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EN BANC

RAFAEL M. CRISOL, JR., G.R. No. 235764

Petitioner,
Present:

GESMUNDO, CJ,
PERLAS-BERNABE,
LEONEN,
CAGUIOA,
HERNANDO,
CARANDANG,
- versus - LAZARO-JAVIER,
INTING,
ZALAMEDA,
LOPEZ, M.,
GAERLAN,
ROSARIO, and
LOPEZ, J., JJ

Promulgated:
COMMISSION ON AUDIT,
Respondent. September 14, 2021
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - -

DECISION

ROSARIO, J.:

In order for a superior public officer to be made civilly liable for acts
done in the performance of his official duties, there must be a clear showing
of bad faith, malice, or gross negligence. For negligence to be considered
gross, there must be an act or omission to act in a situation where there is a
duty to act, not inadvertently but willfully and intentionally with a conscious
 Decision -2- G.R. No. 235764

indifference to consequences in so far as other persons or the government may

be affected.

Petitioner challenges on certiorari, under Rule 64 in relation to Rule 65

of the Rules of Court, the Decision dated November 9, 2016 and Resolution
dated September 7, 2017 of respondent Commission on Audit (COA) which
disapproved petitioner's exclusion from liability on account of his
subordinate's failure to remit collections amounting to Php425,555.53.

The antecedent facts are as follows:

On September 17, 2010, District Collector Atty. Rogel Gatchalian

designated Amel Tabije (Tabije) as Special Collection Officer (SCO) at the
Collection Division, Customs District II-A, Bureau of Custo!lls (BOC).
However, in December 2010, Tabije no longer reported for work, thus
prompting Atty. Gatchalian to send him a letter directing him to report.to. the
Chief of the Administrative Division or of the Collection Division. · · (._, ·

On January 27, 2011, petitioner reported to Atty. Gatchalian that'he

conducted an initial audit on the collections and deposits of Tabije and
discovered that the latter failed to deposit collections in the amount of
Php425,555.52 and did not tum over the auction fund passbook to their
office. 1

On February 28, 2011, petitioner sent Tabije a letter informing him of

said irregularities and requiring him to settle the same but Tabije failed to
respond. On March 28, 2011, Atty. Gatchalian instructed petitioner to refer
the matter to the Audit Team Leader (ATL), COA, BOC, Port Area, Manila
for audit.

During the investigation by Special Investigator Jaime Regala, Tabije

failed to appear and participate in the proceedings despite notice. Regala later
recommended that he be charged with Dishonesty, Unauthorized Absenc~s,
Inefficiency and Gross Neglect of Duty, which was approved by the Revenue
Collection Monitoring Group/Legal Service of the BOC. 2 \··· ·
·, . ,.·,,; · :(. 1: ~·1: ~.

On post-audit of the collections/receipts of Tabije for the period' of

September to November 20 l 0, the ATL and the Supervising Auditor issued

Rollo, p. 109.
2
Id. at 110-115.
 Decision -3- G.R. No: 235764

Notice of Charge (NC) No. 2011-001-101(10), dated October 12, 2011, insthe
amount of Php425,555.53, representing Tabije's unremitted collections, and
determined that the latter, as SCO, Atty. Gatchalian, as head of office; ,and
petitioner, as Chief of the Cash Division, were liable therefor. 3

On appeal, the director of the COA National Government Sector (NGS)

Cluster A granted Atty. Gatchalian and petitioner's request for exclusion from
liability in Decision No. 2012-006 dated June 8, 2012 on the ground that they
were included in the NC merely for being the head of the Port of Manila, BOC
and Chief of Cash Collection Division, respectively, which cannot in any
manner be deemed as badges of participation and/or taking part in the
unremitted collection. 4

However, upon automatic review of said decision, the COA, in

Decision No. 2016-331 dated November 9, 2016, disapproved the same only
insofar as it excluded petitioner from liability, and directed the COA Legal
Services Sector to forward the case to the Office of the Ombudsman for
investigation and filing of appropriate charges, if warranted, against the
persons liable. 5

His subsequent motion for reconsideration having been denied by the

COA in its Resolution6 dated September 7, 201 7, petitioner filed tne
'present
petition for certiorari, arguing that the COA committed grave :Jbuse]'of
discretion amounting to lack or excess of jurisdiction when it issued said
decision and resolution disapproving his exclusion from liability.

