THIRD DIVISION

HONORABLE OMBUDSMAN
SIMEON V. MARCELO,
Petitioner,

G.R. No. 175201

Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus -

AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

LEOPOLDO F. BUNGUBUNG
and
HON.
COURT
OF
APPEALS,

Promulgated:

Respondents.
April 23, 2008
x---------------------------------------------x

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of
Court, whereby petitioner Office of the Ombudsman (Ombudsman) prays for the
reversal of the Decision[1] dated 30 June 2006 and Resolution[2] dated 26 October
2006 of the Court of Appeals in CA-G.R. SP No. 89689 which, in turn, reversed
and set aside the Ombudsmans Orders dated 11 January 2005 and 28 April 2005 in
OMB-ADM-0-01-0502. The Ombudsman found respondent Leopoldo F.
Bungubung (Bungubung) administratively liable for grave misconduct, dismissing
him from the service and imposing the accessory penalties of cancellation of
eligibility, forfeiture of retirement benefits, and his perpetual disqualification from
reemployment in government service.

The Hon. Simeon V. Marcelo represented the Ombudsman, with powers and
functions provided under Article XI, Section 13 of the 1987 Constitution and the
provisions of Republic Act No. 6770, otherwise known as the Ombudsman Act of
1989.

Bungubung is the Manager of the Port District Office (PDO) of Manila, Philippine
Ports Authority (PPA), South Harbor, Port Area, Manila. He is also the Chairman
of the Ports District Security Bids and Awards Committee (PDSBAC) of the PPA.

On 24 September 2001, Roberto C. Doromal (Doromal), the President of Combat

Security & Executive Protection Agency (CSEPA), a security agency that

participated in the bidding for security services for the PPA, filed a ComplaintAffidavit[3] dated 7 September 2001 against Bungubung before PPA Resident
Ombudsman Manolo M. Mabini, alleging as follows:

3. That sometime in June 1995, my aforesaid wife was instrumental in

negotiating and concluding a contract for Security Services with the
Philippine Ports Authority (PPA), more particularly at the Port District of
Manila (PDO-Manila) for two (2) years starting August 1, 1995;

xxxx

6. That after a service contract was signed by PPA and this agency on
January 28, 1999, the Port District Manager of PDO-Manila, Mr.
Leopoldo Bungubung and other PPA officials asked for certain amounts
from my said wife as balato for winning the award where (sic) the latter
obliged herself to give;

7. That initially, Mr. Leopoldo Bungubung and other PPA officials

demanded amounts ranging from P10,000 a month down to P2,000 for
him (Bungubung) and his subordinates, respectively; and my wife
directed our staff, particularly the Billing and Collection Clerk and
Cashier to include in our records and books of account these
disbursements as Representation expense;

8. That when my late wife died on May 3, 2000, the same arrangement
was pursued and carried over through the period that I was already the
one dealing with PPA, and that, sometime in late April 2000, when the
security force was increased to 184 Security guards at North HarborSpecial Take-Over Unit (STU), the amount demanded by Mr.
Bungubung was also increased toP40,000 a month and
sometimes P50,000;

xxxx

10. That sometime in late February, 2001, one of office staff received a
telephone call from a certain Capt. Valenzuela of the Port Police Dept. of
PPA and because I was not around, said Capt. Valenzuela left a message
advising me to see Mr. Leopoldo Bungubung for some important
matters;

11. That upon receipt of the advise (sic) from my office staff, I went to
PPA, with my secretary, Ms. Evalyn Cruz, to see Mr. Leopoldo
Bungubung at his office located at old PNR Bldg., South Harbor, Port
Area, Manila and at the same time personally delivered a sum of money
amounting to P50,000 as earlier requested by him (Bungubung).

