josue N. Bellosillo said, among others, that: "Stretching
the argument further, if a public officer were to personally examine
every single detail, painstakingly trace every step from inception, and
investigate the motives of every person involved in a transaction
before affixing his signature as the final approving authority, if only
to avoid prosecution, our bureaucracy would end up with public managers
doing nothing else but superintending minute details in the acts of
their subordinates. . . ." This must be read in relation to the doctrine of command responsibility. Command responsibility refers to the accountability of all heads of departments and other superior officers to closely, supervise, coordinate, control and monitor the discharge of duties by subordinates. It includes the responsibility to control and monitor the activities of those operating within his area of jurisdiction and to take preventive or corrective measures as may be warranted under the premises. (paragraph 3, Memorandum from the President, dated November 19, 1999, Invoking The Doctrine of Command Responsibility for corruption in Government Offices) (emphasis supplied). The high ranking respondents who have the duty to "closely" supervise, control and monitor the discharge of duties by subordinates cannot shift the blame to their subordinates to escape liability. As heads of their respective offices, they assume full responsibility over all the actions of their subordinates, thus, caution must be employed prior to the approval of any transaction before them. Furthermore, supervision and control shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of a duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determines priorities in the execution of plans and programs; prescribe standards, guidelines, plans, and programs (Sec. 38(1), Chap. 7, Book IV, Administrative Code of 1987). The Honorable Justice added: "Stated
otherwise, in situations of fallible discretion, good faith is
nonetheless appreciated when the document relied upon and signed shows
no palpable nor patent, nor definite, nor certain defects or when the
public officer's trust and confidence in his subordinates upon whom the
duty primarily lies are within parameters of tolerable judgment and
permissible margins of error. . . ." In the present case, the absence of the signature and/or the certification by the end-user in the documents in question is a palpable, patent, definite and certain defect which ordinary prudence cannot ignore. The defense of good faith shall likewise fail. Good faith refers to a state of the mind which is manifested by the acts of the individual concerned. It consists of the honest intention to abstain from taking an unconscionable and unscrupulous advantage of another (Abando vs. Lozada, G.R. No. 82564, October 13, 1989). This state of mind is proven to be lacking if there is a positive act that shows the contrary intention. The positive act referred to is the signing/affixing of their signatures on the recommendation and approval of the documents in question. The failure of the respondents to exercise their functions diligently have caused undue injury to the government which resulted to the unnecessary wastage and losses in public funds and revenues. The said failure of the respondents is tantamount to neglect. Neglect as applied to public officers "means a failure on his part to do and perform some of the duties of his office" (Words and Phrases, Volume 27, Copyright 1955). The processing of transactions, beginning from the preparation of the RSEs, to the recommendation, to its approval; Certification of Emergency Purchase/Repairs; Certificate of Acceptance; Report of Waste Materials; Request for Obligation of Allotment; preparation and approval of disbursement vouchers up to the signing/countersigning of checks in payment for the purported repairs/replacement of defective spare parts were tainted with manifest partiality, evident bad faith and/or gross inexcusable negligence. Herein respondents have shown their interest for personal gain as manifested by their acts of recommending, approving, including the signing/countersigning of checks for the manifestly anomalous transactions covering the purported repairs and/or replacements of defective spare parts of the subject service vehicles. In the case of Diaz vs. CSC, these acts are referred to as a form of dishonesty. Dishonesty is a form of conduct which connotes untrustworthiness and lack of integrity, a disposition to lie, cheat, deceive, betray. This censurable conduct assumes a greater meaning when the offender is a public officer who is circumscribed with a heavy burden of responsibility to the public, and whose conduct must, at all times, be impressed with decency, decorum and propriety (C.A.-G.R. SP No. 40526, November 15, 1996). The accountability of public officers has been enshrined in Article XI, Sec. 1 of the 1987 Constitution: "Section 1. It is the mandate of the Constitution that all public officers and employees must serve with responsibility, integrity, loyalty and efficiency (De Luna vs. Ricon, 250 SCRA 1, (1995)). In this case, it has been clearly shown that the respondents did not live up to this constitutional precept. Neither did they faithfully and conscientiously fulfill their sworn duties in accordance with their "Panunumpa sa Katungkulan" (Oath of Office), to wit: "Ako,
si __________ na hinirang sa katungkulan bilang _________, ay taimtim
na nanunumpa na tutuparin ko nang buong husay at katapatan, sa abot ng
aking kakayahan, ang mga tungkulin ng aking kasalukuyang katungkulan at
ng iba pang pagkaraan nito'y gagampanan ko sa ilalim ng Republika ng
Pilipinas; na aking itataguyod at ipagtatanggol ang Saligang Batas ng
Pilipinas; na tunay na mananalig at tatalima ako rito; na susundin ko
ang mga batas at mga kautusang legal ng mga sadyang itinakdang may
kapangyarihan ng Republika ng Pilipinas; at kusa kong babalikatin ang
pananagutang ito nang walang anumang pasubali o hangaring umiwas."
(emphasis supplied) The quantum of proof necessary for a finding of guilt in administrative cases is only substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The evidences against herein respondents are more than adequate to support a conclusion that they are liable as charged. Premises considered, we find all the respondents guilty of dishonesty, grave misconduct, gross neglect of duty and conduct prejudicial to the best interest of the service. WHEREFORE, PREMISES CONSIDERED, this Commission finds the respondents Burt B. Favorito, Emily M. Tanquintic, Florendo B. Arias, Oscar D. Abundo, and Abraham S. Divina, Jr. GUILTY and so recommends to Her Excellency, President Gloria Macapagal-Arroyo that the penalty of DISMISSAL from the service with forfeiture of retirement benefits and perpetual disqualification for reemployment in the government service be imposed. SO RESOLVED." After a careful review of the records of the case, this Office affirms in toto the findings of the PAGC and holding respondents Burt B. Favorito, Emily M. Tanquintic, Florendo B. Arias, Oscar D. Abundo, and Abraham S. Divina, Jr., GUILTY of the charges against them. WHEREFORE, in view of the foregoing considerations, and as recommended by the Presidential Anti-Graft Commission (PAGC), the penalty of DISMISSAL from the service with forfeiture of retirement benefits and perpetual disqualification for reemployment in the government service are hereby IMPOSED on BURT B. FAVORITO, EMILY M. TANQUINTIC, FLORENDO B. ARIAS, OSCAR D. ABUNDO, and ABRAHAM S. DIVINA, JR. SO ORDERED. Done in the City of Manila, this 30th day of January, in the year of Our Lord, year two thousand three. |
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Since 19.07.98.