FIRST DIVISION

[G.R. No. 232325. April 10, 2019.]

DOMINGO CREBELLO , petitioner, vs. OFFICE OF THE OMBUDSMAN

and TIMOTEO T. CAPOQUIAN, JR. , respondents.

DECISION

BERSAMIN , C.J : p

A decision absolving a respondent elective public o cial rendered in an

administrative case by the O ce of the Ombudsman (OMB), being nal and
unappealable pursuant to the rules of the OMB, may still be assailed by petition for
certiorari in the Court of Appeals (CA).
The abandonment of the doctrine of condonation took effect on April 12, 2016,
when the Supreme Court denied with nality the OMB's motion for reconsideration in
Morales v. Court of Appeals . 1 However, the application by the OMB of the doctrine of
condonation prior to its abandonment without the respondent elective public o cial
invoking the same as a defense was whimsical, and amounted to grave abuse of
discretion. Condonation, being a matter of defense, must be speci cally invoked by the
respondent elective public official.

The Case

The petitioner appeals the resolution promulgated on January 16, 2017 by the CA
in CA-G.R. SP No. 148977 that dismissed the administrative complaint for nepotism in
violation of Section 59, in relation to Section 67, of Executive Order No. 292 n
(Administrative Code of 1987), and Section 49, in relation to Section 55, of Presidential
Decree No. 807 n (Civil Service Law) initiated by the petitioner in the OMB against
respondent Timoteo T. Capoquian, Jr. as the Mayor of the Municipality of Gamay,
Province of Northern Samar. 2

Antecedents

The factual and procedural antecedents, as culled from the decision of the OMB,
3 are as follows:
This is an administrative complaint for Nepotism led by the Public
Assistance and Corruption Prevention O ce (PACPO) of the O ce of the
Ombudsman-Visayas against Mayor Timoteo T. Capoquian, Jr. and Vice Mayor
Enrique C. Gomba, both of the Municipality of Gamay, Province of Northern
Samar, and docketed on April 3, 2014.
This case stems from a letter-complaint of Domingo Crebello led on
September 10, 2009 for the alleged nepotism in the appointment of Raquel
Capoquian (Raquel), sister of respondent Capoquian, Jr. and Clarita Gomba
(Clarita), wife of respondent Gomba, to the Board of Directors of Gamay Water
CD Technologies Asia, Inc. 2019 cdasiaonline.com
 District. A fact- nding investigation, docketed as CPL-V-09-1076, was then
conducted.
By the duly approved Final Evaluation Report of December 10, 2012, it
was recommended that said CPL case be upgraded for preliminary investigation
and administrative adjudication. The dispositive portion reads:
WHEREFORE, this O ce nds merit to UPGRADE the case
into two (2) counts of Criminal and Administrative cases for
NEPOTISM (Sec. 59 in relation to Sec. 67 of Executive Order No.
292 n — Administrative Code of 1987 and Sec. 49 in relation to
Sec. 55 of PD 807 n — Civil Service Law) against Mayor Timoteo
Capoquian and Vice Mayor Enrique Gomba, Municipality of
Gamay, Northern Samar. HSAcaE