12. That during the course of my conversation with Mr. Leopoldo

Bungubung after giving the P50,000, he asked from me a vehicle,
Mitsubishi Pajero (late model) van, to be due and delivered supposedly
to him in the middle part of March 2001 while there is no award of the
winning bidder yet; and that I asked the said Bid Committee Chairman,
Mr. Bungubung to give me a grace period of two (2) months to produce
what he was asking from me. Unfortunately, however, due to the
expensive value of the said Pajero van, I was not able to deliver. Hence,
on March 30, 2001, I was served a Notice of Award of the winning
bidder which is STAR SPECIAL WATCHMAN & DETECTIVE
AGENCY, INC. an agency comparatively smaller than mine;

13. That taking a cue from the Pajero van being asked, I instructed my
men to conduct an investigation and there, they found a late model
Pajero van with Plate No. WLA-674 parked in from of the residence of
Mr. Leopoldo Bungubung and later verified to have been registered and
transferred on 12 March 2001 under the name of Mr. Norman Vincent

Bungubung, son of Chairman Bungubung at #45 Buencamino St., BF

Homes, Paranaque City.[4]

In support of the allegations in his Complaint-Affidavit, Doromal submitted an

affidavit of his secretary Evalyn Cruz (Cruz) and an alleged blue book of
CSEPA. Cruz recounted in her affidavit another incident wherein she personally
handed over the amount of P50,000.00 cash to Bungubung at his office on 16
January
2001. The
CSEPA
blue
book
purportedly
detailed
monthly balato or payola paid to PPA officials from July 2000 to February 2001,
recorded therein as representation expenses. It was allegedly prepared by a certain
Evalyn M. Ebora (Ebora), and approved by Doromal.

Thereafter,
PPA
Resident
Ombudsman
Mabini
released
a
[5]
Memorandum/Investigation Report dated 25 September 2001, recommending the
following:

a. That criminal complaint be filed against Mr. Leopoldo F. Bungubung

for violation of Section 3(b) of R.A. 3019; Section 7(d) of R.A. 6713
and Art. 211 of the RPC for demanding and receiving balato from
COMBAT in the total amount of P320,000 more or less;
b. That likewise, an administrative complaint be filed against Mr.
Leopoldo F. Bungubung for Grave Misconduct and Conduct
Prejudicial to the Best Interest of the Service arising from the above
criminal act;
c. That Mr. Leopoldo F. Bungubung be placed under Preventive
Suspension for a period of six (6) months without pay pursuant to
Section 24 of R.A. 6770.

From the foregoing, the following complaints were filed against Bungubung
before the Ombudsman: (1) an administrative complaint for Grave Misconduct and
Conduct Prejudicial to the Best Interest of the Service, docketed as OMB-ADM-0-

01-0502 (OMB-0-01-0793); and (2) a criminal complaint for violation of Section

3(b) of the Anti-Graft and Corrupt Practices Act, docketed as OMB-0-01-0793.

After the parties submitted the required pleadings, a preliminary conference

was held on 21 February 2002 in OMB-ADM-0-01-0502, the administrative
case. Bungubung manifested therein that he was submitting the case for
resolution. Doromal, however, was still undecided on whether to opt for the
conduct of a formal investigation or to submit the case for resolution at once. In a
Manifestation filed on 25 February 2002, Doromal informed the Ombudsman that
he was opting instead for the conduct of a formal investigation for purposes of
submission of evidence and affidavits of witnesses.[6]
Doromals aforecited manifestation notwithstanding, the Ombudsman, in an Order
dated 6 March 2002, through Graft Investigation Officer II Joselito P. Fangon,
ordered the submission of the case for resolution.

The parties were then required to submit their respective Memoranda.

On 28 November 2002, Graft Investigation Officer II Fangon drafted a

Decision[7] which recommended the dismissal of the administrative case against
Bungubung, without prejudice to its re-filing.
However, Ombudsman Marcelo disapproved Graft Investigation Officer II
Fangons 28 November 2002 Decision, and issued another Order[8] dated 11 January
2005 finding Bungubung liable for grave misconduct (which absorbed the lesser
offense of conduct prejudicial to the best interest of the service) and ordering
Bungubungs dismissal from service, together with the accessory penalties of
cancellation of eligibility, forfeiture of retirement benefits, and respondents
perpetual disqualification from reemployment in government service. The
dispositive part of Ombudsman Marcelos 11 January 2005 Order reads:

WHEREFORE, the 28 November 2002 Decision prepared by the

former Administrative Adjudication Bureau (AAB), this Office,
recommending the dismissal (without prejudice to its re-filing) of the
administrative
complaint
against
[Bungubung]
is
hereby
DISAPPROVED.

Respondent LEOPOLDO F. BUNGUBUNG, Port District

Manager, Manila Port District, Philippine Ports Authority, is hereby
found liable for Grave Misconduct and, as such, is DISMISSED from
the service. The penalty of dismissal shall carry with it the accessory
penalties of cancellation of eligibility, forfeiture of retirement benefits,
and [Bungubungs] perpetual disqualification from reemployment in the
government service.

