PO3 JERRY INES, PETITIONER, VS. MUHAD M. PANGANDAMAN, RESPONDENT.

The facts of the case, as borne by the records, are as follows:

Respondent Muhad Pangandaman^[5] executed a Sinumpaang Salaysay^[6] dated 16 January 2010 stating that he was illegally arrested by several policemen while tending his store on 11 January 2010, allegedly for violating the gun ban.  Apparently, the policemen extorted from respondent the sum of two hundred thousand (P200,000.00) pesos in exchange for his liberty.

Respondent’s relatives, Diamungan M. Pangandaman and Mampao D. Rasul, who likewise executed their Pinagsamang Salaysay,^[7] maintained that they sought the help of Mangorsi Ampaso,^[8] President of the Muslim Vendor’s Association in Litex.  It was Ampaso who handed the money to the police, in particular, to SPO2 Dante Nagera.^[9]  Both Ampaso and SPO2 Nagera were included as respondents in the administrative complaint filed by respondent before the Office of the Ombudsman.  An Amended Complaint^[10] dated 24 February 2010 was later filed naming the other policemen who colluded with SPO2 Nagera in illegally arresting and extorting money from respondent, including herein petitioner, PO3 Jerry Ines.

Petitioner denied the charges against him and insisted that his participation in the alleged extortion was not even described by the respondent and his witnesses.

The Office of the Ombudsman later found petitioner and the rest of his co-respondents guilty of Grave Misconduct.  The dispositive portion of the assailed Decision states:

“X x x

WHEREFORE, PSupt. Crisostomo Mendoza, SPO1 Amor Guiang, PO2 Rodger Ompoy, SPO2 Dante Nagera and PO3 Jerry Ines are hereby found GUILTY of grave misconduct and are meted the penalty of Dismissal from the Service with its accessory penalties namely, disqualification to hold public office, forfeiture of retirement benefits, cancellation of civil service eligibilities and bar from taking future civil service examinations.

PROVIDED, that in case respondents are already retired from the government service, the alternative penalty of FINE equivalent to ONE YEAR salary is hereby imposed, with the same accessory penalties mentioned above.

Let a copy of this Decision be forwarded to the Secretary, Department of Interior and Local Government, and the Chief, Philippine National Police for appropriate action and implementation.

As to the other respondents, namely, Mangorsi Ampaso, PO3 Polito, PO3 Perez and PO2 Vacang, the instant administrative case against them is DISMISSED.

SO ORDERED.

X x x”^[11]

Petitioner jointly filed with the rest of his co-respondents a Motion for Reconsideration^[12] in the administrative case. However, petitioner failed to attach a copy of the said Motion in the instant Petition.

The Office of the Ombudsman denied the said Motion, along with the separate Motion for Reconsideration in OMB-P-C-100801-H on the its Decision pertaining to the criminal case for robbery, extortion, unlawful arrest, arbitrary detention and violation of R.A. 3019. The dispositive portion of the Ombudsman’s Joint Order states:

“X x x

WHEREFORE, respondent-movants’ Motions for Reconsideration are DENIED.  This Office’s January 21, 2013 Resolution finding probable cause and recommending the filing of Informations for Robbery Extortion and Arbitrary Detention against them is AFFIRMED.  The Decision finding them guilty of Grave Misconduct with penalty of Dismissal from service is likewise AFFIRMED.

Let copy of this Joint Order be forwarded to the Secretary, Department of Interior and Local Government, and the Chief, Philippine National Police for information and appropriate action.

SO ORDERED.

X x x”^[13]

Feeling aggrieved, petitioner filed the instant Petition for Review before the Court, raising the following issues:

3.1	The Office of the Ombudsman erred and committed grave abuse of discretion, in dismissing the undersigned Petitioner-Appellant (sic) from service with its accessory penalties; considering that Respondent-Appellee (sic) failed to prove by substantial evidence that Petitioner-Appellant (sic) participated in the alleged arrest and detention of Respondent-Appellee (sic). Neither is there any evidence on record to support the findings and conclusion that Petitioner-Appellant (sic) demanded money from Defendant-Appellee or from any person acting in his behalf, nor did Petitioner-Appellant receive any money from Defendant-Appellee (sic) or from any person acting for and in behalf of defendant-appellee.
3.2	The Office of the Ombudsman committed (sic) erred and committed grave abuse of discretion by not conducting a clarificatory hearing as mandated by Administrative Order No. 17, dated September 13, 2013, which amended Administrative Order No. 07 dated April 10, 1990, entitled “Rules of Procedure in the Office of the Ombudsman”. The undersigned Petitioner-Appellant (sic) did not waive his right to be present at said clarificatory hearing/formal hearing which is part of the procedural due process. Had the Office of the Ombudsman conducted clarificatory hearing in accordance with the rules, this would have enabled the parties to positively identify those allegedly involved in the act complained of. Therefore, positive identification and conspiracy were not established by the evidence on record.
3.3	The Office of the Ombudsman committed grave abuse of discretion and erred in failing to appreciate the evidence appearing on file in the Office of the Ombudsman that Muhad M. Pangandaman appears to be a fictitious person.[14]

The issues can be simplified, thus: 1) whether or not petitioner was deprived of due process for failure of the Office of the Ombudsman to set a clarificatory hearing; and 2) whether or not the Ombudsman erred in finding petitioner guilty of grave misconduct.