Subsequently, the COA issued a Notice of Finality ofDecisiori7 (NFD)

dated December 5, 2018 pursuant to Section 9 of Rule X of the 2009 Rev1sed
Rules of Procedure of the COA ("COA Rules"), as amended by COA
Resolution No. 2011-006, prompting petitioner to move for the quashal and/or
recall thereof The COA, through its letter dated January 18, 2019, informed
petitioner that under its amended rules, the finality of its issuance may only
be stayed by a direct order of this Court.

During the pendency of the present petition, petitioner filed a

Manifestation8 dated February 14, 2019 stating, among others, that Tabije had
settled the subject unremitted collection in the amount of Php425,555.53 as
evidenced by Official Receipt No. 9750686 9 and Notice of Settlement of
Suspension/Disallowance/Charge 10 (NSSDC) dated February 7, 2019.
3
Id. at 53-54.
4
Id. at 127-129.
5
Id. at 131-136.
6
Id. at 106.
7
Id. at 191-192.
8
Id. at 187-190.
9 Id. at 203.
10
Id. at 201-202.
 Decision -4- G.R. No. 235764

Nonetheless, pet1t10ner prays for the grant of the petition on the merits
considering that the COA's finding relative to petitioner's liability remain? a
justiciable controversy that this Court may pass upon.

II

This Court generally refrains from entertaining petitions under Rule 64

questioning the dismissal of an appeal by the COA on account of failu;e to
file said appeal within the reglementary period, given the well-settled rule that
courts are bereft ofjurisdiction to review decisions that have become final and
executory and that perfection of an appeal in the manner and within the period
set by law is not only mandatory but jurisdictional. However, jurisprudence
recognizes several exceptions to the rule on immutability of final judgments:
(1) the correction of clerical errors, (2) nunc pro tune entries which cause no
prejudice to any party, (3) void judgments, and (4) whenever circumstances
transpire after the finality of the decision rendering its execution unjust and
inequitable. 11

We have also allowed the relaxation of this rigid rule in order to serve
substantial justice in considering ( 1) matters of life, liberty, honor or property;
(2) the existence of special or compelling circumstances; (3) the merits of the
case; (4) a cause not entirely attributable to the fault or negligence ofthe·ptltty
favored by the suspension of the rules; (5) a lack of any shov1ihg1.tli~t1the
review sought is merely frivolous and dilatory; or ( 6) the other party will-not
be unjustly prejudiced thereby. 12 Verily, when extraordinary circumstances
exist, We are empowered to set aside technicalities in the exercise of our
equity jurisdiction in order to fully serve the demands of substantial justice. 13

As applied, we find that the full settlement of the unremitted collection

during the pendency of the present petition, and more importantly, the merits
of the case as will be hereafter discussed, merit a relaxation of technical rules
in the exercise of Our equity jurisdiction.

Section 13 of the 2009 Rules and Regulations on the Settlement of

Accounts (COA Circular No. 2009-006) provides:

SECTION 13. NOTICE OF SETTLEMENT OF SUSPENSION/

DISALLOWAN CE/CHARGE (NSSDC)

13.1 The Auditor shall issue the NSSDC -Form 5 -whenever a

suspension/disallowance or charge is settled.

• •
'
-.;,
l
'!

II
FGU Insurance Corporation v. Regional Trial Court ofMakati City, Branch 66,. 65,9 P:W'. 117,?, J23
(2011), citing Villa v. Government Service Insurance System, 619 Phil. 740-756 (2909f '. ', ':''.,
12 Estalilla v. Commission on Audit, G.R. No. 217448, September 10, 2019, citing'Ba'rnes v:. ,Jtidge
Padilla, 482 Phil. 903,915 (2004). ,', i,: c
13 Bugna, Jr. v. Commission on Audit, UDK 16666, January 19, 2021.
· . ·:- ". t: ·I.'.
 Decision -5- G.R. No. 235764

xxxx

13.1.2 A disallowance or charge shall be settled -.~y

payment of the amount disallowed or by such bthei;
applicable modes of extinguishment of obligation
as provided by law. x x x.