In the interim, the Ombudsman issued an Order [9] dated 10 September

2003 in OMB-0-01-0793, for the filing of the criminal complaint against
Bungubung, after finding that there was probable cause to indict him for violation
of Section 3(b) of the Anti-Graft and Corrupt Practices Act.[10]
The Ombudsman took into consideration its aforementioned 10 September
2003 Order in OMB-0-01-0793, when it found in OMB-ADM-0-01-0502 that
Bungubung took advantage of his position as Chairman of the PDSBAC of the
PPA, using it as leverage in soliciting cash and a Mitsubishi Pajero van from the
bidders as consideration for the award of the security contract. According to the
Ombudsman, such actuations constitute conduct grossly prejudicial to the best
interest of the service. It rejected Bungubungs denial and instead gave credence to
the attestation of Cruz that she personally delivered the P50,000.00 to Bungubung.

Bungubung filed a Motion for Reconsideration[11] of the 11 January 2005 Order of

the Ombudsman in OMB-ADM-0-01-0502, but it was denied by the Ombudsman
in another Order[12] dated 28 April 2005, to wit:

WHEREFORE, the Motion for Reconsideration dated 21 January

2005 filed by respondent Leopoldo F. Bungubung is DENIED. The
Order dated 11 January 2005 finding him liable for Grave Misconduct
thereby ordering him dismissed from the service, together with its
accessory penalties, is hereby AFFIRMED.

Bungubung then sought recourse to the Court of Appeals via a Petition for Review
under Rule 43 of the 1997 Rules of Civil Procedure, docketed as CA-G.R. SP No.
89689. He asserted therein that the Ombudsman erred in (a) holding that there was
substantial evidence to make him liable for grave misconduct, resulting in his
dismissal from service and imposition upon him of the accessory penalties; and (b)
ordering him dismissed from the service, when the Constitution merely empowered
said office to make a recommendation of dismissal. Pending resolution of CA-G.R.
SP No. 89689 by the Court of Appeals, Bungubung filed therein a Motion for
Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary
Injunction to enjoin the Ombudsman and the PPA General Manager from
implementing the Order dated 11 January 2005 which dismissed him from service.
[13]
The Court of Appeals granted the TRO on 3 June 2005.[14]

In the meantime, Doromal executed an Ex-Parte Manifestation and Motion

to Withdraw Complaint[15] dated 18 August 2005 and an Affidavit of
Desistance[16] dated 23 August 2005, which he filed before the Ombudsman. In
his Ex-Parte Manifestation and Motion to Withdraw Complaint and Affidavit of
Desistance, Doromal expressed his desire to withdraw his Complaint-Affidavit
against Bungubung and desist from the continuance of both OMB-ADM-0-010502 and OMB-0-01-0793. Doromal explicitly admitted in said documents that his
allegations in the administrative and criminal complaints against Bungubung were
all fabricated. He further confessed that Bungubung never demanded or received
any balato from him or his wife in exchange for the award of the PPA security
service contract; nor did Bungubung ask for a Mitsubishi Pajero van from him.

On 30 June 2006, the Court of Appeals issued a Decision in CA-G.R. SP No.

89689 ruling in Bungubungs favor, and reversing and setting aside the Orders
dated 11 January 2005 and 28 April 2005 of the Ombudsman. It further absolved

Bungubung from liability for the charge of grave misconduct, finding no

substantial evidence that Bungubung committed the same.

According to the appellate court:

There is merit in the petition.

Indeed, there is absence of substantial evidence to hold

[Bungubung] liable for grave misconduct.

To begin with, [Doromal] and his witness failed to appear at the

preliminary conference on February 21, 2005 to attest to the truth of the
contents of their affidavits. For such failure, their affidavits are
inadmissible as they are hearsay evidence.

xxxx

By not appearing at the preliminary conference and affirming their

affidavits, We can not readily conclude that the contents thereof are true.
It is highly probable that [Doromal] is only sour graping for losing the
PPA 2001 service contract. As early as January 18, 2001, the bids for the
2001 service contract were already opened and authenticated. Thus, it
can not be said that the bids were manipulated or rigged to favour
somebody.

