EN BANC

[G.R. No. 165776. April 30, 2008.]

GENEVIEVE O. GAAS and ADELINA P. GOMERA , petitioners, vs .

RASOL L. MITMUG, Regional Director, Region XII, Commission on
Audit , respondent.

DECISION

QUISUMBING , J : p

This is a petition for review on certiorari under Rule 45 of the Rules of Court
seeking a reversal of the Decision 1 dated February 9, 2004 and the Resolution 2 dated
September 9, 2004 of the Court of Appeals in CA-G.R. SP No. 56275. The appellate
court a rmed the Decision 3 dated October 23, 1997 of the O ce of the Ombudsman
for Mindanao in Case No. OMB-MIN-ADM-94-042 nding petitioners Genevieve O. Gaas
and Adelina P. Gomera guilty of gross neglect of duty and dismissing them from
government service. ETDSAc

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

Petitioners Genevieve O. Gaas and Adelina P. Gomera were the bookkeeper and
senior clerk, respectively, of the O ce of the Municipal Treasurer, Municipality of
Bacolod, Lanao del Norte.
On May 15, 1990, in accordance with Regional O ce Order No. 90-27-A dated
May 7, 1990, the State Auditors and Technical Audit Specialist of the Provincial
Auditor's O ce and the City Auditor's O ce conducted a cash examination as part of a
comprehensive audit on the cash and accounts of O cer-in-Charge (OIC)-Assistant
Municipal Treasurer Saturnino L. Burgos of Bacolod, Lanao del Norte. They discovered
that there was a shortage of cash in the possession of petitioners as follows: (1)
P19,483.20 in the possession of petitioner Gaas, representing disallowed vales or
chits; and (2) P29,956.28 in the possession of petitioner Gomera, also representing
disallowed vales or chits. Gaas explained to the auditors that she was tasked to receive
liquidations of collections from the Revenue Collection Clerks and was instructed by
Burgos to advance P25,648.80 from the collections in her possession for the payment
of various expenses to be incurred by the General Fund; and that P19,483.20 was
disallowed for reimbursement. Gomera, on the other hand, explained that she was
made to draw a cash advance out of the liquidated collections in the amount of
P25,648.80; and that the shortage consisted of chits of municipal o cers and
employees, which were submitted to her for deduction from their respective monthly
salaries; but the said chits were disallowed. Both petitioners settled the missing cash
upon demand. SCaIcA

Based on the comprehensive audit report submitted by the auditors, the

Commission on Audit (COA) sent a Letter 4 dated October 29, 1991 to the O ce of the
Ombudsman for Mindanao, recommending the ling of appropriate disciplinary actions
against petitioners. The O ce of the Ombudsman administratively charged petitioners,
Revenue Collection Clerk Nelson L. Gonzales and Municipal Mayor Warlino M. Relova for
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 dishonesty. They were required to submit counter-affidavits.
On October 23, 1997, the O ce of the Ombudsman for Mindanao rendered a
Decision nding petitioners and Gonzales guilty of gross neglect of duty and ordered
their dismissal. The complaint against Mayor Relova was dismissed without prejudice
to the result of the investigation of the criminal aspect of the same acts. CaTSEA

The O ce of the Ombudsman for Mindanao found substantial evidence against

petitioners for violating government accounting and auditing rules since petitioners
made disbursements without proper documentation. It stressed that chits, vales and
IOU's 5 are not valid means of disbursing funds and are not considered valid cash
items, citing the Manual on Cash Examination of the COA which states: "Vales, chits or
IOU's are not allowable under any circumstances". It ruled that by the nature of
petitioners' sensitive duties as custodians of government funds, it is their primary duty
to ensure that public funds are properly disbursed and the long practice of allowing
local o cials to obtain cash through vales is wrong. 6 The dispositive portion of the
decision reads:
WHEREFORE, PREMISES CONSIDERED, respondents Genevieve O. [G]aas,
Adelina P. Gomera and Nelson L. Gonzales are hereby found GUILTY of Gross
Neglect of Duty. Pursuant to the provision of Sec. 23 (c), Rule XIV, Civil Service
Commission Resolution No. 91-1631 dated December 27, 1991, Rules
Implementing Book V, of the Executive Order No. 292 and other pertinent Civil
Service Laws, they are dismissed from the service, without prejudice to their
right to appeal as provided under Sec. 27, R.A. [No.] 6770.EIDaAH