At the outset, the Court notes that the first issue on the alleged denial of due process, for failure to set a clarificatory hearing, is being raised for the first time on appeal.

It is well-settled that no question shall be entertained on appeal unless it has been raised in the proceedings below. Points of law, theories, issues and arguments not brought to the attention of the lower court, administrative agency or quasi-judicial body, need not be considered by a reviewing court, as they cannot be raised for the first time at a late stage. Basic considerations of fairness and due process impel this rule. Any issue raised for the first time on appeal is barred by estoppel.^[15]

Even if We disregard the aforestated doctrine, We find no merit in petitioner’s argument that he was denied due process.

The conduct of administrative complaints filed before the Office of the Ombudsman is provided for under the Ombudsman Rules of Procedure, to wit:

“X x x

1. If the complaint is docketed as an administrative case, the respondent shall be furnished with a copy of the affidavits and other evidence submitted by the complainant, and shall  be ordered to file his counter-affidavit and other evidence in support of his defense, within ten (10) days from receipt thereof, together with proof of service of the same on the complainant who may file his reply-affidavit within ten (10) days from receipt of the counter-affidavit of the respondent;
2. If the Hearing Officer finds no sufficient cause to warrant further proceedings on the basis of the affidavits and other evidence submitted by the parties, the complaint may be dismissed. Otherwise, he shall issue an Order (or Orders) for any of the following purposes:
   1. To direct the parties to file, within ten (10) days from receipt of the Order, their respective verified position papers. The position papers shall contain only those charges, defenses and other claims contained in the affidavits and pleadings filed by the parties. Any additional relevant   affidavit   and/or   documentary evidence may be attached by the parties to their  position  papers.   On the basis of the position papers, affidavits and other pleadings file, the Hearing Officer may consider the case submitted for resolution.
   2. If  the Hearing Officer decides not to consider    the   case   submitted   for resolution after the filing of the position papers,  affidavits  and pleadings, to conduct a clarificatory hearing regarding facts material to the case as appearing in the respective position papers, affidavits and pleadings filed by the parties. At this stage, he may, at his discretion and for the purpose of determining whether there is a need for a formal  trial  or  hearing, ask clarificatory questions to further elicit facts or information;

      In the conduct of clarificatory hearings, the   parties shall be afforded the opportunity to be present but without the right to examine or cross-examine the party/witness being questioned. The parties may be allowed to raise clarificatory questions and elicit answers from the opposing party/witness, which shall be coursed through the Hearing Officer who shall determine whether or not the proposed questions are necessary and relevant. In such cases, the Hearing Officer shall ask the question in such manner and phrasing as he may deem appropriate. [Emphasis supplied]

X x x”

From the foregoing, it is evident that the conduct of clarificatory hearing is not mandatory.  It is within the discretion of the hearing officer to decide if indeed clarificatory hearing is necessary.  The Office of the Ombudsman has been granted virtually plenary investigatory powers by the Constitution and by law.  As a rule, the Office of the Ombudsman may, for every particular investigation, whether instigated by a complaint or on its own initiative, decide how best to pursue such investigation.^[16]  In this case, the hearing officer opted not to set a clarificatory hearing, that is, after evaluating the pleadings and evidence submitted by the parties, he found it unnecessary to conduct a hearing.

Moreover, it cannot be said that petitioner was denied due process.  After all, he was made to file his Counter-Affidavit and the supporting evidence, if any, to aid in his defense.  To be sure, the essence of due process in administrative proceedings is the opportunity to explain one’s side or seek a reconsideration of the action or ruling complained of. As long as the parties are given the opportunity to be heard before judgment is rendered, the demands of due process are sufficiently met.^[17]

We now go to the second issue,  the Ombudsman’s finding that petitioner is liable for grave misconduct.

Misconduct has a legal and uniform definition. Misconduct has been defined as an intentional wrongdoing or a deliberate violation of a rule of law or standard of behavior, especially by a government official.  A misconduct is grave where the elements of corruption, clear intent to violate the law or flagrant disregard of established rule are present.  Otherwise, a misconduct is only simple.^[18]

In this case, petitioner’s alleged participation in the imputed crime of robbery-extortion was made the basis for the finding of liability for gross misconduct.  The Office of the Ombudsman ruled that while petitioner and his co-respondents  therein denied any involvement in the said robbery-extortion, the same was purely self-serving.  Coupled with the fact that the respondent was arrested without any legal basis, the Office of the Ombudsman found out that the elements of corruption, clear intent to violate the law or flagrant disregard of established rules were manifest.

We agree.