In relation thereto, Article 1217 of the Civil Code provides that

payment "made by one of the solidary debtors extinguishes the obligation."

While the payment by Tabije of the amount of Php425,555.53

extinguished his civil liability, the question remains as to whether petitioner
could be held solidarily liable for said amount in the first place.

Despite the above supervening event, the case has not yet been rendered
moot and academic but continues to present a justiciable controversy which
this Court may pass upon.

In Penafrancia Sugar Mill, Inc. v. Sugar Regulatory Administration, 14

We held:

A case or issue is considered moot and academic when it ceases to

present a justiciable controversy by virtue of supervening events, so that an
adjudication of the case or a declaration on the issue would be . of ~◊ .
practical value or use. In such instance, there is no actual substantial }:-eiief
which a petitioner would be entitled to, and which would be negated by the
dismissal of the petition. Courts generally decline jurisdiction o~er· such ·
case or dismiss it on the ground of mootness. This is because the judgment
will not serve any useful purpose or have any practical legal effect because,
in the nature of things, it cannot be enforced.

However, in Ilusorio v. Baguio Country Club Corp., et al., 15 We ruled

that the mootness of one of the issues in the case does not render· it
automatically dismissed if there are other issues raised that need to ·be
resolved.

Here, aside from disapproving the exclusion of petitioner from liability

under the NC, the COA, in the dispositive portion of the assailed decision,
likewise directed its Legal Services Sector to forward the case to the Office of
the Ombudsman for investigation and filing of appropriate charges, if
warranted, against petitioner and Tabije. It ratiocinated in this wise:

14 728 Phil. 535, 540 (2014), citing Philippine Savings Bank v. Senate ImpeachmentCour.t, 699 Phil.
34-37(2012), citing Sales v. Commission on Elections, 559 Phil. 593, 596-597 (20Q7}{;,,
15 738 Phil. 135, 142 (2014). ;
 Decision -6- G.R. No. 235764

Sections 16.1 and 16.2 of the [2009 Rules and Rules and Regulations
on the Settlement of Accounts (RRSA)] 16 provide that the liability of public
officers and other persons for audit charges shall be determined on the basis
of the duties and responsibilities or obligations of the officers/employees
concerned and that said liability shall be measured by the individual
participation and involvement of public officers whose duties require;
appraisal/assessment/collection of government revenues and receipts 1nthe .
charged transaction.

Mr. Crisol, Jr., as the Chief of Cash Division, has direct supervision·
over the transactions of Mr. Tabije. Knowing that Mr. Tabije was new to
his assignment as SCO, Mr. Crisol, Jr. should have monitored Mr. Tabije's
transactions to ensure that they conform with the relevant rules

xxxx
In the case of Mr. Tabije's collections, the same were not deposited
within the prescribed period, contrary to the above regulation. Moreover,
Mr. Tabije did not prepare and submit the required monthly report of
collections and deposits for the months of September to November 2010.
Had the foregoing been monitored Mr. Crisol, Jr., and had he required Mr.
Tabije to comply with the rules, the non-remittance of the amount could
have been avoided.

The foregoing shows that Mr. Crisol, Jr. was negligent and failed to
exercise the diligence of a good father of a family in supervising Mr. Tabije.

Hence, he is jointly and solidarily liable with Mr. Tabije. Since Mr.
Tabije had absconded, Mr. Crisol, Jr. is directly liable in full to the
government for the amount of P425,555.53

xxxx

In view of violation of laws and regulations, specifically Section21·

of the Manual on the NGAS, Volume I, and Section 69 of PD 1445 which
may constitute acts defined under Article 217 of the Revised Penal' Code,
the case shall be referred to the Office of the Ombudsman for investigation
and filing of appropriate charges, if warranted, against the persons liable for
the transaction. 17