The Municipal Mayor shall implement this decision within ten (10) days
from the date that it shall have become final and executory.
The complaint against Mayor Warlino M. Relova is hereby dismissed,
without prejudice to the result of the investigation of the criminal aspect of
these same acts.
SO DECREED. 7
Petitioners led respective motions for reconsideration which were denied.
Thereafter, they led an appeal before the Court of Appeals which a rmed the decision
of the O ce of the Ombudsman for Mindanao. The dispositive portion of the Court of
Appeals decision reads:
WHEREFORE , the instant petition is hereby DISMISSED . The assailed
Decision dated October 23, 1997 and Order dated February 24, 1998, of the
O ce of the Ombudsman-Mindanao in Case No. OMB-MIN-ADM-94-042 are
hereby AFFIRMED . aCATSI

SO ORDERED . 8
The Court of Appeals, in a rming the decision of the Deputy Ombudsman for
Mindanao, ruled that the evidence presented was substantial, su cient to cause the
dismissal of petitioners:
. . . The comprehensive audit report submitted by public respondent
Commission on Audit, Region [XII], Cotabato City, reported that the shortages of
cash by the petitioners was due to the disallowed cash advances (vales or chits)
made by the municipal employees; that such cash advances were made through
the petitioners per instructions of Saturnino Burgos, the Assistant Municipal
Treasurer-OIC, who at that time appointed the petitioners as special disbursing
o cers; that appointing the petitioners as special disbursing o cers was
strictly prohibited since such [positions were] incompatible to the petitioners'
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 positions as municipal bookkeeper and unbonded senior clerk. The petitioners
themselves admitted such ndings but raised as a defense the alleged scheme
by Burgos under the guise of designating them as special disbursement o cers
and made them to perform tasks incompatible to their positions. IEcDCa

It is true that their immediate superior, Burgos, in his capacity as

Assistant Municipal Treasurer-OIC, was unauthorized to appoint them as special
disbursing o cers, hence, tasked to handle public funds. However, by accepting
such additional and incompatible task, the petitioners likewise accepted the
duty to be accountable [for] the public funds and to make sure that the
disbursement thereof are properly documented according to the rules and
regulations. The petitioners should have kept in mind the constitutional
mandates that a public o ce is a public trust; that all public o cers and
employees are held accountable to the people; and that they should serve the
people with utmost responsibility, integrity, loyalty and e ciency. Between their
duty as public employees and their duty to their immediate superior, who in
many cases would order them to do tasks in violation of the rules and
regulations, the petitioners should have considered their duty as public
employees, burdened with . . . accountability to the people, as their primary
responsibility. 9
Thus, this petition.
Petitioners argue that there was a misapprehension of facts by the Ombudsman
and the Court of Appeals since the shortage happened when the funds were still in the
possession of the collectors and not petitioners. They also lament that although the
complaint was led with the O ce of the Ombudsman for Mindanao as early as
November 18, 1991, the order for them to le their counter-a davits was made only on
June 16, 1995 or more than three years after and the case was resolved only on
October 23, 1997. According to them, the delay violated their constitutional rights to
due process and to a speedy disposition of the case. cCSDTI

On the other hand, respondent counters that questions of facts, particularly as to

who disbursed the funds as argued by petitioners, is not the proper subject of a
petition for review on certiorari before the Supreme Court. Respondent also argues that
petitioners cannot raise the issue on the alleged violation of their right to a speedy trial
for the first time on appeal.
The issues raised by petitioners for our resolution are:
I.
WHETHER OR NOT THERE WAS MISAPPREHENSION OF FACTS BY BOTH THE
OMBUDSMAN AND THE COURT OF APPEALS; and

II.
[WHETHER OR NOT] THE OMBUDSMAN VIOLATED ITS RULES OF PROCEDURE,
CONSTITUTING DEPRIVATION OF APPELLANT[S']/PETITIONERS' RIGHTS TO
SPEEDY TRIAL AND DUE PROCESS. 1 0 aSIHcT

On the other hand, respondent posits the following issues:

I.