While rules of procedure do not strictly apply to administrative

cases as long as defendants right to due process is not violated, its liberal
application in administrative cases does not allow admission of hearsay

evidence, i.e. affidavits not identified by affiants, as this would violate

the constitutional right of petitioner to due process and his substantive
right not to be adjudged guilty on the basis of hearsay evidence.

xxxx

In the instant case, [Bungubung], in denying the assertion of

Evalyn Cruz in her affidavit that she gave him P50,000.00, and in
describing her claim as a self-serving fabrication, is positive evidence
that what she claimed did not occur. This holds true with respect to
[Bungubungs] positive denial of [Doromals] assertion that he gave
[Bungubung] another P50,000.00 in late February 2001 and that he also
demanded a late model Pajero from [Doromal].

[The Ombudsman] accepted as credible [Doromals] claim that

[Bungubung] asked for a late model Pajero in exchange for the 2001
security service contract. x x x

The following must, however, be considered:

1. The rule on positive and negative testimonies do not apply where

a person who is in a position to know if a fact occurred denies that
it did. This is positive denial which has the same weight as a
contrary assertion.

2. The finding that the van was acquired after the failed solicitation
and before the award readily assumes as true private respondents
bare assertion that petitioner asked him for a van.

Allegedly taking cue from his failure to deliver a Pajero van,

[Doromal] had [Bungubungs] home cased and saw a Pajero in front of
his house. If this is the case, why was this not mentioned by [Doromal]
when he filed a civil case to stop the award of the security service
contract on ground of irregularities in the bidding? Neither was this
matter brought up during the hearing on the application for a TRO.
[Doromal] only brought up this matter about a Pajero in his affidavitcomplaint of September 7, 2001 after hearing that [Bungubungs] son has
a newly-bought Pajero.

1. [Bungubung] presented proof that on May 4, 2001, [Doromal] filed a

false hit-and-run report involving the Pajero with plate WLA 674 of
[Bungubungs] son. This shows the extent that [Doromal] would go
just to spite [Bungubung].
2. The President of Star Security Agency declared under oath that he
did not give [Bungubung] any Pajero;
3. The Pajero was acquired by [Bungubungs] son from a certain
Teresito Uy as evidenced by a notarized deed of sale;
4. It is unfair to assume that [Bungubungs] son could not afford the
price of a used Pajero. He put up a glass and aluminum business after
getting married.

From the foregoing, [the Ombudsman] should have dismissed the

complaint for lack of substantial evidence to support it.

The fallo of the Court of Appeals 30 June 2006 Decision reads:

WHEREFORE, the petition for review is GRANTED and GIVEN DUE

COURSE. The Orders[17] of the Ombudsman dated January 11, 200[5]

and April 28, 200[5] are reversed and set aside and a new one issued
absolving petitioner from liability for the charge of grave misconduct. [18]

The Ombudsman filed a Motion for Reconsideration of the afore-quoted

Decision, which the appellate court denied in its Resolution dated 26 October
2006 for lack of merit, thus:

Notably, the issues raised in the motion have already been

thoroughly threshed out and passed upon in the assailed decision. No
novel or new matters were introduced therein.

The disquisition made by the Supreme Court in Dela Cruz vs.

Department of Education, Culture and Sports-Cordillera Administrative
Region is most helpful, We have long held that affidavits are deemed
hearsay evidence because the adverse party is deprived of the
opportunity to cross-examine the affiants. Hence, affidavits are generally
deemed inadmissible or rejected outright unless the affiants themselves
are placed on the witness stand to testify thereon.

WHEREFORE, in view of the foregoing, the instant Motion for

Reconsideration is DENIED for lack of merit. [19]

Consequently, the Ombudsman filed this Petition for Review on Certiorari under
Rule 45 of the Revised Rules of Court based on the following grounds:

I.

THE RELIANCE BY THE OMBUDSMAN ON THE AFFIDAVITS

OF ROBERTO DOROMAL AND HIS WITNESS IN
DETERMINING
[BUNGUBUNG]S
ADMINISTRATIVE
LIABILITY WAS PROPER. IT DID NOT DEPRIVE
[BUNGUBUNG] OF DUE PROCESS;

II.
THE FINDING OF ADMINISTRATIVE OFFENSE FOR GRAVE
MISCONDUCT AGAINST [BUNGUBUNG] IS SUPPORTED BY
SUBSTANTIAL EVIDENCE;

III.
AS CONSEQUENTLY HELD BY THE SUPREME COURT, THE
FINDINGS OF THE OMBUDSMAN DESERVE GREAT WEIGHT,
AND MUST BE ACCORDED FULL RESPECT AND CREDIT.