Complainant PACPO alleged that the Sangguniang Bayan (SB) of the

Municipality of Gamay passed and approved Resolution No. 10, Series of 2008,
creating the Gamay Water District and empowering respondent Capoquian, Jr.
to appoint members of its Board of Directors; that among those appointed by
Capoquian, Jr. are Raquel, his sister and Clarita, wife of respondent Gomba; that
in applying the rules of nepotism, the appointment of Raquel on March 5, 2008
is nepotic as she is related to respondent Capoquian, Jr. within the prohibited
third degree of consanguinity; and that the appointment of Clarita was also
nepotic for she was recommended by her husband, respondent Gomba as Vice
Mayor/Presiding Officer of the SB.
By Order of June 9, 2014, the O ce directed respondents to le their
Counter-A davits. Complainant was likewise given the chance to le its reply
thereto.
By Order of January 13, 2015, the O ce directed the parties to le their
respective verified position papers.
Respondents, however, failed to heed both directives. Such failure is
taken as a waiver on their part to controvert the charges. Nevertheless, the mere
failure of respondents to submit their Counter-A davits does not automatically
warrant a nding of probable cause. There is still a need to examine the
evidence presented by the complainants to determine if the same is su cient to
indict them of the crimes charged. The case will thus be resolved on the basis of
the evidence on record. 4
In its decision, the O ce of the Ombudsman held that by reason of the
re-election of respondent Capoquian, Jr. as Mayor during the 2010 elections, the
administrative case against him should be dismissed by virtue of the doctrine of
condonation of administrative offenses committed during a prior term following
the Court's ruling in Aguinaldo v. Santos. 5
The dispositive portion of the decision of the OMB reads thusly:
WHEREFORE, respondent ENRIQUE C. GOMBA is hereby found GUILTY of
NEPOTISM and meted the penalty of DISMISSAL FROM SERVICE. The penalty
of Dismissal shall carry with it cancellation of eligibility, forfeiture of retirement
bene ts, perpetual disquali cation from holding public o ce and bar from
taking the civil service examinations.
The charge against respondent TIMOTEO T. CAPOQUIAN, JR.,
who was re-elected as the Mayor of Gamay, Northern Samar, is hereby
dismissed for being moot.
xxx xxx xxx
CD Technologies Asia, Inc. 2019 cdasiaonline.com
 SO DECIDED. 6
The petitioner moved for partial reconsideration, arguing that the doctrine of
condonation had already been abandoned on November 10, 2015 through the ruling
promulgated in Morales v. Court of Appeals ; hence, the doctrine could no longer be
made to apply in favor of respondent Capoquian, Jr. if the decision thereon had been
approved by the Ombudsman on March 31, 2016.
The OMB denied the motion for partial reconsideration, and held that the ruling in
Morales v. Court of Appeals became nal only on April 12, 2016, the date of the
promulgation of the minute resolution denying with nality its motion for
clarification/motion for reconsideration.
Following the denial by the Supreme Court of the motion for clari cation/motion
for reconsideration in Morales v. Court of Appeals , the OMB issued Circular No. 17 on
May 11, 2016 to set the cut-off date on the condonation doctrine, and to state that the
OMB would no longer implement the condonation doctrine from April 12, 2016
onwards.
Aggrieved, the petitioner assailed the resolution of the OMB in the CA by petition
f o r certiorari, alleging that the OMB thereby committed grave abuse of discretion
amounting to lack or excess of jurisdiction. HESIcT

However, the CA promulgated the assailed resolution of January 16, 2017

dismissing the petition for certiorari for being the wrong legal remedy on the basis of
the pronouncement made in Fabian v. Desierto 7 to the effect that appeals from the
decisions of the OM in administrative disciplinary cases should be brought to the CA by
petition for review under Rule 43. 8
The CA denied the petitioner's motion for reconsideration on June 14, 2017.

Issues

In this appeal, two issues are presented for consideration and resolution, namely:
(1) whether or not the CA erred in holding that the petition for certiorari was the wrong
remedy to assail the decision of the OMB absolving respondent Capoquian, Jr. from the
administrative charge of nepotism; and (2) whether or not the OMB committed grave
abuse of discretion in applying the condonation doctrine in favor of respondent
Capoquian, Jr.

Ruling of the Court

The appeal has merit.