WHETHER OR NOT THE INSTANT PETITION RAISES REVERSIBLE ERRORS OF

FACT OR OF LAW AS TO JUSTIFY A REVIEW UNDER RULE 45 OF THE RULES OF
COURT.
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 II.
WHETHER OR NOT THE PETITIONER MAY RAISE BEFORE THIS HONORABLE
COURT FOR REVIEW AN ISSUE WHICH WAS NEVER RAISED BELOW. 1 1
The primordial issues of the case are: (1) Did the Ombudsman commit an error
of fact in concluding that petitioners are guilty of gross neglect of duty? and (2) Were
petitioners' rights to a speedy trial and to a speedy disposition of the case violated? DaESIC

As to the rst issue, this Court has held that any appeal or application for remedy
against a decision or nding of the O ce of the Ombudsman may only be entertained
by the Supreme Court on a pure question of law. Section 14 of Republic Act No. 6770,
the Ombudsman Act of 1989, provides that "[n]o court shall hear any appeal or
application for remedy against the decision or ndings of the Ombudsman, except the
Supreme Court on a pure question of law." Moreover, Section 27 of the said Act
provides further that "[f]indings of fact by the O ce of the Ombudsman when
supported by substantial evidence are conclusive." 1 2
Findings of fact of the O ce of the Ombudsman are conclusive when supported
by substantial evidence and are accorded due respect and weight especially when they
are a rmed by the Court of Appeals. It is only when there is grave abuse of discretion
by the Ombudsman that a review of factual findings may aptly be made. 1 3
We nd no grave abuse of discretion on the part of the Ombudsman and uphold
its nding which was upheld by the Court of Appeals that there is substantial evidence
against petitioners for violating government accounting and auditing rules and making
disbursements without proper documentation. ECcaDT

As to the second issue, we rule that there was no violation of petitioners' rights
to a speedy trial and to a speedy disposition of the case.
The right to speedy disposition of cases, like the right to speedy trial, is violated
only when the proceedings are attended by vexatious, capricious and oppressive
delays. In the determination of whether said right has been violated, particular regard
must be taken of the facts and circumstances peculiar to each case. The conduct of
both the prosecution and the defendant, the length of the delay, the reasons for such
delay, the assertion or failure to assert such right by the accused, and the prejudice
caused by the delay are the factors to consider and balance. A mere mathematical
reckoning of time involved would not be sufficient. 1 4
In this case, although it is true that the Complaint was led on November 18,
1991 and petitioners received an Order 1 5 directing them to submit their counter-
a davits only three years after or on June 16, 1995, they failed to raise the issue of
speedy disposition of the case at that time. Instead, they submitted their counter-
a davits. It was only in this petition that they rst raised the issue. Neither have they
moved for a speedy resolution of the case. It was only when they lost and pursued their
appeal that they rst raised the issue. It cannot therefore be said that the proceedings
are attended by vexatious, capricious and oppressive delays. Petitioners cannot now
seek the protection of the law to bene t from the adverse effects of their failure to
raise the issue at the rst instance. In effect, they are deemed to have waived their
rights when they led their counter-a davits after they received the Order dated June
16, 1995 without immediately questioning the alleged violations of their rights to a
speedy trial and to a speedy disposition of the case. HcACST

WHEREFORE, the petition is DENIED. The assailed Decision dated February 9,

2004 and the Resolution dated September 9, 2004 of the Court of Appeals in CA-G.R.
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 SP No. 56275 are AFFIRMED.
Costs against petitioners.
SO ORDERED.
Puno, C.J., Ynares-Santiago, Austria-Martinez, Corona, (I certify that J. Corona, MP
concurred with the ponencia) Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Velasco,
Jr., Nachura, Reyes, Leonardo-de Castro and Brion, JJ., concur.
Carpio, is on leave.

Footnotes

1. Rollo, pp. 126-134. Penned by Associate Justice Hakim S. Abdulwahid, with Associate
Justices Delilah Vidallon-Magtolis and Jose L. Sabio, Jr. concurring.

2. Id. at 135-136. aESICD

3. Id. at 74-81.
4. Id. at 31-32.

5. Id. at 22.
6. Id. at 80.

7. Id. at 81.
8. Id. at 133.

9. Id. at 131-132. IDTcHa

10. Id. at 212.

11. Id. at 233.

12. Morong Water District v. Office of the Deputy Ombudsman, G.R. No. 116754, March 17,
2000, 328 SCRA 363, 369.

13. Bedruz v. Office of the Ombudsman, G.R. No. 161077, March 10, 2006, 484 SCRA 452, 456.
14. Mendoza-Ong v. Sandiganbayan, G.R. Nos. 146368-69, October 18, 2004, 440 SCRA 423,
425-426.
15. Rollo, p. 70. DAaEIc

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