The Ombudsman prays that this Court render a Decision nullifying and setting
aside the Decision dated 30 June 2006 and Resolution dated 26 October 2006 of
the Court of Appeals in CA-G.R. SP No. 89689, and affirming the Ombudsmans
Orders dated 11 January 2005 and 28 April 2005 in OMB-ADM-0-01-0502 which
found Bungubung guilty of Grave Misconduct and dismissing him from service
with all the accessory penalties incident thereto.

Bungubung counters that the Court of Appeals correctly held that there was no
substantial evidence to hold him liable for grave misconduct; and that the reliance
by the Ombudsman on the affidavits of Doromal and Cruz in determining his
administrative liability, despite the fact that the contents thereof were not
personally attested to by the affiants before the Ombudsman, was a clear violation
of his right to due process. He also avers that the Court of Appeals was correct in

giving credence to the Ex-ParteManifestation and Motion to Withdraw the

Complaint and Affidavit of Desistance, filed by Doromal with the Ombudsman in
August 2005, as proof of Bungubungs lack of culpability.

The present Petition must fail.

Before proceeding to the merits of the instant Petition, this Court deems it
necessary to first address the allegation of Bungubung that he was denied due
process by the Ombudsman. The fact that no formal hearing took place is not
sufficient ground to say that due process was not afforded Bungubung. It is wellsettled that in administrative proceedings, including those before the Ombudsman,
cases may be submitted for resolution on the basis of affidavits and pleadings. The
standard of due process that must be met in administrative tribunals allows a
certain degree of latitude as long as fairness is not ignored. It is, therefore, not
legally objectionable for being violative of due process for an administrative
agency to resolve a case based solely on position papers, affidavits or
documentary evidence submitted by the parties as affidavits of witnesses may
take the place of their direct testimonies.[20] Undoubtedly, due process in
administrative proceedings is an opportunity to explain one's side or an opportunity
to seek reconsideration of the action or ruling complained of,[21] which requirement
was afforded Bungubung.[22]
In Manggagawa ng Komunikasyon sa Pilipinas v. National Labor Relations
Commission,[23] this Court held that:

[A]ctual adversarial proceeding becomes necessary only for clarification

or when there is a need to propound searching questions to unclear
witnesses. This is a procedural right which the employee must, however,
ask for it is not an inherent right, and summary proceedings may be
conducted. This is to correct the common but mistaken perception that
procedural due process entails lengthy oral arguments. Hearings in
administrative proceedings and before quasi-judicial agencies are neither
oratorical contests nor debating skirmishes where cross examination
skills are displayed. Non-verbal devices such as written explanations,
affidavits, positions papers or other pleadings can establish just as clearly

and concisely aggrieved parties predicament or defense. What is

essential is ample opportunity to be heard, meaning, every kind of
assistance that management must accord the employee to prepare
adequately for his defense.

After the filing of the Complaint, Bungubung was allowed by the

Ombudsman to submit the following: (a) a counter-affidavit refuting the charges
against him; (b) a rejoinder-affidavit; and (c) a Motion for Reconsideration of
the 11 January 2005 Order of the Ombudsman. Moreover, Bungubung had the
option to subject the case to a formal investigation, but his Manifestation dated 21
February 2002 before the Ombudsman was evidence that he did not choose to do
so and, instead, agreed to submit the case for resolution on the basis of the
affidavits on record. These facts establish that Bungubung was not deprived of his
right to due process, having ample opportunity to present his side before the
Ombudsman. In fact, it was only later on in a Manifestation filed on 25 February
2002 that Doromal changed his mind and informed the Ombudsman that he was
opting instead for the conduct of a formal investigation.

That point having been settled, this Court moves on to determine the merits
of the Petition at bar.

