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High Court of Judicature at Allahabad
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Ranjit Singh v. V.C. - WRIT - A No. 11557 of 1989 [2006] RD-AH 17306 (6 October 2006)
Reserved on 15.9.2006.
Delivered on 6.10.2006.
Civil Misc. Writ Petition No. 11557 of 1989.
Rajnit Singh ....... Petitioner
Vice Chancellor, Chandra Shekhar Azad
University of Agriculture & Technology,
Kanpur & others ....... Respondents.
Civil Misc. Writ Petition No. 11064 of 1989.
Sudhir Prakash ....... Petitioner
Vice Chancellor, Chandra Shekhar Azad
University of Agriculture & Technology,
Kanpur & others ....... Respondents.
Hon'ble Ashok Bhushan, J.
Heard Sri Bhagwati Prasad Singh, learned counsel for both the petitioners and Sri V.B. Singh, learned Senior Advocate, appearing for respondents.
Both these writ petitions involve common questions of law and facts and are being decided by this common judgment. Facts and pleadings in both the writ petitions being almost similar, it is sufficient to refer pleadings in Writ Petition No.11557 of 1989 (Ranjit Singh Vs. Vice Chancellor, Chandra Shekhar Azad University of Agriculture & Technology, Kanpur & others).
The petitioner was appointed by order dated 3rd August, 1987 on the post of Motor Mechanic in the pay scale of 470-735 on purely temporary/ad-hoc basis. The said ad-hoc appointment of the petitioner was made on an application submitted by the petitioner dated 16th July, 1987 containing recommendation of one R.K. Srivastava, Dean & Head of Agricultural Engineering Department on the post of Motor Mechanic by the Vice Chancellor vide order dated 2nd August, 1987. The petitioner joined on 3rd August, 1989 and was working. The said ad-hoc appointment of the petitioner was terminated vide order dated 8th June, 1989 by the Vice Chancellor with immediate effect. A show cause notice was issued on 8th June, 1989 to Dr. R.K. Srivastava. In the notice it was mentioned that on the post on which the petitioners, Ranjit Singh and Sudhir Prakash, were appointed, appointments were already made in the year 1984 of Sri Dilsher Khan and Naseem Haider, who have been promoted on these posts. In the said show cause notice Dr. R.K. Srivastava was directed to show cause as to why salary paid to them be not recovered they having been appointed without there being any post. Dr. R.K. Srivastava submitted reply by letter dated 12th June, 1989 that person responsible for duplicate appointment on the post of Motor Mechanic are the Establishment Clerk, Office Superintendent of the office of the Director (Administration & Monetary). The petitioners by these writ petitions have challenged the order dated 8th June, 1989 terminating their services. By an amendment allowed on 2nd September, 2003, the petitioner has been permitted to add a relief for declaring the impugned order of termination dated 8th June, 1989 as illegal and void being retrenchment under Section 6-N of the U.P. Industrial Disputes Act, 1947. In the writ petition Dilsher Khan and Naseem Haider were impleaded as respondents No.3 and 4. Although in the writ petition it was stated that appointments of respondents No.3 and 4 were not valid and they were not appointed on the post of Motor Mechanic, no prayer was made for quashing their appointments. The respondents No.3 and 4 despite service have not appeared nor file any affidavit. One of the respondents, Naseem Haider already retired four years back. No interim order was passed in the writ petitions. The petitioners after their termination did not continue in the employment. One of the petitioners, Ranjit Singh also died on 8th April, 2003.
Sri Bhagwati Prasad Singh, learned counsel for the petitioners, challenging the order terminating services of the petitioners, submitted that termination of the petitioners' services was without any valid cause. He contended that termination of services has been made on the pretext that post of Motor Mechanic on which petitioners were given temporary/ad-hoc appointments are filled up, which not being a correct fact, the action of the respondents is arbitrary. He further contents that termination of petitioners' services is also in violation of the provisions of Section 6-N of U.P. Industrial Disputes Act, 1947, hence petitioners are entitled for reinstatement with all benefits. Reliance has been placed by the petitioners on the judgments reported in 1992 All.L.J. 1165; Krishna Kumar Dubey Vs. U.P. Food & Essential Commodities Corporation & another, 1992 All.L.J. 1166; Brijesh Kumar Srivastava vs. Director, Rajya Krishi Uptadhan Mandi Parishad, U.P., Lucknow and others, (1991)2 UPLBEC 1326; Belal Ibne Mohd. Siddiqui & others Vs. Chief Engineer, Rural Engineering Services, U.P. Lucknow and others, (2003)10 S.C.C. 283; Talwinder Singh Vs. PO Labour Court & another & (2003)8 S.C.C. 334; U.P. Drugs & Pharmaceuticals Co. Ltd. Vs. Ramanuj Yadav & others.
Sri V.B. Singh, learned counsel for the respondents, refuting the submissions of the petitioners, contended that petitioners were given ad-hoc and temporary appointments and they had no right to post. No error has been committed by the Vice Chancellor in terminating their services. He further submits that the posts on which the petitioners were given ad-hoc/temporary appointments were already occupied by respondents No.3 and 4 and there being no vacancy, which fact was detected by the respondents afterwards, the temporary appointment of the petitioners was rightly terminated. He submits that petitioners have no right to the post they being only temporary employees appointed without following the procedure prescribed in the statutory provisions. He placed reliance on the judgments of the Apex Court in (2006)4 S.C.C. 1; Secretary, State of Karnataka & others Vs. Umadevi and others, (2005)8 S.C.C. 264; U.P. State Spinning Co. Ltd. Vs. R.S. Pandey & another, (1998)6 S.C.C. 549; Scooters India & others Vs. Vijai E.V. Eldred and 2006(110) F.L.R. 211; National Fertilizers Ltd. & others Vs. Somvir Singh. The Division Bench judgments of Delhi High Court reported in 2006-III Labour Law Journal 192; Delhi Jal Board Vs. Workmen of the erstwhile Delhi Water Supply & Sewage Disposal Undertaking and 2006-III Labour Law Journal 115; Sunil Kumar Vs. Delhi State Mineral Development Corporation & another, were also relied. 2005(8)
I have considered the submissions of counsel for both the parties and perused the record.
The first submission raised by counsel for the petitioners is that the services of the petitioners were arbitrary terminated since the reason which is sought to be given in the counter affidavit that the posts on which the petitioners were appointed were already filled in was incorrect and false. Learned counsel for the petitioner elaborating his submission contended that in the counter affidavit the appointment letters of respondents No.3 and 4, who are said to occupying the post on which the petitioners were appointed, have been filed as Annexure CA-1 to the counter affidavit. From Annexure CA-1to the counter affidavit, it appears that they were appointed in the pay scale of Rs.354-550 which is not the pay scale of Motor Mechanic. He further contents that the appointments of the petitioners were made as Mechanic and Collie and not as Motor Mechanic. From perusal of the order dated 4.4.1984 ( Annexure CA-1 to the counter affidavit), it is clear that appointments of respondents No.3 and 4 were made against the post of Mechanic in the pay scale of Rs.470-735 in the Motor Transport Department although the order mentioned that their salary be drawn in the pay scale of Rs.354-550. The posts against which their appointments were shown were posts of Mechanic for both respondents No.3 and 4. The petitioner in the rejoinder affidavit has brought on the record the pay bill of salary of respondents No.3 and 4 of March, 1986 and June, 1989. From the pay bill of March, 1986 it is clear that both respondents No.3 and 4 were drawing the salary in the pay scale of Rs.470-735 and their payments were made by the order of Director of Works of the University. The appointments of the petitioners were made by the Vice Chancellor of the University on ad-hoc basis and in the initial order of appointment it was mentioned that they are appointed against the post of Motor Mechanic. The consistent case of the respondents is that on the posts on which the petitioners were appointed, the appointments were already made in the year 1984, which is clear from the appointment order of respondents No.3 and 4. The submission that salary being paid under the orders of Director, hence the appointment of respondents No.3 and 4 cannot be treated in the Motor Transport Department, cannot be accepted. The appointment order filed as Annexure CA-1 to the counter affidavit clearly mentions the post of Mechanic in Motor Transport Department and the pay scale was also mentioned as 470-735 although respondents No.3 and 4 were ordered to draw salary in the pay scale of Rs.354-550 only. However, from the pay bill brought by the petitioner himself along with the rejoinder affidavit, it appears that in the month of March, 1986, i.e., before the appointment of the petitioners, the respondents No.3 and 4 were drawing the salary in the pay scale of Rs.470-735. In the counter affidavit it has also been mentioned that respondents No.3 and 4 were promoted, although no details about the promotion have been brought on the record, but fact remains that they were drawing salary of the pay scale of Rs.470-735 even before the appointment of the petitioners. One more fact, which is relevant to be noted, is that a show cause notice was issued to Professor R.K. Srivastava who recommended the appointment of the petitioners. The show cause notice clearly mentioned that on the posts on which the petitioners were appointed, the respondents No.3 and 4 were already appointed and posts were occupied, hence the appointment of the petitioners were wrongly made. Thus the reason, which is forthcoming from the counter affidavit for termination of temporary appointment of the petitioners is filling up of these two posts by respondents No.3 and 4. Holding of these posts by respondents No.3 and 4 finds support from the show cause notice given to Professor R.K. Srivastava. The reply to the show cause notice given by Professor R.K. Srivastava is also relevant. In his reply Professor R.K. Srivastava has not denied that the appointments of the petitioners are on different two posts, rather he has referred the appointment of the petitioners as duplicate appointments and he gave his defence that he was not aware of the fact that they were posted not in the charge of Transport Section and their salaries were not being drawn from Officer-in-Charge of the Transport. He also stated that these are the irregularities on account of which these duplicate appointments could be possible. In the reply which is filed as Annexure RA-1 to the rejoinder affidavit following was mentioned:-
"... I was given the charge of the Transport Section soon after I joined this University in April, 1986 and no old files containing such papers were handed over to my charge. Then the biggest anomaly was that if two persons had been appointed as Mechanics (on promotion) in 1984 why they were not posted under the charge of Officer-in-Charge Transport Section and why their salary was not drawn from that scheme and under the signature of the Officer-in-Charge Transport, who was the Drawing & Disbursing Officer for that scheme ? If the above irregularity had not been allowed to continue by the appointing authority and the Establishment Branch, the duplicate appointment would not have been possible. Thus, it is very clear that the persons responsible for these two duplicate appointments on the post of Motor Mechanics, Transport Section are the Establishment Clerk, Office Supdt. and the Director (Admn. & Mon.) of that time. Therefore, if the salary paid to Sh. Sudhir Prakash and Sh. Ranjit Singh on account of irregular appointment to the posts of Motor Mechanics in Transport Section is to be recovered, it should be done from the persons holding the above mentioned posts in the Office of the Director (Admn. & Mon.) at the time of these irregular appointments, but not from the undersigned in view of the facts mentioned above."