We have ruled in Fabian v. Desierto 9 that, indeed, appeals from the decisions of
the OMB rendered in administrative disciplinary cases should be taken to the CA via
petition for review under Rule 43 of the Rules of Court. We have reiterated this ruling
subsequently. 1 0
Nonetheless, the CA's reliance on Fabian v. Desierto was misplaced. The CA
CD Technologies Asia, Inc. 2019 cdasiaonline.com
 obviously did not take into account that the OMB had absolved respondent Capoquian,
Jr. from liability based on its application of the doctrine of condonation arising from his
re-election to the same position. Such absolution was nal, executory and unappealable
under Section 7, Rule III, of Administrative Order No. 07, issued by the OMB to
implement Section 27 of Republic Act No. 6770, which reads:
SEC. 7. Finality and execution of decision. — Where the respondent is
absolved of the charge, and in case of conviction where the penalty imposed is
public censure or reprimand, suspension of not more than one month, or a ne
equivalent to one month salary, the decision shall be nal, executory and
unappealable. In all other cases, the decision may be appealed to the Court of
Appeals on a veri ed petition for review under the requirements and conditions
set forth in Rule 43 of the Rules of Court, within fteen (15) days from receipt of
the written Notice of the Decision or Order denying the motion for
Reconsideration.
An appeal shall not stop the decision from being executory. In case the
penalty is suspension or removal and the respondent wins such appeal, he shall
be considered as having been under preventive suspension and shall be paid
the salary and such other emoluments that he did not receive by reason of the
suspension or removal.
A decision of the O ce of the Ombudsman in administrative cases shall
be executed as a matter of course. The O ce of the Ombudsman shall ensure
that the decision shall be strictly enforced and properly implemented. The
refusal or failure by any o cer without just cause to comply with an order of
the O ce of the Ombudsman to remove, suspend, demote, ne, or censure shall
be a ground for disciplinary action against said officer.
With the absolution of respondent Capoquian, Jr. being already nal and no
longer appealable, Rule 43, which de nes a mode of appeal, obviously did not apply.
Therein lay the reversible error of the CA.
We go further. The petitioner was not bereft of a recourse or legal remedy
against the absolution of respondent Capoquian, Jr. The nal and unappealable
decision of the OMB could still be the subject of judicial review through the petition for
certiorari upon allegation and proof of grave abuse of discretion on the part of the
OMB. We so enunciated in Republic v. Francisco, 1 1 to wit:
Since the decision of the Ombudsman suspending respondents for one
(1) month is nal and unappealable, it follows that the CA had no appellate
jurisdiction to review, rectify or reverse the same. The Ombudsman was not
estopped from asserting in this Court that the CA had no appellate jurisdiction
to review and reverse the decision of the Ombudsman via petition for review
under Rule 43 of the Rules of Court. This is not to say that decisions of the
Ombudsman cannot be questioned. Decisions of administrative or
quasi-administrative agencies which are declared by law nal and
unappealable are subject to judicial review if they fail the test of
arbitrariness, or upon proof of gross abuse of discretion, fraud or error
of law. When such administrative or quasi-judicial bodies grossly
misappreciate evidence of such nature as to compel a contrary
conclusion, the Court will not hesitate to reverse the factual ndings.
Thus, the decision of the Ombudsman may be reviewed, modi ed or
reversed via petition for certiorari under Rule 65 of the Rules of Court,
on a nding that it had no jurisdiction over the complaint, or of grave
abuse of discretion amounting to excess or lack of jurisdiction . 1 2
CD Technologies Asia, Inc. 2019 cdasiaonline.com
 (Emphasis supplied) caITAC

In view of the foregoing, we nd and hold to be correct the petitioner's stance

that the resolution absolving respondent Capoquian, Jr. of the charge of nepotism,
being nal and unappealable, could still be challenged or assailed through the petition
for certiorari. Plainly enough, the CA wrongly dismissed the petition for certiorari for
being the wrong remedy on the notion that the decisions of the OMB in administrative
cases should be assailed before the CA by petition for review under Rule 43.