16 Section 16.1 The Liability of public officers and other persons for audit disallowances/charges shall
be determined on the basis of (a) the nature of the disallowance/charge; (b) the duties and
responsibilities or obligations of officers/employees concerned; (e) the extent of their participation
in the disallowed/charged transaction; and (d) the amount of damage or loss to the government, thus:

xxxx

16.1.4 Public officers and other persons who confederated or conspired in a transaction
which is disadvantageous or prejudicial to the government shall be held liable jointly and
severally with those who benefited therefrom.

xxxx
Section 16.2 The liability for audit charges shall be measured by the individual participation and
involvement of public officers whose duties require appraisal/assessment/collection of government
revenues and receipts in the charged transaction.
17
Rollo, pp. 133-135.
 Decision -7- G.R. No. 235764

On the other hand, the COA agreed with the NGS Cluster A that Atty.
Gatchalian was properly excluded from liability under the NC because of the
absence of a clear showing of bad faith, malice or gross negligence on his part.
It relied on Section 38, Chapter 9, Book I of the Administrative Code of 1987,
which provides:

Section 38. Liability of Superior Officers. - (1) A public officer

shall not be civilly liable for acts done in the performance of his official
duties, unless there is a clear showing of bad faith, malice or: .gross
negligence.

xxxx

(3) A head of a department or a superior officer shall not be civilly

liable for the wrongful acts, omissions of duty, negligence, or misfeasance
of his subordinates, unless he has actually authorized by written order the
specific act or misconduct complained of.

The civil liability under the above provision of the Administrative Code
arises only upon a showing that the approving or certifying officers performed
their official duties with bad faith, malice or gross negligence. 18 Interestingly,
while the COA found that there was no clear showing of bad faith, malice or
gross negligence on the part of Atty. Gatchalian, its decision was also bereft
of any finding of bad faith, malice or gross negligence on the part of petitioner.

Gross negligence is defined as negligence characterized by the want qf

even slight care, acting or omitting to act in a situation where there is a duty
to act, not inadvertently but willfully and intentionally with a conscious
indifference to consequences in so far as other persons may be affected. It is
the omission of that care which even inattentive and thoughtless''mert never
fail to take on their own property. 19 In cases involving public offi6ials, gross
negligence occurs when a breach of duty is flagrant and palpable'. 20 ' Mere
allegation of gross negligence does not suffice. The fact of gross negligence
must be proven and supported by evidence. 21

In the case at bench, while the COA found petitioner to be negligent, it

did not characterize the same as gross. It merely concluded that Tabije's
failure to remit could have been avoided had petitioner monitored the former' s
transactions and reminded him to comply with the relevant rules and
regulations.

Gross negligence cannot be automatically inferred from mere

speculation that a subordinate's failure to remit collections resulted from his
18 Madera v. Commission on Audit, G.R. No. 244128, September 08, 2020.
19 Sabio v. Sandiganbayan, G.R. No. 233853-54, July 15, 2019, 909 SCRA 46, 58.
20
Office ofthe Ombudsman v. De Leon, 705 Phil. 26, 37-38 (2013).
21
Philippine Gaming and Amusement Corporation (PAGCOR) v. Court ofAppeals, G.R. No. 230084,
August 20, 2018, 878 SCRA 142, 151, citing Baclaran Marketing Corp. v. Nieva, 809 Phil. 92-106
(2017).

... ~-; •,/t''.:

 Decision -8- G.R. No. 235764

superior's failure to monitor his transactions and remind him to comply with
the relevant rules and regulations. To support a finding of gross negligence,
there has to be proof of the omission of an act in a situation where there is a
duty to act, not inadvertently but willfully and intentionally with a conscious
indifference to consequences in so far as other persons may be affected. 22

To say that failure to remit could have been avoided had petitioner
required and reminded Tabije to comply with the pertinent rul~s and
regulations is not only speculative but absurd since nothing less thah \
compliance with the pertinent laws, rules and regulations is expected· of all
public officers, regardless of whether they are µew to their position arid
regardless of any directive or reminder from their superior. In fact, even:1::f
petitioner reminded Tabije, there would still be no assurance that the latter
would comply. In any case, even assuming that there was a duty on the part
of petitioner to remind his subordinate, the failure to remind certainly does
not rise to the level of gross negligence.