From the above reply given by Dr. R.K. Srivastava who recommended the ad-hoc appointment of the petitioner, it is thus clear that the University treated these appointments of the petitioners as irregular appointment being made in ignorance of the fact that these two posts were already filled in. The petitioners being only appointed on temporary vacancy, they have no right to the posts and the reason given in the counter affidavit for their termination cannot be said to be pulpably unsound or arbitrary. On a pointed query asked from the petitioners' counsel that after termination in June, 1989 whether any fresh appointment has been made on the post of Motor Mechanic in the Transport Department of the University, the answer of both the counsel was in negative. Thus this fact also justify the stand of the University that the post on which the petitioners were appointed were the posts which were already occupied by two incumbents, i.e., respondents No.3 and 4 and the University could not have made fresh appointment. Thus the submission of the petitioners that the termination of the petitioners was arbitrary since it was made on false and incorrect reason cannot be accepted. The petitioners being temporary employees, who were appointed merely on the application submitted by them and recommended by Professor R.K. Srivastava, they did not acquire any right to hold the post. The appointments of the petitioners having been made without giving any opportunity of competition to any other persons, no right has been acquired by the petitioners to the post.
The next submission of counsel for the petitioners is that the termination is illegal and violative of Section 6-N of the U.P. Industrial Disputes Act, 1947. The petitioners' counsel submits that petitioners having worked for more than 240 days in a calendar year their termination was violative of Section 6-N. It is relevant to note that the writ petition was not founded by the petitioners when it was filed on the ground of violation of Section 6-N of U.P. Industrial Disputes Act, 1947. The ground taken in the writ petition was that the termination was made without giving any opportunity and the order has been passed in violation of the principles of natural justice, further the respondents No.3 and 4 were appointed without they fulfilling the qualification and they were wrongly given promotion. It was only in the year 2003 when the petitioners moved application for amendment in the writ petition adding grounds No.6 and 7 and relief No. IV and V to the writ petition. It is well settled that when rights and obligations are sought to be enforced under U.P. Industrial Disputes Act, 1947, the same has to be invoked in accordance with the provisions of the said Act. For rights and remedy under the U.P. Industrial Disputes Act, 1947 the appropriate forum is raising of an industrial dispute. The High Court normally does not entertain writ petition when violation of provisions of U.P. Industrial Disputes Act, 1947 is raised and relegates the petitioner to seek remedy under the U.P. Industrial Disputes Act, 1947. When the writ petition was filed, the writ petition was not founded on the said ground. Had the petitioner founded the writ petition on the ground of violation of the provisions of U.P. Industrial Disputes Act, 1947, the Court might have relegated them to seek the remedy under the U.P. Industrial Disputes Act, 1947. On the basis of amendment made in the year 2003, I am not inclined to entertain the plea of the petitioners raised in the writ petition for challenging the order of termination on breach of Section 6-N. The judgment relied by counsel for the petitioner in Krishna Kumar Dubey's case (supra) do not lay down the proposition that High Court is obliged to consider the breach of Section 6-N in a writ proceeding. The Apex Court granted relief in the said case without expressing any opinion as to whether the High Court rightly or wrongly relegated the employee to invoke the provisions of U.P. Industrial Disputes Act, 1947, which is clear from paragraph 3 of the said judgment. Paragraph 3 of the said judgment is extracted below:-
"The petitioner has been working under the respondent Corporation as a temporary employee for over three years. It is the case of the appellant that from time to time his services were discontinued for a day or two with a view to braking the continuity of his service. It, however, appears that he has continuously worked for more than 240 days. It is not disputed that the respondents have terminated his services without complying with the provision of Section 25-F of the Industrial Disputes Act, 1947. The High Court took the view that the appellant had an efficacious alternative remedy before the Industrial Tribunal and, accordingly, dismissed the writ petition. It is not necessary for us to consider whether the High Court was justified in dismissing the writ petition on that ground or not, but the fact remains that the appellant had worked continuously for more than 240 days and so, his services could not be terminated without complying with the provision of Section 25-F of the Industrial Dispute Act."
The Apex Court in a recent judgment reported in (2004)4 S.C.C. 268; U.P. State Bridge Corporation Ltd. & others Vs. U.P. Rajya Setu Nigam S. Karamchari Sangh has observed that when rights and obligations sought to be enforced under the U.P. Industrial Disputes Act, 1947, then the only remedy available to the claimant is to get adjudication under the U.P. Industrial Disputes Act, 1947. Paragraphs 11 and 12 of the said judgment are quoted below:-
"11. We are of the firm opinion that the High Court erred in entertaining the writ petition of the respondent Union at all. The dispute was an industrial dispute both within the meaning of the Industrial Disputes Act, 1947 as well as UP.IDA, 1947. The rights and obligations sought to be enforced by the respondent Union in the writ petition are those created by Industrial Disputes Act. In Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke it was held that when the dipuste relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the claimant is to get adjudication under the Act. This was because the Industrial Disputes Act was made to provide
"a speedy, inexpensive and effective forum for resolution of disputes arising between workmen and their employers. The idea has been to ensure that the workmen do not get caught in the labyrinth of civil courts with their layers upon layers of appeals and revisions and the elaborate procedural laws, which the workmen can ill-afford. The procedure followed by civil courts, it was thought, would not facilitate a prompt and effective disposal of these disputes. As against this, the courts and tribunals created by the Industrial Disputes Act are not shackled by these procedural laws nor is their award subject to any appeals or revisions. Because of their informality, the workmen and their representatives can themselves prosecute or defend their cases. These forums are empowered to grant such relief as they think just and appropriate. They can even substitute the punishment in many cases. They can make and remark the contracts, settlements, wage structures and what not. Their awards are no doubt amenable to jurisdiction of the High Court under Article 226 as also to the jurisdiction of this Court under Article 32, but they are extraordinary remedies subject to several self-imposed constraints. It is, therefore, always in the interest of the workmen that disputes concerning them are adjudicated in the forums created by the Act and not in a civil court. That is the entire policy underlying the vast array of enactments concerning workmen. This legislative policy and intendment should necessarily weigh with the courts in interpreting these enactments and the disputes arising under them".
12. Although these observations were made in the context of the jurisdiction of the civil court to entertain the proceedings relating to an industrial dispute and may not be read as a limitation on the Court's powers under Article 226, nevertheless it would need a very strong case indeed for the High Court to deviate from the principle that where a specific remedy is given by the statute, the person who insists upon such remedy can avail of the process as provided in that statute and in no other manner."
