Republic of the Philippines

Court of Appeals
Manila

NINTH DIVISION

JOSEPH C. CUA, CA-G.R. SP No. 1644741

Petitioner,

Members:

- versus - PERALTA, JR. E.B., Chairperson

ONG, W.S., and
SAN GASPAR-GITO, E.L., JJ.

OFFICE OF THE OMBUDSMAN Promulgated:

and REY MENDEZ,
Respondents. May 28, 2024
x ----------------------------------------------------------------------------------------------------- x

DECISION

SAN GASPAR-GITO, E.L., J.:

Gross Neglect of Duty constitutes "[n]egligence characterized by want of

even slight care, or by 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 the consequences, insofar as other persons may be affected. It is
the omission of that care that even inattentive and thoughtless men never fail to
give to their own property."2

This is a Petition3 for review under Rule 43 of the Rules of Court from the
a) Decision dated April 22, 20194 and b) Joint Order dated August 15, 20195 of the
Office of the Ombudsman (“public respondent”), finding petitioner guilty of gross

1 This is part of the initial case load (ICL) assigned to Justice Emily L. San Gaspar-Gito, who
took her oath as Associate Justice of the Court of Appeals on March 8, 2022.

2 Andaya v. Field Investigation Office of the Office of the Ombudsman, G.R. No. 237837, June 10, 2019.

3 Rollo, pp. 3-216.

4 Annex “A,” id. at 48-59.
5 Annex “B,” id. at 60-66.
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CA-G.R. SP No. 164474

neglect of duty and meted the penalty of suspension for one (1) year, without
pay.

THE ANTECEDENTS

The instant case stemmed from a complaint6 filed by private respondent

Rey Mendez (“private respondent Mendez”) against petitioner Joseph C. Cua
(“petitioner”) and Eulogio Rodriguez (“Rodriguez”) for abuse of authority, grave
misconduct, gross ignorance of the law, dishonesty, and conduct prejudicial to
the best interest of the service, and violation of Section 3 (e) of Republic Act No.
3019, otherwise known as the “Anti-Graft and Corrupt Practices Act.” Petitioner is
the Governor of the Province of Catanduanes, while Rodriguez is the Mayor of
the Municipality of Bato, Catanduanes.

Private respondent Mendez alleged that a parcel of land located at Sta.

Elena, Virac, Catanduanes was used by E.R. Construction as a bunkhouse for its
employees and as a garage for the equipment and storage of materials for more
than a year. The Provincial Government of Catanduanes owns the parcel of land.7
Private respondent Mendez claimed that petitioner and Rodriguez conspired to
utilize the said property, without any authority from the Provincial Board. Thus,
they committed abuse of authority, gross misconduct, and conduct prejudicial to
the service, and violation of Section 3 (e) of R.A. No. 3019.8

He further alleged that petitioner permitted, tolerated, or authorized the

use of the said property. Its existence and use cannot be denied because it is in
the heart of Virac and is visible to the public. A billboard of the project of DPWH
for the upgrading rehab of drainage along national road CCR K0203+400-
K0204+531 was likewise displayed therein. However, on March 26, 2018,
E.R. Construction demobilized and pulled out from the said property due to a
letter from a certain Mr. Romeo Esplana (“Esplana”) of Legazpi City.9

Moreover, a Certification10 was issued by Atty. Gilbert T. Suarez, Secretary

to the Sangguniang Panlalawigan, that there was no record of any ordinance or
resolution pertaining to the lease contract between the Provincial Government of
Catanduanes and ER Construction for the use of the said property.

Petitioner, on the other hand, alleged that he seldom saw the said property
because he did not pass by the area in going to and from his residence to the

6 Annex “E,” Affidavit-Complaint, id. at 97-108.

7 Tax Declaration No. 2013-11-0037-01182, id. at 102.
8 Id.
9 Annex “E,” Affidavit-Complaint, id. at 97-108.
10 Id. at 103.
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CA-G.R. SP No. 164474

provincial capitol. He denied knowledge of the ownership of ER Construction and

whether it was the one doing the DPWH project. He denied having issued any
permit for ER Construction or any entity to occupy the said property. In addition,
he claimed that the Sangguniang Panlalawigan did not call his attention regarding
respondent Mendez’ complaint.11

He further alleged that private respondent Mendez failed to prove that the
said property was being occupied and used by ER Construction as a bunkhouse,
except for his unsubstantiated claims. Private respondent Mendez likewise failed
to exhaust remedies at the provincial level, as he failed to inform him or write to
him about the matter.12

He also found it incredible that a certain Mr. Esplana, who was from
another province, was able to cause E.R. Construction to pull out from the said
property. Lastly, he claimed that private respondent Mendez failed to prove that
he conspired with Rodriguez in allowing the use of the said property.13

On January 8, 2019, the public respondent issued the Order14 preventively

suspending petitioner without pay, thus:

WHEREFORE, in accordance with Section 9, Rule III of

Administrative Order No. 7, as amended, and Section 24 of Republic
Act No. 6770, respondent Joseph C. Cua is hereby PREVENTIVELY
SUSPENDED during the pendency of this case until its termination,
but not to exceed a total period of six (6) months, without pay. In
case of delay in the disposition of the case due to the fault,
negligence or any cause attributable to the respondent, the period of
such delay shall not be counted in computing the period of the
preventive suspension. xxx.

Thereafter, petitioner sought reconsideration.15 He likewise filed several

motions to resolve his earlier motion.16 In one of his motions, petitioner alleged

11 Annex “F,” Counter-Affidavit with Comment to Motion for Preventive Suspension, id. at 109-123.
12 Id.
13 Id.
14 Annex “J,” Order dated January 8, 2019, id. at 151-156.
15 Annex “K,” Very Urgent Omnibus Motion (for Reconsideration, to Lift the Order of Preventive
Suspension and for Immediate Resolution), id. at 157-202.