The Petition primarily involves questions of fact, pitting against each other
the findings of fact of the Court of Appeals and those of the Ombudsman, both of
which depended on the probative weight to be given to the affidavits of Doromal,
Cruz, and the alleged CSEPA blue book.
We stress the procedural tenet that a petition for review on certiorari filed
with this Court under Rule 45 of the Revised Rules of Court shall raise only
questions of law.[24] A question of law has been defined as one that does not call for
any examination of the probative value of the evidence presented by the parties;
[25]
a question of fact arises when the doubt or difference pertains to the truth or
falsehood of alleged facts or when the query necessarily solicits calibration of the
whole evidence considering mostly the credibility of witnesses, existence and
relevancy of specific surrounding circumstances, their relation to one another and

to the whole and probabilities of the situation. [26] We have consistently held that in
a petition for review on certiorari, this Court does not sit as an arbiter of facts for it
is not the function of the Supreme Court to analyze or weigh all over again the
evidence already considered in the proceedings below.[27] Such factual findings can
be questioned only if, among other exceptions,[28] the findings of fact are
conflicting and the findings of the Court of Appeals are contrary to those of the
lower court and/or administrative agency, which exceptional circumstances are
present herein, thus, justifying the review by this Court of the factual findings of
the Ombudsman and the Court of Appeals.

In Montemayor v. Bundalian,[29] this Court laid down the following guidelines for
the judicial review of decisions rendered by administrative agencies in the exercise
of their quasi-judicial power:

First, the burden is on the complainant to prove by substantial evidence

the allegations in his complaint. Substantial evidence is more than a
mere scintilla of evidence. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion, even
if other minds equally reasonable might conceivably opine otherwise.
Second, in reviewing administrative decisions of the executive branch of
the government, the findings of facts made therein are to be respected so
long as they are supported by substantial evidence. Hence, it is not for
the reviewing court to weigh the conflicting evidence, determine the
credibility of witnesses, or otherwise substitute its judgment for that of
the administrative agency with respect to the sufficiency of
evidence. Third, administrative decisions in matters within the executive
jurisdiction can only be set aside on proof of gross abuse of discretion,
fraud, or error of law. These principles negate the power of the reviewing
court to re-examine the sufficiency of the evidence in an administrative
case as if originally instituted therein, and do not authorize the court to
receive additional evidence that was not submitted to the administrative
agency concerned.

As stated above, the fundamental rule in administrative proceedings is that the

complainant has the burden of proving, by substantial evidence, the allegations in

his complaint.Section 27 of the Ombudsman Act is unequivocal: Findings of fact

by the Office of the Ombudsman when supported by substantial evidence are
conclusive. Conversely, therefore, when the findings of fact by the Ombudsman
are not adequately supported by substantial evidence, they shall not be binding
upon the courts. Such is the case in the present Petition.

Substantial evidence, which is more than a mere scintilla but is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion,
would suffice to hold one administratively liable. [30] The standard of substantial
evidence is satisfied when there is reasonable ground to believe that respondent is
responsible for the misconduct complained of,[31] even if such evidence might not
be overwhelming or even preponderant.[32] While substantial evidence does not
necessarily import preponderance of evidence as is required in an ordinary civil
case,[33] or evidence beyond reasonable doubt as is required in criminal cases, [34] it
should be enough for a reasonable mind to support a conclusion. There is none
here.

Bungubung is being charged with the administrative offense of Grave

Misconduct, which has been authoritatively defined in Amosco v. Judge
Magro[35] as:

Misconduct in office has a definite and well-understood legal

meaning. By uniform legal definition, it is a misconduct such as affects
his performance of his duties as an officer and not such only as affects
his character as a private individual. In such cases, it has been said at all
times, it is necessary to separate the character of the man from the
character of the officer x x x. It is settled that misconduct, misfeasance,
or malfeasance warranting removal from office of an officer, must have
direct relation to and be connected with the performance of official
duties amounting either to maladministration or willful, intentional
neglect and failure to discharge the duties of the office. x x x.

In In re: Impeachment of Horilleno,[36] this Court authoritatively defined

serious misconduct --

[S]ufficient cause must exist in the judgment of the Supreme Court

involving serious misconduct. The adjective is serious; that is, important,
weighty, momentous, and not trifling. The noun is misconduct; that is, a
transgression of some established and definite rule of action, more
particularly, unlawful behavior or gross negligence by the public
officer. x x x.

Being guided accordingly by the aforementioned evidentiary rules and

jurisprudence, this Court finds that the evidence on record in the present case does
not constitute substantial evidence of Bungubungs administrative culpability for
grave misconduct.