Moreso this Court has examined the termination of ad-hoc/temporary appointment of the petitioner on merits and has found that there was valid reason for such termination. Further while considering the concept of public employment the Constitution Bench of the Apex Court in Secretary, State of Karnataka's case (supra) has sounded caution for considering the cases of temporary/ad hoc appointment made de hors the rule. Following was observed in paragraph 4:-
"4. ... It is time, that the courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established..."
Further it was observed in paragraph 13:-
"13. ... It cannot also be forgotten that it is not the role of the courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution..."
As observed above, the petitioners' appointments being temporary appointment made without following any procedure only on simple application, they cannot be held to have acquired any right to the post and the termination of their services by the University cannot be said to be arbitrary warranting interference by this Court under Article 226 of the Constitution of India.
The judgment of this Court in Brijesh Kumar Srivastava's case (supra) relied by counsel for the petitioner was a case in which writ petition was filed for granting continuity of service and to pay salary. The Court exercised its discretion in deciding the writ petition on merits after hearing both the parties. The case was on its own facts and is quite different from the facts and circumstances of the present case. The case of Belal Ibne Mohd. Siddiqui (supra) was also a case where services of work charge employees were terminated. The writ petition was not allowed on the ground of violation of any provision of U.P. Industrial Disputes Act, 1947. The judgments of the Apex Court in Talwinder Singh's case (supra) and in U.P. Drugs & Pharmaceuticals Co. Ltd's case (supra) were the cases which arose from the award of the Labour Court. The provisions of the U.P. Industrial Disputes Act, 1947 were invoked in those cases by seeking the remedy before the forum created under the U.P. Industrial Disputes Act, 1947 and they can have no application in the facts of the present case.
In view of the foregoing discussions, the petitioners have not made out any case for grant of relief as prayed for in the writ petition.
Both the writ petitions are dismissed.
Dated 6.10.2006.
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tion, that, in a sudden fit of indisposition, her father the rector had suddenly taken her to a distant watering place. Lord Weybridge proceeded without delay to Mrs. Harbottle, and there, having told her his circumstances and the necessity he was under of departing forthwith for London, he commissioned her, in the most solemn manner, to communicate his resolution to Emma. Mrs. Harbottle literally forgot her own misfortunes in the anticipation of her dear Emma's bliss, and she assured her friend, in whose temper and affability his elevation made no change, that the announcement of the news which she had in store for Emma, would be the means of saving her from an untimely grave. The following moral reflections of the author, on a survey of the conduct of Mrs. Harbottle, under her very trying circumstances, are well worthy of attention :
Nothing can more strongly point out to women situated as Fanny was, the absolute necessity of maintaining the straight course, deviating neither to the left nor to the right, than her own particular case. The moment her delicacy had been alarmed—the instant her mind was awakened to the state of her feelings, she acted morally, virtuously, and heroically—but this was in the second stage of the proceedings; and disguise it or palliate it as we may, Harvey must have become an object of much greater interest to her than he ought to have been, at the period when she felt it necessary to her character and comfort that they should part. Once admitted, the passion so closely resembling friendship at his birth, goes on gradually gaining an influence, till at last—as was the case with poor Harvey-its victims awaken too late to a certainty of the delusion.—vol. i. p. 297.
Following the new lord to London, the author presents us with a great variety of scenes through which his lordship passed. They are marked by that extraordinary aspect of truth which Mr. Hook is so weil able to pourtray when the business and proceedings of ordinary life, in any of its stages, are the subject of his powers. We must pass over some very humorous adventures of our hero, and yield to the superior claims of the heroine, now placed in a very critical situation. Emma heard with delight the tidings communicated to her by Mrs. Harbottle ; she came up to Binford from the watering place, and remained in the most interesting state of expectation for the next visit of Lord Weybridge. But her evil genius had not done with Emma as yet. One morning, at an unusually early hour, she was roused from her innocent slumber by a loud knocking at the door. She rose, and found that it was Mrs. Harbottle. This lady appeared like a wild demon, threw herself on Emma's bed, and demanded, with solemn emphasis, that she would call her father. The Reverend Mr. Lovell, an early riser, soon appeared ; Mrs. Harbottle wished to speak to him in secret, and, Emma having left the room, a horrible secret was communicated to the clergyman, of which Miss Lovell was kept in ignorance. All that was told her on the occasion was, that Mrs. Harbottle had abandoned for ever her husband's
worth once the ked-for chi
house, and that within one hour she (Emma) must accompany the distracted woman to the residence of her aunt, in the West of England. Emma, who waited impatiently for the visit of her George, was thunderstruck at the proposal —a compliance with which might have the most serious consequences on her destiny; she hesitated, but when she heard the voice of command from her father, she knew no other influence, and gently entered the vehicle with her wretched companion. Upon the night previous to this eventful morning, Mr. Harbottle, being out hunting, by the most unlooked for chance, got into company with Charles Harvey, once the friend, but now the foe, who was thought by him worthy of the fiercest vengeance. It must be sufficient, at this stage of the denouement, to state, that, the same night, Harvey, with his horse, was found dead in a sand-pit. The whole of these events were diligently and promptly related to her son by Lady Frances, who dwelt with peculiar zeal upon the unaccountable conduct of Emma, in accompanying Mrs. Harbottle in an elopement from her lawful husband. Shortly afterwards Lady Frances proceeded to London, for the purpose of clenching, in person, the arguments which she previously only put down in a letter. All the circumstances which subsequently occurred tended to increase the suspicions entertained by Lord Weybridge of Emma's character, and the arts which his mother, assisted by a powerful reinforcement of relations, put in practice at a country seat in Worcestershire, whither he was induced to retire, went a great way in preparing the young lord for surrendering Emma for ever, and substituting for her image in his breast that of another, named Lady Katherine. Indeed, so far was his indignation against poor Emma carried, that he allowed himself to be pledged to the new candidate for the honour of being his wife. Whilst still in Worcestershire, and whilst the intrigues of his mother were in active progress in that quarter, Lord Weybridge received a hasty summons to Binford, to receive an important communication from the wretched Harbottle, then in his last awful moments. The young lord arrived in sufficient time to find his old acquaintance alive: but what must have been his astonishment to hear from the dying man, the terrible confession, that he had instigated, by money, the murder of Charles Harvey. This was the grand secret, which was disclosed first to Mr. Lovell, and which justified him in giving the assistance, already spoken of, to Mrs. Harbottle, in her escape.
Some attempts at a reconciliation were now made by Lord Weybridge with Emma; but he found her exceedingly disinclined to encourage his overtures, and the real motive of her conduct was subsequently explained by herself. She told him, in a beautifully written letter, all her reasons for despairing that they could ever come together; she saw that Lord Weybridge's mother was hostile to her, and that no consideration would induce her to become a cause of contention between them. "I tell you"—continued the spirited girl," because I have been taught to speak plainly and truly, and because truth is, in me, habit, that when I first became acquainted with you, I admired those qualities which you appeared to possess, and sympathized in those sentiments which you were in the habit of expressing ; your mind, your manners, your accomplishments, all combined to increase the prepossession I felt; and I saw in you candour, and honour, and rectitude. Your conduct and conversation evidently inferred that the feeling I entertained was reciprocal, and I would have sacrificed every hope in the world to have ensured your welfare and comfort; you suddenly became ennobled, did I seek you then? did I value your rank ? did I gaze with delight on your coronet ? No. The very first act of your life in your new station, was to seek me out-and in a manner to me the most flattering—why should I not say, the most delightful; you, for the first time, solemnly and seriously declared your affection, and vowed eternal constancy to me; why-why did you do this? Believe me, I do not reproach you for attending to the advice of Lady Frances, nor do I blame you for connecting yourself with the house of Hargrave : it is right, it is prudent, it is wise, it is dutiful to do so. But why break a heart, which you knew was your own, by singling out a being, who never would have aspired to think of you as a husband in your new position in life, merely to delude, and then deride her. Oh! how-how can this be reconciled with your previous conduct? How, when we met after that, how, only three days since, could you again allude to the declaration you had made, while your beautiful bride was waiting your return from the house of mourning, to be led to the altar."
Such was the language in which this virtuous lady made a sacrifice of strong inclination to virtue. When young Weybridge, in astonishment at her firmness, proceeded to the rectory to consult with her father, he found Mr. Lovell not only echoing his daughter's sentiments, but adding to the force of her expressions in such a manner, as to make the suitor quite ashamed that he had ever allowed himself to doubt, for a moment, the pure morality of such innocent beings.
