(click link)
"x x x.
Petitioners rely heavily on the cases of Lopez v. Court of Appeals[12] and Lapid v. Court of Appeals[13] where the Court held, in essence, that a decision of the Office of the Ombudsman in administrative cases is stayed as a matter of right during the pendency of an appeal. The Lapid and Lopez cases, however, were decided in 2000 and 2002 respectively. Since then, there have been amendments to the Rules of Procedure of the Office of the Ombudsman. At present, Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman, as amended by Administrative Order No. 17, dated September 15, 2003, provides:
SECTION 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 fine equivalent to one month salary, the decision shall be final, executory and unappealable. In all other cases, the decision may be appealed to the Court of Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules of Court, within fifteen (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 Office of the Ombudsman in administrative cases shall be executed as a matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be a ground for disciplinary action against said officer. (Emphasis supplied.)
Under this provision, a respondent who is found administratively liable by the Office of the Ombudsman and is slapped with a penalty of suspension of more than one month from service has the right to file an appeal with the CA under Rule 43 of the 1997 Rules of Civil Procedure, as amended. But although a respondent is given the right to appeal, the act of filing an appeal does not stay the execution of the decision of the Office of the Ombudsman. Such has been the consistent ruling of this Court since our decision in In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of DPWH[14] which overturned the rulings in the Lopez and Lapid cases.
In the recent case of Office of the Ombudsman v. Court of Appeals and Barriga,[15] a January 2011 case, the Court reiterated the rule as follows:
The provision in the Rules of Procedure of the Office of the Ombudsman is clear that an appeal by a public official from a decision meted out by the Ombudsman shall not stop the decision from being executory. In Office of the Ombudsman v. Court of Appeals and Macabulos,[16] we held that decisions of the Ombudsman are immediately executory even pending appeal in the CA. As explained by this Court in the case of In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of DPWH,[17] this provision in the rules of the Ombudsman is similar to that provided under Section 47 of the Uniform Rules on Administrative Cases in the Civil Service. (Emphasis supplied.)
In fine, the execution of the April 8, 2005 Orders of the Ombudsman finding petitioners administratively liable and imposing the penalty of dismissal from service against petitioners Ganaden, Bautista, and Narciso, and suspension for one year on petitioner Mina were not stayed by the filing of an appeal with the CA. Accordingly, the Resolutions of the CA dated October 11, 2005, October 28, 2005 and November 23, 2005 were all in order.
Grave abuse of discretion is defined as capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.[18] The subject Resolutions having been issued in accordance with law and existing jurisprudence, no grave abuse of discretion could be ascribed to the appellate court.x x x."