Within the field of administrative law, while strict rules of evidence are not
applicable to quasi-judicial proceedings, nevertheless, in adducing evidence
constitutive of substantial evidence, the basic rule that mere allegation is not
evidence cannot be disregarded.[37]

In his Affidavit-Complaint, Doromal accused Bungubung of soliciting and

receiving P100,000.00 from him and a Mitsubishi Pajero van from another bidder
in exchange for the award of the security services contract of the PPA. Doromal
also accused Bungubung and other PPA employees of demanding and
receiving balato in consideration of the award of the PPA Security Service
Contract.

In addition to his Complaint-Affidavit, Doromal submitted a ReplyAffidavit, as well as the following supporting documents:

(a)
(b)

Affidavit of Evalyn Cruz, his secretary;

CSEPA blue book detailing the monthly balato or payola paid to
PPA officials and employees, referred to therein as representation
expenses.

On the other hand, Bungubung filed his Counter-Affidavit and RejoinderAffidavit. In his defense, Bungubung further submitted the following evidence:

(a)

Affidavit of Celso A. Fernandez, President and Chairman of Star

Special Watchman and Detective Agency, Inc., the winning
bidder, who denied giving any money or a Pajero to Bungubung;

(b)

Affidavit of a certain Rufino Valenzuela, who denied giving

instructions for Doromal to go to Bungubungs office;

(c)

A copy of the petition in Civil Case No. 01-100678, entitled

Roberto C. Doromal, etc. v. Philippine Ports Authority, et al.,
questioning the legality of the case filed by Doromal against
Bungubung before the RTC to show that Doromal never
mentioned therein that Bungubung requested for a Pajero from
him;

(d)

A copy of the Deed of Sale of the Pajero executed by Teresito Uy

in favor of Norman Vincent Bungubung, as proof that the said
vehicle was bought and is now owned by Bungubungs son;

(e)

A copy of the Traffic Incident Report of the Central Police

Traffic Enforcement Office to evidence the fabricated hit and run
charge made by an employee of CSEPA against the Pajero owned
by Bungubungs son; and

(f)

PSBAC Resolutions establishing that the award of the PPA

Security Contracts was made by public bidding.

The Ombudsman chose to give more credence to Doromals allegations and

evidence when it found that Bungubung took advantage of his position as
Chairman of the PSBAC and used it as leverage in soliciting cash and a Mitsubishi
Pajero van from the bidders as a consideration for the award of the PPA security
service contract. However,Doromals evidence is hardly substantive.

First, Doromals allegation that Bungubung acquired the Mitsubishi Pajero

van from another bidder after failing to successfully solicit the same from him is
highly suspect, since Doromal only narrated the alleged solicitation in his
Affidavit-Complaint against Bungubung filed with the Ombudsman on 7
September 2001. He failed to mention such a significant circumstance in Civil
Case No. 01100678, Roberto C. Doromal v. Philippine Ports Authority, before the
RTC or in his petition for TRO in the same case, both of which were filed ahead of
his Affidavit-Complaint before the Ombudsman.

Second, little weight should be given to the CSEPA blue book allegedly
detailing the monthly payola or balato paid to PPA officials and employees from
July 2000 to February 2001, recorded therein as representation expenses.
According to the CSEPA blue book, the following PPA key officials received
monthly representation allowances:

NAME

POSITION

PERIOD

TOTAL AMOUNT

Mr. Cecilio

AGM Operations

July 2000-Feb 2001

P200,000.00

Leopoldo Bungubung

Port District Manager

July 2000-Feb 2001

P300,000.00

Ted Alcalde

District Manager

July 2000-Feb 2001

P144,000.00

Capt. Gamis

Chief of Port Police

July 2000-Feb 2001

P144,000.00

North Harbor

Felix Barcala

Chief of Port Police

July 2000-Feb 2001

P35,000.00

July 2000- Feb 2001

P144,000.00

South Harbor

Alex Cruz

The CSEPA blue book, however, is evidently self-serving. The entries

therein were purportedly made by a certain Ebora, who was never presented to
personally identify the entries she made or confirm the same. The only other
person involved in the preparation of the blue book was Doromal who supposedly
approved the entries therein. The blue book is not audited, nor is it subject to
review by an independent party. The blue book then can easily be
manufactured. Considering the seriousness of the charges which may arise against
the public officers named therein, the entries in the blue book must not be accepted
at face value when the entries therein are uncorroborated by any other evidence.
Third, while the Ombudsman gave much weight and credit to Doromals
evidence, it lightly brushed aside that submitted by Bungubung. Among
Bungubungs evidence which the Ombudsman failed to consider was a copy of the
Traffic Accident Incident Report prepared by the Central Police Traffic
Enforcement Office, stating that on 4 May 2001, Doromal filed a false report of a
hit-and-run incident which supposedly occurred on 1 May 2001 involving the
Mitsubishi Pajero van of Bungubungs son. The report was made by the police
investigator in his official capacity; thus, it enjoys the presumption of regularity
and is a prima facie evidence of the facts therein stated. The filing of the false
report establishes ill motive on the part of Doromal specifically directed against
Bungubung.