On his return to Worcestershire, George had to endure the annoyance of a resumption, on the part of his mother and her parti. zans, of the old warfare, the object of which was to place the lady Katherine on the throne of his affections. But his discovery of the complete freedom from guilt of Emma, his admiration for her and her father, under circumstances the most trying, more than ever placed it out of the power of Lady Frances to succeed in her scheme. In these straits, George took it into his head that his best course on the occasion would be to fly from the danger which he found himself unable to keep off. For this purpose he made an application at the Admiralty for a ship, and his request being
politely complied with, George announced to his almost petrified mother, that he was posted to his Majesty's frigate Destructive, of forty-four guns, and that he should join the ship in a few days.
A great deal of space is devoted to the history of the further proceedings of Lady Frances, of the contrivances of various sorts which she put in practice for the purpose of securing that one measure upon which she appeared to have set her life, the marriage of her son with Lady Katherine. It is impossible to say how successfully she would have conducted her operations, had not an event tnrned up, so extraordinary and unexpected in its nature, as to effect a complete revolution in the feelings and fortunes of the family. A communication was made to George by Mr. Snell, a lawyer, who came down on purpose to impart the momentous intelligence, which was neither more nor less than to declare the cashiering of George from the peerage :
Sit down, my dear mother, said George, and prepare yourself to hear something, which, I am quite sure, even with your felicity of imagination, you are not prepared to guess at.
Answer me, George, said Lady Frances, is it connected with Binfordwith your marriage.
It is connected, said her son, and intimately connected, not only with Binford, but with Severnstoke, and with my marriage most certainly-it is, moreover, connected with my personal character, and with the place and station which I hold in society.
What can you mean?
I mean, my dear mother, said George, that a blow is about to fall upon us-or rather has fallen, in which we ought to rejoice as Christians, but which at once dissipates all the splendour with which we are surrounded-sends the Duchess from our doors--and bears away the blooming Lady Katharine-melts all our plate-dissolves our diamonds-crops all our tress--and strips us of a home!
Why, neither more nor less than this: we are here only on sufferance, and must go hence at the call of mine excellent lawyer, Mr. Snell.
How should he or any body else drive Lord Weybridge from his titles to estates.
Prepare yourself for it, said George, I tell you 'tis a blow—I am not Lord Weybridge.-vol i. pp. 240—242.
Here Mr. Snell stood forth, and informed the lady that the claims of the lastlord's eldest son were established, for that that individual was saved in a miraculous manner from the shipwreck. The poor Lady Frances was nearly paralysed by the shock, when informed that her son had no longer a claim to the estates ; that she must leave the mansion in which she was then residing, as it belonged to another person; and that all the rents and payments received on the part of George Sheringham, falsely styled Lord Weybridge, should be refunded by him. George now took the opportunity of disclosing, by letter, the whole of these strange transactions to Mr. Lovell, the father of Emma : he told him how completely all his grandeur, his dignities, and with them his parasites, had abandoned him. He informed Lovell of his determination to go to sea—a circumstance which, in all probability, would separate him for ever from Binford; he confessed all his faults and unworthy suspicions of Emma; and assured her father that he was conscious of suffering the great punishment which, as a measure of retributive justice, he had so richly deserved: he utterly despaired of ever overcoming the repugnance which Miss Lovell must feel towards him. George then proceeded to take possession of his ship. The Admiralty having heard the strange history just related, made an effort to recall the commission, seeing to what an humble situation the officer was reduced; but the bargain was made, and George showed his resolution to maintain it inviolably, and the Admiralty were forced to leave the commission as it was. They, however, determined on annoying him ; his destination was accordingly changed, and he was ordered to convey a live cargo to a distant part of the world, consisting of the following articles :-One governor, his lady, two daughters, one son (an aid de camp), another son (his secretary), three horses, two cows, four housemaids, a butler, and two footmen ; one hundred and thirty-eight packages of all sorts, three pointers, and one Newfoundland dog!
Before his departure for India, which was the destination of the cargo above enumerated, George received a letter from Lovell, which justified him in concluding that both father and daughter began to relent, and that a day would come when something which he scarcely dared to name, might by possibility take place. He proceeded on the voyage, and suffered, when he landed at Calcutta, from a severe fever, brought on by his low nervous state, and the climate. The physicians agreed that nothing was left for George but to return to England; he complied with these directions; and, on reaching his native land, found that all his afflictions were now to end, and even the memory of them to merge in the abundance of that happiness which he so long desired. He was cheered, in the first place, with the return of the friendship of Mr. Lovell, and the removal of all obstacles to his union with Emma; he heard, with feelings of delight, that Mrs. Harbottle had recently died, leaving to Emma the extensive property which her husband had, in a moment of deep compunction, bequeathed to her; whilst, on the other hand, the agreeable news was conveyed to him, that the sum in which he was indebted to the existing Lord Weybridge, had been wholly paid off by the generosity of the wretched Harbottle, in token of the friendship which she entertained for George. In short, George and Emma buried all their sufferings in oblivion; and, as if Providence intended to mark their virtuous union by a proof of its favour, the


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July 2016 - Philippine Supreme Court Decisions/Resolutions
Philippine Supreme Court Jurisprudence
G.R. No. 199151-56, July 25, 2016 - PEOPLE OF THE PHILIPPINES, Petitioner, v. THE SANDIGANBAYAN, FIFTH DIVISION, LT. GEN. LEOPOLDO S. ACOT, B/GEN. ILDEFONSO N. DULINAYAN, LT. COL. SANTIAGO B. RAMIREZ, LT. COL. CESAR M. CARINO, MAJ. PROCESO T. SABADO, MAJ. PACQUITO L. CUENCA, 1LT. MARCELINO M. MORALES, M/SGT. ATULFO D. TAMPOLINO, REMEDIOS "REMY" DIAZ, JOSE GADIN, JR., GLENN ORQUIOLA, HERMINIGILDA LLAVE, GLORIA BAYONA AND RAMON BAYONA JR., Respondents.
G.R. No. 199151-56, July 25, 2016
PEOPLE OF THE PHILIPPINES, Petitioner, v. THE SANDIGANBAYAN, FIFTH DIVISION, LT. GEN. LEOPOLDO S. ACOT, B/GEN. ILDEFONSO N. DULINAYAN, LT. COL. SANTIAGO B. RAMIREZ, LT. COL. CESAR M. CARINO, MAJ. PROCESO T. SABADO, MAJ. PACQUITO L. CUENCA, 1LT. MARCELINO M. MORALES, M/SGT. ATULFO D. TAMPOLINO, REMEDIOS "REMY" DIAZ, JOSE GADIN, JR., GLENN ORQUIOLA, HERMINIGILDA LLAVE, GLORIA BAYONA AND RAMON BAYONA JR., Respondents.
Before us is a special civil action for certiorari1 under Rule 65 of the Rules of Court which seeks to annul and set aside the Resolutions dated September 16, 2011 and October 15, 2010 by public respondent Sandiganbayan for allegedly having been issued without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, and to reinstate the six (6) Informations for Violation of Section 3 (e) of Republic Act (R.A.) No. 3019 otherwise known as the "Anti-Graft and Corrupt Practices Act" filed against all private respondents.
The assailed Resolution dated October 15, 2010 granted the motions to quash or dismiss filed by private respondents Lt. Gen. Leopoldo S. Acot (Acot), B/Gen. Ildefenso N. Dulinayan (Dulinayan), Lt. Col. Santiago B. Ramirez (Ramirez), Lt. Col. Cesar M. Cariño (Cariño), Maj. Proceso T. Sabado (Sabado), Maj. Pacquito L. Cuenca (Cuenca), 1Lt. Marcelino M. Morales (Morales), M/Sgt. Atulfo D. Tampolino (Tampolino) and Remedios Diaz (Diaz). The assailed Resolution dated September 16, 2011 denied petitioner's Motion for Reconsideration of the October 15, 2010 Resolution and granted the motions to quash filed by respondents Jose Gadin, Jr. (Gadin), Glenn Orquiola (Orquiola), Herminigilda Llave (Llave), Gloria Bayona and Ramon Bayona, Jr.2chanrobleslaw
The motions to quash or dismiss filed by private respondents were premised on the ground of inordinate delay in the conduct of the preliminary investigation amounting to a violation of their constitutional rights to due process of law and to a speedy disposition of the cases.