While petitioner may not be the one who actually demanded the money or received the same from the respondent, it cannot be denied that he was named as one of the police officers involved in the alleged illegal arrest of the respondent.  Petitioner was in fact named in the Amended Complaint^[19] filed by the respondent, as one of those included in the charge for unlawful arrest, arbitrary detention and violation of R.A. 3019.

Undaunted, petitioner argues that there is no direct evidence linking him to the alleged extortion.  He claims that Ampaso, his co-respondent in the administrative and criminal charges before the Office of the Ombudsman, even retracted his Sinumpaang Salaysay implicating Amor Guiang and SPO2 Nagera in the alleged extortion.^[20]  Further, Ampaso even stated that no such Muhad M. Pangandaman,  the respondent and complainant therein, exists.

We find petitioner’s argument specious.

It may be that respondent has no such record of birth with the National Statistics Office, or that the respondent and his eyewitnesses could not be located at their stated address.  It does not necessarily mean, however, that the respondent and his witnesses are non-existent persons.  After all, herein respondent personally filed his Sinumpaang Salaysay, together with his witnesses, at the police station.  Logic dictates that they cannot be mere figments of the imagination.  That they could not be found at their provided address  does not mean their existence is spurious.  It is not unlikely that respondent and his witnesses changed addresses for various reasons.  Thus, without any convincing proof, We cannot subscribe to petitioner’s theory that respondent and his witnesses are non-existent; moreover, considering that the same respondent filed a Consolidated Comment (On Petition For Review) in CA-G.R. SP No. 132078, entitled “SPO2 Dante D. Nagera vs. Muhad M. Pangandaman.”^[21]

Neither could the Court believe Ampaso’s retraction hook, line and sinker.  Ampaso’s retraction came about only on 03 April 2013, after he was implicated as respondent in the complaint before the Office of the Ombudsman and after the corresponding Information for the crime of arbitrary detention and robbery extortion has been filed against him on 21 January 2013.^[22]  Besides, affidavits of retraction of testimonies are generally looked with disfavor because there is always the probability that they may later be repudiated.^[23]

It is well-entrenched that in an administrative proceeding, the quantum of proof required for a finding of guilt is only substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and not proof beyond reasonable doubt which requires moral certainty to justify affirmative findings.^[24]

In this case, the Office of the Ombudsman is correct in ruling that substantial evidence exists warranting the finding of guilt against petitioner for grave misconduct.  While he was not specifically named as the one who demanded or received money from the respondent, his participation thereof cannot be denied.  From the sworn affidavits of the respondent and his witnesses, it is evident that petitioner was one of those who perpetrated respondent’s illegal arrest which paved the way for his co-respondents in the criminal and administrative cases to extort money from the respondent.  To Our mind, petitioner’s engagement in the illegal arrest of herein respondent, among others, constitutes grave misconduct: corrupt conduct inspired by an intention to violate the law, or constituting flagrant disregard of well-known legal rules.^[25]

Finally, well-settled is the rule that the findings of fact of administrative bodies, if based on substantial evidence, are controlling on the reviewing authority. It is settled that it is not for the appellate court to substitute its own judgment for that of the administrative agency on the sufficiency of the evidence and the credibility of the witnesses. Administrative decisions on matters within their jurisdiction are entitled to respect and can only be set aside on proof of grave abuse of discretion, fraud or error of law.^[26]

WHEREFORE, premises considered, the instant Petition is DENIED.  Accordingly, the assailed Decision dated 21 January 2013 is AFFIRMED IN TOTO.

SO ORDERED.

Bato, Jr., (Chairperson), and ^[1]Peralta, Jr.,  JJ., concur.

^[2] Rollo, pages 03 to 22.

^[3] “Petitioner,” for brevity.

^[4] Rollo, pages 25 to 31.

^[5] “Respondent,” for brevity.

^[6] Rollo, page 62 to 63.

^[7] Id. at 71.

^[8] “Ampaso,” for brevity.

^[9] “SP02 Nagera,” for brevity.

^[10] Rollo, page 64.

^[11] Id. at 29 to 30.

^[12] Id. at 33 to 43.

^[13] Id. at  43.

^[14] Id. at 05 to 06.

^[15] Engr. Job Y. Besana, et al. vs. Rodson F. Mayor, et al., G.R. No. 153837, 21 July 2010.

^[16] Racho vs. Miro, et al., G.R. No. 168578-79, 30 September 2008.

^[17] Medina vs. COA, et al., G.R. No. 176478, 04 February 2008.

^[18] Imperial, Jr., vs. GSIS, G.R. No. 191224, 04 October 2011; emphasis supplied.

^[19] Rollo, page 64.

^[20] Id., Pag-Urong ng Sinumpaang Salaysay (Withdrawal of Sworn Statement), pages 72 to 74.

^[21] See Rollo page 85.

^[22] Id. at 57 to 61.

^[23] People vs. Fontanilla, G.R. No. 147662-63, 15 August 2003.

^[24] Office of the Ombudsman vs. Mapoy and Regalario, G.R. No. 197299, 13 February 2013.

^[25] Id.

^[26] Medina vs. COA, et al., G.R. No. 176478, 04 February 2004.