II

The remaining issue involves the application of the doctrine of condonation,

which is a question of law.
The Court deems it wiser not to remand the case to the CA, and instead to take it
upon itself to resolve the issue. Thereby, the Court will avoid further delay in the
disposition of the case, and at the same time promote the speedy disposition of cases.
The resolution of the issue by the Court is proper because the records, pleadings, and
other evidence that would enable us to already rule on the matter are available to the
Court. 1 3
The petitioner submits that the doctrine of condonation had been abandoned on
November 10, 2015 through the ruling in Morales v. Court of Appeals ; 1 4 hence, the
decision of the OMB dated March 31, 2016 absolving respondent Capoquian, Jr.
because of condonation was unjusti ed inasmuch as the doctrine of condonation had
then been abandoned.
In contrast, the OMB insists that the ruling in Morales v. Court of Appeals on the
abandonment of the doctrine of condonation became nal only on April 12, 2016
because that was the date on which the Supreme Court had acted upon and denied with
nality its motion for clari cation/motion for partial reconsideration in Morales v. Court
of Appeals; and that it issued its O ce Circular No. 17 declaring that it would no longer
apply the defense of condonation starting on April 12, 2016 except for open and
pending administrative cases.
We sustain the insistence of the OMB. The ruling promulgated in Morales v. Court
of Appeals on the abandonment of the doctrine of condonation had, indeed, become
nal only on April 12, 2016, and thus the abandonment should be reckoned from April
12, 2016. Under the circumstances, the decision of the OMB dated March 31, 2016
absolving respondent Capoquian, Jr. by reason of the application of the doctrine of
condonation might have been justified.
However, the petitioner has assailed the application of the doctrine of
condonation precisely because respondent Capoquian, Jr. had not invoked the doctrine
of condonation as a defense. This omission on his part appears to be con rmed by the
records, which indicated that he did not submit or le his counter-a davit and veri ed
position paper despite being required to do so. Worse, the omission to submit or le,
according to the petitioner, amounted to his waiver of his right to controvert the charge
of nepotism brought against him.
In this regard, we have to agree with the petitioner.
I n Morales v. Court of Appeals , the Ombudsman took the strong position that
condonation was a matter of defense that should be raised and passed upon during the
administrative disciplinary proceedings, to wit:
CD Technologies Asia, Inc. 2019 cdasiaonline.com
 The Ombudsman also maintained that a reliance on the condonation
doctrine is a matter of defense, which should have been raised by Binay, Jr.
before it during the administrative proceedings, and that, at any rate, there is no
condonation because Binay, Jr. committed acts subject of the OMB Complaint
after his re-election in 2013. 1 5
xxx xxx xxx
The Ombudsman contends that it was inappropriate for the CA
to have considered the condonation doctrine since it was a matter of
defense which should have been raised and passed upon by her o ce
during the administrative disciplinary proceedings . 1 6
The aforestated position taken by the OMB in Morales v. Court of Appeals should
be upheld. Condonation is an a rmative fact that must be raised by the respondent in
the administrative proceedings to enable the OMB to fully consider and pass upon the
matter. That did not happen in the case of respondent Capoquian, Jr., whose failure to
le or submit his counter-a davit and veri ed position paper despite notice rendered
indubitable that he had not at all raised before the OMB the doctrine of condonation or
any other matter as a defense. Clearly, the OMB acted whimsically in absolving
respondent Capoquian, Jr. by virtue of condonation.
In other words, respondent Capoquian, Jr. should now be held administratively
liable for nepotism, which the OMB found to be fully established against him, and he
should consequently be meted the penalty of dismissal from the service with all the
accessory penalties. Yet, because the act complained of had happened during his term
in 2007-2010 as the Municipal Mayor of the Municipality of Gamay of the Province of
Northern Samar, which term had meanwhile expired, the penalty of dismissal from the
service can no longer be meted on him. Still, despite the principal penalty of dismissal
becoming moot, he should nonetheless suffer the accessory penalties of cancellation
of eligibility, forfeiture of retirement bene ts, perpetual disquali cation from holding
public o ce, and bar from taking civil service examinations. Otherwise, the law
becomes a travesty.
WHEREFORE , the Court GRANTS the petition for review on certiorari;
REVERSES and SETS ASIDE the resolution promulgated by the Court of Appeals in
CA-G.R. SP No. 148977 on January 16, 2017; DECLARES and FINDS respondent
TIMOTEO T. CAPOQUIAN, JR. guilty of NEPOTISM (in violation of Section 59, in
relation to Section 67, of Executive Order No. 292, n also known as the Administrative
Code of 1987, and Section 49, in relation to Section 55, of Presidential Decree No. 807,
n also known as the Civil Service Law) ; IMPOSES on respondent TIMOTEO T.
CAPOQUIAN, JR. the accessory penalties of cancellation of eligibility, forfeiture of
retirement bene ts, perpetual disquali cation from holding public o ce, and bar from
taking civil service examinations; and ORDERS him to pay the costs of suit. ICHDca

SO ORDERED .
Gesmundo and Carandang, JJ., concur.
Del Castillo * and Jardeleza, ** JJ., are on wellness leave.

Footnotes
* On wellness leave.
** On wellness leave.
CD Technologies Asia, Inc. 2019 cdasiaonline.com
 1. G.R. Nos. 217126-27, November 10, 2015, 774 SCRA 431.

2. Rollo, pp. 24-27, penned by Associate Justice Socorro B. Inting with Associate Justice
Remedios A. Salazar-Fernando and Associate Justice Priscilla J. Baltazar-Padilla
concurring.
3. Id. at 68-73.
4. Id. at 68-70.

5. Id. at 71.
6. Id. at 72-73. (Bold underscoring supplied for emphasis)
7. G.R. No. 129742, September 16, 1998, 295 SCRA 470.
8. Supra note 2, at 24.

9. G.R. No. 129742, September 16, 1998, 295 SCRA 470, 491.
10. See Lanting v. Ombudsman, G.R. No. 141426, May 6, 2005, 458 SCRA 93, 100-101.
11. G.R. No. 163089, December 6, 2006, 510 SCRA 377.
12. Id. at 393-394.
13. Bunao v. Social Security System, G.R. No. 159606, December 13, 2005, 477 SCRA 564, 571.

14. Supra, note 1.

15. Supra note 1, at 464.
16. Id. at 528.
n Note from the Publisher: Written as "Presidential Decree No. 807" in the original document.
n Note from the Publisher: Written as "Executive Order No. 292" in the original document.
n Note from the Publisher: Written as "PD 807" in the original document.
n Note from the Publisher: Written as "Executive Order No. 292" in the original document.
n Note from the Publisher: Written as "Presidential Decree No. 807" in the original document.
n Note from the Publisher: Written as "Executive Order No. 292" in the original document.

CD Technologies Asia, Inc. 2019 cdasiaonline.com