The facts of the case, as culled from the records, are as follows:
chanRoblesvirtualLawlibrarySometime on December 28, 1994, a letter-complaint was filed by one Carmelita U. Ramirez before the Office of the Ombudsman for the Military and other Law Enforcement Officers (MOLEO) alleging, among others, that private respondents conspired and defrauded the government in the amount of Eighty-Nine Million Pesos (P89M) through ghost deliveries.3 The complaint prompted the MOLEO to immediately conduct a fact-finding investigation. It discovered that a similar fact-finding body within the Philippine Air Force, more particularly the Office of the Inspector General (OTIG), found that based on the audit of the AFP's Program and Evaluation and Management Analysis Division (PEMRAD), Office of the Deputy Chief of Staff for Comptrollership OJ6, there were ghost deliveries of assorted supplies and materials at the 5th Fighter Wing Basa Air Base amounting to P24,430,029.00 and unaccounted supplies and materials worth P42,592,257.61.4chanrobleslaw
On February 22, 1995, the records and report of the OTIG were subsequently forwarded to the MOLEO, after which, MOLEO commenced conducting the preliminary investigation against private respondents.5 The last counter-affidavit was filed on March 11, 1996.6chanrobleslaw
On April 12, 1996, MOLEO Investigator Rudiger G. Falcis prepared a Resolution recommending that all private respondents be indicted for six counts of Violation of Section 3(e) of R.A. 3019 and six counts of the crime of Malversation of Public Funds through Falsification of Public Documents (Article 217, in relation to Articles 171 and 172, of the Revised Penal Code).7 Then Director Orlando C. Casimiro of the Criminal and Administrative Investigation Bureau concurred in the findings, and the same was recommended for approval by B/Gen Manuel B. Casaclang (Ret), Deputy Ombudsman for the Military.8chanrobleslaw
On July 10, 1996, Special Prosecution Officer III Reynaldo Mendoza issued a Memorandum recommending the filing of violation of Section 3 (e) of R.A. 3019 and the dismissal of the charges for Malversation of Public Funds.9 This Memorandum was approved by Deputy Ombudsman Orlando Casimiro.10chanrobleslaw
On January 12, 1998, Special Prosecutor Leonardo Tamayo issued a Memorandum recommending the dropping of charges against private respondents Acot and Dulinayan on the ground that the supplies involved were among those that had undergone the regular and proper procedure. This recommendation was approved by then Ombudsman Aniano Desierto on March 2, 1998.11 On even date, Ombudsman Aniano Desierto also approved the Resolution dated April 12, 1996 with the following note - "with the modifications as to the respondents as recommended by SP Tamayo and as to the scope as recommended by the OSP."12chanrobleslaw
On January 12, 1999, the case was subjected to another re-evaluation by the MOLEO.13chanrobleslaw
In 2003, upon the assumption of then Ombudsman Simeon V. Marcel o, the case underwent another thorough review upon the recommendation of the MOLEO.14chanrobleslaw
On April 27, 2005, MOLEO, received the records of the case for the preparation of the Informations to be filed with the court.15chanrobleslaw
On July 7, 2005, MOLEO, through its investigation team, issued a Memorandum recommending for another thorough review of the case arguing against the dismissal of the charges against private respondents Acot and Dulinayan.16 The Memorandum was recommended for approval by then Deputy Ombudsman Orlando Casimiro.17chanrobleslaw
On September 19, 2005, then Ombudsman Simeon V. Marcelo referred the case to the Office of the Legal Affairs (OLA) for a thorough review of the case.18chanrobleslaw
On June 25, 2007, a Review Memorandum was prepared by Assistant Special Prosecutor Terence S. Fernando and was recommended for approval by Assistant Ombudsman Dina Joy Tenala containing the opinion of the OLA that "the April 12, 1996 Resolution did not become final and executory and that the doctrine relied upon for the dismissal of the case against Acot and Dulinayan is not applicable and that probable cause exists based on evidence."19chanrobleslaw
On October 23, 2008, then Over-all Deputy Ombudsman Orlando C. Casimiro approved the said Review Memorandum.20chanrobleslaw
On October 6, 2009, six Informations were filed before the Sandiganbayan docketed as SB-09-CRM-0184 to 189 charging private respondents for violation of Section 3(e) of R.A. 3019.
The arraignment was set on November 20, 2009. On November 9, 2009, respondent Dulinayan filed a Motion to Quash/Dismiss and Motion to Defer Arraignment. On December 1, 2009, respondent Acot filed an Omnibus Motion to Quash and Defer Arraignment. On February 8, 2010, a Motion to Quash/Dismiss and for Deferment of Arraignment was filed by respondents Ramirez, Cariño, Sabado, Cuenca and Morales wherein they adopted the motions of respondents Dulinayan and Acot.21 On February 19, 2010, a Motion to Quash was filed by respondent Tampolino.22chanrobleslaw
In their separate motions to quash, respondents Dulinayan, Acot, Ramirez, Cariño, Sabado, Cuenca and Morales argued, among others, that their right to speedy disposition of cases was violated when it took the Office of the Ombudsman almost fifteen (15) years to file their case before the court.
In the Comment or Opposition filed by the petitioner, it stated that the respondents failed to invoke their right which must also be weighed with the right of the State to prosecute citing the case of Corpuz v. Sandiganbayan.23 It further stated that the State should not be bound by the negligent act of its officers, and the laxity in the filing of the case is prejudicial to the State because it stands to lose Eighty-Nine Million Pesos (P89M).
In his Reply, respondent Dulinayan countered that the cited cases of Corpuz and Valencia24 have different factual antecedents. In the said cases, the delay was only one year and there was contributory negligence on the part of the accused. He reiterated that it took more than seven (7) years before the MOLEO requested a review of the Resolution of the Ombudsman and another four (4) years before the Informations were filed. He did not have the opportunity to invoke his right before the Ombudsman because he was not informed of the existence of the cases considering that he was able to secure clearance therefrom. His constitutional rights as embodied in the Bill of Rights take precedence over the rights of the State.
In his Reply, respondent Acot asserted that there was a power play within the Office of the Ombudsman considering that despite prior dismissal of the case against him, it was still subjected to review seven years later and a contrary recommendation was issued after four (4) more years. He claimed that the internal politics in the instant case was akin to the case of People v. Tatad.25cralawredchanrobleslaw
In its Supplemental Comment/Opposition, the petitioner averred that considering the huge amount involved in the case, it had to be reviewed meticulously and scrupulously such that the resolution underwent a hierarchy of review which called for a painstaking and fastidious study of the records of the case.
On October 15, 2010, public respondent Sandiganbayan issued a Resolution granting the motions to quash on the ground that the aforesaid private respondents' right to speedy disposition of their cases was unduly violated, thus:ChanRoblesVirtualawlibrary
A careful reading of the April 12, 1996 Resolution of the Ombudsman and the Memoranda issued reveals that this initial Resolution was the one which resulted from [the] painstaking study of the documents gathered vis-a-vis the counter-affidavits of the respondents. Noteworthy is the fact that the prosecution did not offer any other explanation as to the delay of the review of the Resolution except that the case had to be reviewed meticulously and scrupulously, that the Resolution underwent a hierarchy of review and calls for painstaking and fastidious study of the records of the case. Upon review by OLA, no new documents were studied but there was merely a revisit of the cited case. Such would not require a "painstaking study or grueling review" as claimed by the Prosecution. Thus, the length of time it took to conduct its review is undoubtedly more than what was called for.On October 15, 2010, respondent Gadin filed a Motion to Quash Information and Defer Arraignment.27 On October 28, 2010, respondents Orquiola and Llave filed a Motion to Dismiss on the same grounds raised by the other respondents.28 On November 7, 2010, respondents Gloria Bayona and Ramon Bayona, Jr. jointly filed a Motion for Reconsideration with Motion to Dismiss.29chanrobleslaw
Though the Prosecution points out that accused failed to seasonably assert their right, it must be emphasized that the prosecution has not espoused a justifiable reason for the delay in the review of the April 12, 1996 Resolution. We reiterate that the review of the said Resolution did not involve any new computations nor any other ocular inspections. It was merely a revisit and an evaluation of records already at hand and of the cited Arias case and the reasons espoused for the dismissal of the cases against Dulinayan and Acot. Neither new findings nor major changes were reflected in the said Resolution.
Thus, the length of seven (7) years of review is obviously vexatious and oppressive. Likewise, the length of fifteen (15) years to hold the Preliminary Investigation is too long a time to conduct it, considering the circumstances of the case. As to the claim of the Prosecution that the accused failed to assert its rights, we quote the ruling of the Supreme Court in the case of Cervantes:ChanRoblesVirtualawlibraryThe Special Prosecutor also cited Alvizo v. Sandiganbayan (220 SCRA 55, 64) alleging that as in Alvizo the petitioner herein was "insensitive to the implications and contingencies thereof by not taking any step whatsoever to accelerate the disposition of the matter."We must highlight the fact that there is no contributory act on the part of the accused that resulted in the delay of the Preliminary Investigation.
We cannot accept the Special Prosecutor's ratiocination. It is the duty of the prosecutor to speedily resolve the complaint, as mandated by the Constitution, regardless of whether the petitioner did not object to the delay or that the delay was with his acquiescence provided that it was not due to causes directly attributable to him.