Fourth, the main defense put up by Bungubung is complete denial, a defense

which is said to be the weakest, seldom believed or given weight, as it is easy to
fabricate. Nonetheless, Bungubungs denial of -- (a) Cruzs allegation in her

affidavit that she personally gave Bungubung P50,000.00 on 16 January 2001; (b)
Doromals assertion in his affidavit that he gave Bungubung another P50,000.00 in
late February 2001; and (c) Doromals assertion that Bungubung demanded from
him a late model Mitsubishi Pajero van -- is given weight in this instance.

In the absence of corroborative evidence, the Court would not be prepared to

accept the usual lame defense of denial over the straightforward and positive
declaration of a witness since denials constitute self-serving negative evidence
which cannot be accorded greater evidentiary weight than the declaration of
credible witnesses who testify on affirmative matters. Thus, in the case of
contradictory declarations and statements, greater weight is generally given to
positive testimonies than to mere denials.[38]

In this instance, however, Bungubungs denial of the allegations against him

are supported by his own controverting evidence. In contrast, Doromals
Complaint-Affidavit and Cruzs Affidavit support only each other.

Finally, this Court cannot ignore Doromals Ex-Parte Manifestation and

Motion to Withdraw Complaint dated 18 August 2005 and Affidavit of Desistance
dated 23 August 2005, which he filed with the Ombudsman. In both
documents, Doromal expressed his desire to withdraw his Complaint-Affidavit
filed with the Ombudsman and desist from the continuance of the criminal and
administrative complaints against Bungubung. Doromal explicitly admitted therein
that he merely fabricated all his allegations against Bungubung.

While this Court looks with disfavor on affidavits of desistance, still, its
effect on the instant case cannot be ignored. Doromals Affidavit of Desistance
includes an explicit admission that he fabricated the charges against Bungubung.
Therefore, Doromals Affidavit of Desistance is an express repudiation of the
material points alleged in his Complaint-Affidavit, and not a mere expression of
his lack of interest to pursue his complaints against Bungubung. Since Doromal
willfully and knowingly executed his Affidavit of Desistance, there being no

showing that he was made to do so fraudulently or under duress, then it may be

admitted and considered as evidence which considerably puts into question the
probative value of the Affidavit-Complaint he executed earlier and he now
repudiates.

In Gaviola v. Salcedo,[39] which involved an administrative case for

suspension or disbarment against a lawyer, this Court gave probative value to the
Affidavit of Desistance of the complainant, pronouncing that while the filing of an
Affidavit of Desistance by the complainant for lack of interest does not ipso
facto result in the termination of the administrative case, it was constrained to
dismiss the charges since such charges cannot be proven without the evidence of
the complainant and her witnesses. Such is the case at bar. Essentially, the
administrative case against Bungubung was based on the allegations made by
Doromal in his Affidavit-Complaint, without which, the case against Bungubung
collapses.

The Court of Appeals therefore took proper notice of Doromals ExParte Motion to Withdraw the Affidavit-Complaint and Affidavit of
Desistance since they cast a different light on the evidence previously considered
by the Ombudsman.

After evaluating the totality of evidence on record, this Court reaches the
inescapable conclusion that complainant Doromal failed to present substantial
evidence that Bungubung is administratively liable for grave misconduct.

As this Court declared in Ang Tibay v. Court of Industrial Relations,[40] the

assurance of a desirable flexibility in administrative procedure does not go so far as
to justify orders without a basis in evidence having rational probative force.

WHEREFORE,
premises
considered,
the
Petition
for
Review
on Certiorari is DENIED. The Decision dated 30 June 2006 and Order dated 26
October 2006 of the Court of Appeals in CA-G.R. SP No. 89689 are AFFIRMED.

No Costs.

SO ORDERED.