A perusal of petitioner's BOC-PES Individual Commitment Record as

Chief of the Cash Collection Division of the Port of Manila reveals the
following duties and responsibilities of petitioner:

Responsibility Area

I. Prepares & signs daily & monthly collection report, summary of

statistical report;
2. Signs withdrawal permit on warehousing entries;
3. Signs Certificate of Payment of duties & taxes, verified paid &
Certificate of Balance on import entry declaration;
4. Reviews & signs on matters pertaining to tax refund on over-payment
of import duties and unutilized advance deposits; ·
5. Prepares & transmits demand letters to importers, brokers for all ,
receivables including additional duties & taxes, fines additional duti_e~:'.
and taxes, fines & penalties due to Bureau of Customs per VCRq. . . . :1. ,
resolution; . . .
6. Validate/Encode payment of duties & taxes on all imported 111otor • '•~ I

vehicles, parts and/or components that are required to be registered with ' (

the LTC thru the electronic transmission of Certificate bf

Payment/Clearance (e-CPC) to LTO;
7. Supervises, reviews & signs on matters pertaining to utilization of Tax,
Credit Certificates. 23

On the other hand, as collection officer, it was Tabije's responsibility

under Section 21 of the Manual on the New Government Accounting System
(NGAS), Volume l, to deposit intact all his collections, as well as collections
turned over to him by sub-collectors/tellers, with the authorized depositary

22 Ombudsman v. Delos Reyes, Jr., 745 Phil. 366,381 (2014).

23 Rollo, p. 107.
 Decision -9- G.R. No. 235764

bank daily or not later than the next banking day. Tabije is also responsible
for recording all deposits made in the Cash Receipts Record.

None of the above-mentioned responsibilities of petitioner require him

to monitor each and every daily deposit or remittance made by all the
collection officers under him. At most, petitioner's responsibility in relation
to Tabije's duty to collect and deposit was to prepare and sign the daily and
monthly collection reports based on the collection reports submitted to him by
collection officers. Other than being the chief of the Cash Collection Division,
there is no evidence on record of any badge of participation on th~ part of
petitioner in Tabije's failure to remit the amount of Php425,555.53, much less
any conspiracy in the latter's transactions. Even the Office of the S·olicitor
General noted that conspiracy is immaterial in this case because the findings
on petitioner's liability are based on his alleged negligence and ·failure to
observe the diligence of a good father of a family. 24

While ideally, petitioner should have been alerted as early as September

2010 that Tabije had failed to submit his report of collections and deposits for
said month, not to mention for October and November 2010 as well, We find
that petitioner's oversight did not rise to the level of gross negligence
considering the following steps which he took to report and investigate the
matter:

a) On December 9, 20 l 0, petitioner reported Tabij e's irregular

work attendance and ten-day absence without leave
(AWOL).

b) In January 2011, petitioner conducted a preliminary audit

of Tabije's collections which revealed a discrepancy in the
amount of Php425,555.53.

c) On February 28, 2011, petitioner sent a letter to Tabij~j-, /.:·: -

directing him to immediately settle said amount. · · _,; . : ~ :{,:
• ' 1 .I::"

The above actions of petitioner directly set in motion the investigation

against Tabije, and resulted in the latter being charged with Dishonesty,
Unauthorized Absences, Inefficiency and Gross Neglect of Duty. Indeed,
without said actions, the amount of Php425,555.53 may have never made it
back to the coffers of the government.

We find, therefore, that the COA gravely abused its discretion

amounting to lack or excess of jurisdiction in disapproving petitioner's
exclusion from liability.

24 Id. at 166-169.
 Decision - 10 - G.R. No. 235764

WHEREFORE, premises considered, the petition is GRANTED. The

assailed decision dated November 9, 2016 and resolution dated September 7,
2017 of the Commission on Audit are hereby REVERSED and SET ASIDE
insofar as they hold petitioner Rafael M. Crisol civilly liable under Notice of
Charge No. 2011-001-101(10).

SO ORDERED.

WE CONCUR:

Associate Justice

Associate Justice

AM ZARO-JAVIER
Associate Justice

HENR RODI
Decision - 11 - G.R. No, 235764

Associate Justice

JHOSE~OPEZ
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that

the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court.

AL,,E~O
/ Wc!ief
Justice