Based on the facts and circumstances discussed above, and after considering that the right of the aecused-movants to the speedy disposition of their cases and the right of the State to punish people who violated its penal laws should be balanced, this Court resolves to grant the Motions of accused. The prosecution has utterly failed to justify the inordinate delay in the preliminary investigation of these cases.26chanroblesvirtuallawlibrary
Respondents Gadin, Orquiola, Llave, Gloria Bayona and Ramon Bayona, Jr. contended, among others, that their right to speedy disposition of cases was violated due to the inordinate delay in the preliminary investigation of the case. Respondent Gadin argued that the delay deprived him from adequately defending himself since the witnesses who could testify in the processes and procedures in the Finance Department of the Philippine Air Force are no longer available and some of the documents he could have used for his defense could not anymore be found.
On November 2, 2010, petitioner filed a Motion for Reconsideration of the Sandiganbayan's Resolution dated October 15, 2010. On September 9, 2011, the Sandiganbayan denied petitioner's Motion for Reconsideration and granted the motions to quash filed by respondents Gadin, Orquiola, Llave, Bayona and Bayona, Jr.
Hence, this petition wherein petitioners impute to public respondent Sandiganbayan grave abuse of discretion amounting to lack or excess of jurisdiction when it granted all of private respondents' motion to quash and denied petitioner's motion for reconsideration.
On January 12, 2012, the Court resolved to require private respondents to comment on the instant petition.30chanrobleslaw
We first tackle the propriety of the petition for certiorari under Rule 65 of the Rules of Court. In the Comment filed by respondents Tampolino, Ramirez, Cariño, Sabado, Cuenca, Morales, Orquiola and Llave, they stated that the remedy of the petitioner should have been appeal by certiorari under Rule 45 because the issue is allegedly purely legal citing the case of People v. Sandiganbayan, et al.31 According to the aforesaid respondents, the Resolution of the public respondent Sandiganbayan which quashed the Informations was a final order that finally disposed of the case such that the proper remedy is a petition for review under Rule 45. And that, the petition was filed beyond the fifteen-day reglementary period within which to file an appeal.
We do not agree.
A petition for review on certiorari under Rule 45 of the Rules of Court and a petition for certiorari under Rule 65 of the Rules of Court are two and separate remedies. A petition under Rule 45 brings up for review errors of judgment, while a petition for certiorari under Rule 65 covers errors of jurisdiction or grave abuse of discretion amounting to excess or lack of jurisdiction. Grave abuse of discretion is not an allowable ground under Rule 45. A petition for review under Rule 45 of the Rules of Court is a mode of appeal:32
Section 1. Filing of petition with Supreme Court. - A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court, or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth.However, the provision must be read in relation to Section 1, Rule 122 of the Revised Rules of Court, which provides that any party may appeal from a judgment or final order "unless the accused will thereby be placed in double jeopardy." Therefore, the judgment that may be appealed by the aggrieved party envisaged in Rule 45 is a judgment convicting the accused, and not a judgment of acquittal. The State is barred from appealing such judgment of acquittal by a petition for review.33chanrobleslaw
Instead, a judgment of acquittal may be assailed by the People in a petition for certiorari under Rule 65 of the Rules of Court without placing the accused in double jeopardy. However, in such case, the People is burdened to establish that the court a quo, in this case, the Sandiganbayan, acted without jurisdiction or grave abuse of discretion amounting to excess or lack of jurisdiction or a denial of due process.34chanrobleslaw
In the case of People v. Asis,35 it was held that:ChanRoblesVirtualawlibrary
A petition for certiorari under Rule 65, not appeal, is the remedy to question a verdict of acquittal whether at the trial court or at the appellate level. In our jurisdiction, We adhere to the finality-of-acquittal doctrine, that is, a judgment of acquittal is final and unappealable. The rule, however, is not without exception. In several cases, the Court has entertained petitions for certiorari questioning the acquittal of the accused in, or the dismissals of, criminal cases. x x xThus, the instant petition for certiorari is the correct remedy in seeking to annul the Resolutions of public respondent Sandiganbayan for allegedly having been issued without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction which granted the motions to quash or dismiss filed by private respondents which were premised on the ground of inordinate delay in the conduct of the preliminary investigation amounting to a violation of their rights to speedy disposition of their cases.
We go now to the issue of whether there was a violation of the right of the private respondents to speedy disposition of their cases. This right is enshrined in Article III of the Constitution, which declares:ChanRoblesVirtualawlibrary
Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial or administrative bodies.The constitutional right is not limited to the accused in criminal proceedings but extends to all parties in all cases, be it civil or administrative in nature, as well as all proceedings, either judicial or quasi-judicial.36 In this accord, any party to a case may demand expeditious action from all officials who are tasked with the administration of justice.37 This right, however, like the right to a speedy trial, is deemed violated only when the proceeding is attended by vexatious, capricious, and oppressive delays.38chanrobleslaw
The concept of speedy disposition is relative or flexible. A mere mathematical reckoning of the time involved is not sufficient. Particular regard must be taken of the facts and circumstances peculiar to each case.39 Hence, the doctrinal rule is that in the determination of whether that right has been violated, the factors that may be considered and balanced are as follows: (1) the length of delay; (2) the reasons for the delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the delay.40chanrobleslaw
In the case at bar, the investigatory process was set in motion on December 28, 1994 when the complaint was filed with the Office of the Ombudsman, and the last Counter-Affidavit was filed on March 11, 1996. The Graft Investigation Officer came up with a Resolution on April 12, 1996, or after one (1) year, three (3) months and fifteen (15) days from the start of the investigation proceedings.
The Resolution dated April 12, 1996 recommended the filing of charges against the private respondents of violation of Section 3(e), RA 3019 and Article 217, in relation to Articles 171 and 172 of the Revised Penal Code.
According to the petitioner, the Resolution was not immediately approved by the higher authorities of the Office of the Ombudsman because it was allegedly subjected to "painstaking scrutiny and review."41 And that, as a result of this "painstaking scrutiny and review," two Memoranda were issued dated July 10, 1996 and January 12, 1998.
The Memorandum dated July 10, 1996 of Special Prosecution Officer Reynaldo Mendoza, which was approved by Deputy Ombudsman Casimiro, contained a recommendation that only cases for Violation of Section 3(e) of RA 3019 should be filed. The Memorandum dated January 12, 1998, which was issued by Special Prosecutor Leonardo P. Tamayo, recommended the dismissal of the cases against Acot and Dulinayan. The recommendation was approved by Ombudsman Aniano Desierto on March 2, 1998. On the same date, Ombudsman Aniano Desierto approved the Resolution dated April 12, 1996 with the following note - "with the modifications as to the respondents as recommended by SP Tamayo and as to the scope as recommended by the OSP." Otherwise stated, the Resolution dated April 12, 1996 was finally approved by Ombudsman Aniano Desierto on March 2, 1998, but with modification so as to incorporate the recommendation of Special Prosecutor Leonardo Tamayo that the charges against respondents Acot and Dulinayan be dropped.
The aforesaid approval of the Ombudsman should have resulted in the filing of information with the court, but no action was taken thereon.
Instead, on January 12, 1999, the case was subjected to another "re-evaluation" by the MOLEO. According to the petitioner, the "thorough re-evaluation" by the MOLEO was conducted since allegedly the senior officials of the office could not agree with the recommendation to drop respondents Acot and Dulinayan believing that both appear to have instigated the crime charged.42chanrobleslaw
In 2003, or after four (4) years of "thoroughly" evaluating the case, and upon the assumption of Ombudsman Simeon V. Marcelo, the case underwent another "thorough review," again, upon the recommendation of the MOLEO as alleged by the petitioner.43 By that time, nine (9) years had already passed since the filing of the complaint.
After two (2) more years, the MOLEO recommended another "thorough review" as stated in its Memorandum dated July 7, 2005 arguing against the dismissal of the case against Acot and Dulinayan. Thus, the case was referred to the Office of Legal Affairs (OLA).
On June 25, 2007, a Memorandum was issued containing the opinion of the OLA that probable cause exists in the commission of the crime as against respondents Acot and Dulinayan. The OLA opinion was concurred in by Over-all Deputy Ombudsman Casimiro when he approved the Review Memorandum dated October 23, 2008. Then, it took one more year for the Office of the Ombudsman to file the Informations.
From the foregoing, it is clear that from the time the first Resolution was issued by the Office of the Ombudsman on April 12, 1996, it took more than thirteen (13) years to review and file the Informations on October 6, 2009. Otherwise stated, from the time the complaint was filed on December 28, 1994, it took petitioner almost fifteen (15) years to file the Informations.
According to Angchangco, Jr. v. Ombudsman,44 inordinate delay in resolving a criminal complaint, being violative of the constitutionally guaranteed right to due process and to the speedy disposition of cases, warrants the dismissal of the criminal case.
The question therefore is - was the delay on the part of the Office of the Ombudsman vexatious, capricious, and oppressive? We answer in the affirmative.
In Tatad v. Sandiganbayan,45 there was a delay of almost three (3) years in the conduct of the preliminary investigation by the Tanodbayan. In ruling that such delay constituted a violation of the constitutional rights of the accused to due process and to a speedy disposition of cases, this Court took into account the following circumstances: (1) the complaint was resurrected only after Tatad had a falling out with the former President Marcos, and hence, political motivations played a vital role in activating and propelling the prosecutorial process; (2) the Tanodbayan blatantly departed from the established procedure prescribed by law for the conduct of preliminary investigation; and (3) the simple factual and legal issues involved did not justify the delay.
Likewise, in Angchangco, Jr. v. Ombudsman46 and Roque v. Office of the Ombudsman,47 this Court held that the delay of almost or more than six (6) years in resolving the criminal charges against the petitioners therein amounted to a violation of their constitutional rights to due process and to a speedy disposition of the cases against them, as well as the Ombudsman's own constitutional duty to act promptly on complaints filed before him.
In the present case, it took more than a decade for the Office of the Ombudsman to "re-evaluate" and "thoroughly review" the proper charges to file with the court and whether or not respondents Acot and Dulinayan should be charged. It must be stressed that the petitioner explicitly admitted in its reply to the comments of the private respondents that "the matter of the complexity of the legal issues involved was never raised by the prosecution as a reason for the delay." Instead, it tried to explain that the determination of probable cause in the instant case entails both factual and legal summations where allegedly more time was devoted to the "gathering, authentication, and validation of factual and verifiable assertions."48chanrobleslaw
Specifically, the petition alleges that the belated filing of the case was caused by the following events: (a) the initial resolution issued by the MOLEO, dated April 12, 1996, took time because of the need to conduct clarificatory hearing and on account of the various motions filed by private respondents; (b) the MOLEO Resolution dated April 12, 1996 was subjected to numerous conflicting reviews by the senior officials/higher authority in the Office of the Ombudsman; (c) considering the conflict between the findings of the MOLEO investigators and the recommendation of the senior officials vis-a-vis the amount of money involved and the positions held by respondents Acot and Dulinayan, the case was re-opened in 2003 for another review; (d) the Office of the Ombudsman was in the midst of transferring to its new building in Agham Road, Quezon City in 2001; and (e) from 1998 to 2009, there were three (3) Ombudsmen who handled the case which affected the immediate resolution thereof in terms of the added layer of review and study before these cases were filed in court.
We are not persuaded by the reasons for the delay advanced by the petitioner. Anent the first reason, the unnecessary delay was not in the issuance of the initial Resolution on April 12, 1996 because the motions were filed before the Resolution was issued on April 12, 1996.49 The delay came after April 12, 1996, that is, in the evaluation, re-evaluation and "thorough review" of the initial Resolution.
As to the second and third reasons, the Court cannot agree with the petitioner that the delay in the proceedings could be excused by the fact that the case had to undergo careful review and revision through the different levels in the Office of the Ombudsman before it is finally approved, in addition to the steady stream of cases which it had to resolve.50 Verily, the Office of the Ombudsman was created under the mantle of the Constitution, mandated to be the "protector of the people" and, as such, required to "act promptly on complaints filed in any form or manner against officers and employees of the Government, or of any subdivision, agency or instrumentality thereof, in order to promote efficient service."51 Precisely, the Office of the Ombudsman has the inherent duty not only to carefully go through the particulars of the case but also to resolve the same within the proper length of time. Its dutiful performance should not only be gauged by the quality of the assessment, but also by the reasonable promptness of its dispensation. Thus, barring any extraordinary complication, such as the degree of difficulty of the questions involved in the case or any event external thereto that effectively stymied its normal work activity any of which have not been adequately proven by the petitioner in the case at bar there appears to be no justifiable basis as to why the Office of the Ombudsman could not have earlier resolved the preliminary investigation proceedings against the private respondents.52chanrobleslaw
Neither are the last alleged causes of delay tolerable. Reasoning that the Office of the Ombudsman was in the midst of transferring to a new building is a lame excuse not to have resolved the matter at the earliest opportunity. In addition, the prolonged investigation of the case from 1998 to 2009 by three Ombudsmen with divergent views as to what charges should be filed and the persons to be indicted cannot be sufficient justification for the unreasonable length of time it took to resolve the controversy.
We need to emphasize, however, that the initial Resolution dated April 12, 1996 which was allegedly subjected to "painstaking scrutiny and review" (such that two conflicting findings were embodied in two Memoranda issued on July 10, 1996 and January 12, 1998) was finally approved by then Ombudsman Aniano Desierto on March 2, 1998. The Ombudsman has the discretion to determine whether a criminal case, given its attendant facts and circumstances, should be filed or not. It is basically his call. He may dismiss the complaint forthwith should he find it to be insufficient in form or substance, or he may proceed with the investigation, if in his view, the complaint is due in proper form or substance.53 But this Resolution dated April 12, 1996 despite its final approval was again subjected to a re-evaluation and "thorough review" by the MOLEO which is but a unit of the Ombudsman such that it could not reverse the findings of the Ombudsman.54 This was the cause of the delay which dragged on for seven (7) years, from 1998 to 2005, and another two (2) years when the case was referred to the Office of Legal Affairs of the Ombudsman.
In view of the unjustified length of time miring the Office of the Ombudsman's resolution of the case, as well as the concomitant prejudice that the delay in this case has caused, it is undeniable that respondent's constitutional right to due process and speedy disposition of cases had been violated. As the institutional vanguard against corruption and bureaucracy, the Office of the Ombudsman should create a system of accountability in order to ensure that cases before it are resolved with reasonable dispatch and to equally expose those who are responsible for its delays, as it ought to determine in this case.55chanrobleslaw
As to the reason advanced by the petitioner that in the year 2001 the Office of the Ombudsman was in the midst of transferring to its new building in Agham Road, Quezon City, it must be noted that the first Resolution was approved by then Ombudsman Desierto in 1998, while transfer of office occurred in 2001. A period of three (3) years, from 1998 to 2001, is ample time to review the case which started way back in 1994.
Petitioner also avers in its petition that there was the "inexplicable loss of the main folder" which deterred the prosecution of the cases as mentioned in the MOLEO Memorandum dated July 7, 2005 recommending "thorough review and re-evaluation of the case."56 It must be noted that as early as January 12, 1999, the records were subjected to a re-evaluation by the MOLEO.57 Yet, there was no showing or any statement that efforts were exerted to locate the alleged lost folder.58chanrobleslaw
Petitioner likewise partly puts the blame on the respondents that they did not take any steps whatsoever to accelerate the disposition of the matter. In the case of Cervantes v. Sandiganbayan,59 wherein it was held that there was a delay of six (6) years, this Court stated that it is the duty of the prosecutor to expedite the prosecution of the case regardless of whether the petitioner did not object to the delay or that the delay was with his acquiescence provided it was not due to causes attributable to him. This was explained in Coscolluela v. Sandiganbayan,60 to wit:ChanRoblesVirtualawlibrary
Records show that they could not have urged the speedy resolution of their case because they were unaware that the investigation against them was still on-going. They were only informed of the March 27, 2003 Resolution and Information against them only after the lapse of six (6) long years, or when they received a copy of the latter after its filing with the SB on June 19, 2009. In this regard, they could have reasonably assumed that the proceedings against them have already been terminated. This serves as a plausible reason as to why petitioners never followed-up on the case altogether. Instructive on this point is the Court's observation in Duterte v. Sandiganbayan:ChanRoblesVirtualawlibraryA defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process.61chanrobleslawPetitioners in this case, however, could not have urged the speedy resolution of their case because they were completely unaware that the investigation against them was still on-going. Peculiar to this case, we reiterate, is the fact that petitioners were merely asked to comment, and not file counter-affidavits which is the proper procedure to follow in a preliminary investigation. After giving their explanation and after four long years of being in the dark, petitioners, naturally, had reason to assume that the charges against them had already been dismissed.Being the respondents in the preliminary investigation proceedings, it was not the petitioners' duty to follow up on the prosecution of their case. Conversely, it was the Office of the Ombudsman's responsibility to expedite the same within the bounds of reasonable timeliness in view of its mandate to promptly act on all complaints lodged before it. As pronounced in the case of Barker v. Wingo.
On the other hand, the Office of the Ombudsman failed to present any plausible, special or even novel reason which could justify the four-year delay in terminating its investigation. Its excuse for the delay the many layers of review that the case had to undergo and the meticulous scrutiny it had to entail has lost its novelty and is no longer appealing, as was the invocation in the Tatad case. The incident before us does not involve complicated factual and legal issues, specially (sic) in view of the fact that the subject computerization contract had been mutually cancelled by the parties thereto even before the Anti-Graft League filed its complaint. (Emphasis and underscoring supplied)
Furthermore, the Court recognizes the prejudice caused to the private respondents caused by the lengthy delay in the proceedings against them. We do not agree with the petitioner that respondents did not suffer any damage because respondents Acot and Dulinayan were able to get their clearances. The right to speedy disposition of cases is not merely hinged towards the objective of spurring dispatch in the administration of justice but also to prevent the oppression of the citizen by holding a criminal prosecution suspended over him for an indefinite time.62 Akin to the right to speedy trial, its "salutary objective" is to assure that an innocent person may be free from the anxiety and expense of litigation or, if otherwise, of having his guilt determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose.63 This looming unrest, as well as the tactical disadvantages carried by the passage of time, should be weighed against the State and in favor of the individual. In the context of the right to a speedy trial, the Court in Corpuz v. Sandiganbayan64 stated:ChanRoblesVirtualawlibrary
A balancing test of applying societal interests and the rights of the accused necessarily compels the court to approach speedy trial cases on an ad hoc basis.As pointed out by respondent Gadin in his Comment, the delay of fifteen (15) years in the filing of the Informations impair his ability to adequately defend himself for the reason that the witnesses who could testify on the processes and procedures in the PAF Finance Service Units at the time the alleged offenses were committed may no longer be. found or available.
x x x Prejudice should be assessed in the light of the interest of the defendant that the speedy trial was designed to protect, namely: to prevent oppressive pre-trial incarceration; to minimize anxiety and concerns of the accused to trial; and to limit the possibility that his defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. There is also prejudice if the defense witnesses are unable to recall accurately the events of the distant past. Even if the accused is not imprisoned prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion and often, hostility. His financial resources may be drained, his association is curtailed, and he is subjected to public obloquy.
Delay is a two-edge sword. It is the government that bears the burden of proving its case beyond reasonable doubt. The passage of time may make it difficult or impossible for the government to carry its burden. The Constitution and the Rules do not require impossibilities or extraordinary efforts, diligence or exertion from courts or the prosecutor, nor contemplate that such right shall deprive the State of a reasonable opportunity of fairly prosecuting criminals. As held in Williams v. United States, for the government to sustain its right to try the accused despite a delay, it must show two things: (a) that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay; and (b) that there was no more delay than is reasonably attributable to the ordinary processes of justice.
Closely related to the length of delay is the reason or justification of the State for such delay. Different weights should be assigned to different reasons or justifications invoked by the State. For instance, a deliberate attempt to delay the trial in order to hamper or prejudice the defense should be weighted heavily against the State. Also, it is improper for the prosecutor to intentionally delay to gain some tactical advantage over the defendant or to harass or prejudice him. On the other hand, the heavy case load of the prosecution or a missing witness should be weighted less heavily against the State. x x x
Lastly, the contention is that the State cannot be bound by the mistakes committed by the public officers involved in the review of the case and that the right of the State to prosecute erring officers involved in this P89 Million-Peso Fiasco cannot be prejudiced. We should take note that equally true is the constitutional right of the respondents to the speedy disposition of cases and the constitutional mandate for the Ombudsman to act promptly on complaints.65 The Constitutional guarantee against unreasonable delay in the disposition of cases was intended to stem the tide of disenchantment among the people in the administration of justice by our judicial and quasi-judicial tribunals.66 The adjudication of cases must not only be done in an orderly manner that is in accord with the established rules of procedure but must also be promptly decided to better serve the ends of justice. Excessive delay in the disposition of cases renders the rights of the people guaranteed by the Constitution and by various legislations inutile.67chanrobleslaw
All told, the criminal complaints were correctly dismissed on the ground of inordinate delay of fifteen (15) years amounting to a transgression of the right to a speedy disposition of cases and therefore, the Sandiganbayan did not gravely abuse its discretion.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.chanRoblesvirtualLawlibrary
Velasco, Jr., (Chairperson), Perez, Reyes, and Jardeleza, JJ., concur.
1Rollo, p. 2.
2Rollo, p. 64.
3 Petition, rollo, p. 7; Comment to Petition, rollo, p. 75; Resolution, rollo, p. 55.
4 Petition, rollo, pp.7-8; Comment to Petition, rollo, p. 75.
5Ibid; Resolution, rollo, p. 55.
6 Comment to Petition, rollo, p. 75; Resolution, rollo, p. 55.
7Rollo, p. 8; Comment to Petition, rollo, p. 76; Resolution, rollo, p. 55.
8 Petition, rollo, p. 8; Comment to Petition, rollo, p. 76.
9Rollo, pp. 8 and 76, respectively; Resolution, rollo, p. 56.
10 Resolution, rollo, p. 56.
11Rollo, pp. 8 and 56; approved January 16, 1998 according to Dulinayan, rollo, p.76-77.
12Rollo, p. 56 and 77.
13Id. at 9.
16Rollo, p. 56
17 Comment to Petition, rollo, p. 77.
18Rollo, p. 9.
19 Resolution, rollo, p. 56.
21Rollo, p. 48.
22Id. at 42.
23 484 Phil. 899 (2004).
24 510 Phil. 70 (2005).
25cralawred Rollo, pp. 8-9.
26Id. at 59-60.
27Id. at 33.
28Id. at 12.
29Id. at 12 and 34.
30Id. at 62.
31 490 Phil. 105 (2005).
32Villareal v. Aliga, 724 Phil. 47, 60 (2014), citing People v. Sandiganbayan (First Division), 524 Phil. 496, 522 (2006).
34People v. Judge Laguio, 547 Phil. 296, 311 (2007); People v. Uy, 508 Phil. 637, 649 (2005).
35 643 Phil. 462, 469 (2010). (Citations omitted)
36Cadalin v. POEA's Administrator, G.R. No. 105029-32, December 5, 1994, 238 SCRA 722, 765.
37Capt. Roquero v. The Chancellor of UP-Manila, et al., 628 Phil. 628, 639 (2010).
38Dela Pena v. Sandiganbayan, June 29, 2001, 412 Phil. 921, 929 (2001), citing Cojuangco v. Sandiganbayan, 360 Phil. 559, 587 (1998); Blanco v. Sandiganbayan, 399 Phil. 674, 682 (2000).
39Binay v. Sandiganbayan, 374 Phil. 413, 447 (1999); Castillo v. Sandiganbayan, 304 Phil. 604, 613 (2000).
40Alvizo v. Sandiganbayan, G.R. No. 101689, March 17, 1993, 220 SCRA 55, 63; Dansal v. Fernandez, 383 Phil. 897, 906 (2000); Blanco v. Sandiganbayan, supra note 38.
41 Petition, rollo, p. 8.
42Id. at 9.
44 335 Phil. 766, 770 (1997).
45 242 Phil. 563 (1988).
46Supra note 44.
47 366 Phil. 568, 576-577 (1999).
48 Consolidated Reply, p. 8.
49 Comment of Jose R. Gadin, Jr., id. at 67.
50Coscolluela v. Sandiganbayan, et al., 714 Phil. 55, 62-63 (2013).
51Enriquez, et al. v. Office of the Ombudsman, 569 Phil. 309, 316 (2008).
52Coscolluela, v. Sandiganbayan et al., supra note 50, at 63.
53PCGG et al. v. Disierto, 563 Phil. 517, 525 (2007).
54Rollo, p. 81.
55Coscolluela v. Sandiganbayan, et al., supra note 50, at 67.
56Rollo, p. 17.
57Id. at 67.
58Id. at 36.
59 366 Phil. 602, 609 (1999).
60Supra note 50.
61Coscolluela v. Sandiganbayan, et al., supra note 50, at 63-64. (Citations omitted)
62Corpuz v. Sandiganbayan, supra note 23, at 917.
63Mari v. Gonzales, 673 Phil. 46, 55 (2011).
64Id. at 917-919. (Citations omitted)
65 1987 Constitution, Art. XI, Sec. 12.
66Capt. Roquero v. The Chancellor of UP-Mcmila, et al., supra note 37, at 640, citing Cruz, Constitutional Law, 2007 Ed., p. 295.
67Matias v. Judge Plan, Jr., 355 Phil. 274, 282 (1998).


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1 Definition of Mislay
The definition of mislay, the meaning of the word Mislay:
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- v. - Place (something) where one cannot find it again
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