16 Annex “L,” Urgent Ex-Parte Motion to Resolve, id. at 203-204, Annex “M,” Reiterative Urgent Ex-
Parte Motion to Resolve, id. at 205-207, Annex “N,” Third Reiterative Urgent Ex-Parte Motion to
Resolve, id. at 208-210, Annex “O,” Fourth Reiterative Urgent Ex-Parte Motion to Resolve, id. at
211-213, Annex “P,” Fifth Reiterative Ex-Parte Motion to Resolve, id. at. 214-216.
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CA-G.R. SP No. 164474

that, on March 16, 2018, the Office of the Governor received a letter 17 from Mr.
Esplana from Legazpi City, Albay, requesting a copy of the lease agreement
between the Provincial Government of Catanduanes and E.R. Construction
regarding the alleged use of the said property.

On March 20, 2018, petitioner endorsed Mr. Esplana’s letter to Mr. Crispin
Lopez (“Lopez”) of the Provincial General Services Office.18 Acting on the said
endorsement, Mr. Lopez replied to Mr. Esplana, asking him to appear personally
before the said Office for clarification of the matter.19 However, Mr. Esplana failed
to appear.20

Subsequently, on January 15, 2019, Mr. Lopez executed a Sworn Statement21

stating that the said property had never been used by any construction company
as parking space for equipment and materials, and neither was a bunker
constructed thereon.

On April 22, 2019, the public respondent issued the assailed Decision
finding petitioner guilty of the grave offense of gross neglect of duty, with
penalty of suspension from office for one (1) year without pay, thus:

FOREGOING CONSIDERED, this Office finds substantial

evidence to hold Joseph C. Cua GUILTY of the grave offense of
GROSS NEGLECT OF DUTY and is meted the penalty of
SUSPENSION FROM OFFICE FOR ONE YEAR WITHOUT PAY.

In the event that the penalty of SUSPENSION can no longer

be enforced due to separation from the service, the same shall be
converted into a Fine in the amount equivalent to respondent’s
salary for one (1) year, payable to the Office of the Ombudsman, and
may be deductible from respondent’s retirement benefits, accrued
leave credits or any receivable from his office. x x x22

Petitioner sought reconsideration,23 however, the same was denied

17 Annex “3” of Annex “K,” Very Urgent Omnibus Motion (for Reconsideration, to Lift the Order of
Preventive Suspension and for Immediate Resolution), id. at 194.

18 Annex “4,” id at 195.

19 Annex “5,” id. at 196.
20 Id.
21 Annex “7,” id. at 198-199.
22 Annex “A,” Decision dated April 22, 2019, id. at 48-59.
23 Annex “C,” Motion for Partial Reconsideration, id. at 67-93, and Annex “D,” Ad Cautelam Motion,
id. at 94-96.
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CA-G.R. SP No. 164474

through the Joint Order dated August 15, 2019.24

Hence, this Petition.

Petitioner raises the sole issue of whether the public respondent gravely
erred in finding him guilty of gross neglect of duty. To support his claim, he
further argues that the public respondent gravely erred in finding that 1) there
was inaction on his part on the alleged use of the said property; 2) he tacitly
authorized ER Construction to use the said property; 3) ER Construction used the
said property despite lack of evidence thereof; 4) not considering his good faith;
and 5) violating his right to due process.25

Public respondent, on the other hand, argues that it correctly found

petitioner guilty of gross neglect of duty since there was substantial evidence to
support such finding.26

Thereafter, petitioner filed his Reply.27 Subsequently, petitioner filed his

Memorandum.28 Public respondent, on the other hand, manifested that it adopts
the Comment previously filed as its Memorandum.29

THE COURT’S RULING

The petition is meritorious.

In Andaya v. Field Investigation Office of the Office of the Ombudsman 30, the
Supreme Court defined gross neglect of duty as negligence characterized by
want of even slight care, or by 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 the consequences, insofar as other persons may be
affected. It is the omission of that care that even inattentive and thoughtless men
never fail to give to their own property.

Gross negligence, thus, involves an element of intent, more than mere

carelessness or indifference to do one's duty. To be held liable for gross

24 Annex “B,” id at 60-66.

25 Petition, id. at 3-223.
26 Comment (with Compliance), id. at 249-270.
27 Reply (To Public Respondent’s Comment (with Compliance), id. at 272-279.
28 Memorandum for the Petitioner, id. at 336-375.
29 Manifestation (in lieu of Memorandum), id. at 331-335.
30 G.R. No. 237837, June 10, 2019.
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negligence, a public official must have intentionally shirked his duty, fully aware
that he is duty-bound to perform. Simply, gross negligence involves consciously
avoiding doing one's work.31

Applying the foregoing principles, was petitioner guilty of gross neglect of duty?

We rule in the negative.

Under Section 2 of Presidential Decree No. 1445, otherwise known as the

"Government Auditing Code of the Philippines," it is the policy of the State that all
resources of the government shall be managed, expended, or utilized in
accordance with law and regulations, and safeguard against loss or wastage
through illegal or improper disposition, with a view to ensuring efficiency,
economy, and effectiveness in the operations of government. The responsibility
to ensure such policy is faithfully adhered to rests directly with the chief or head
of the government agency concerned.

Corollary thereto, Section 490 of the Local Government Code, the general
services officer shall take custody and be accountable for all pieces of property
owned by the local government unit, thus:

ARTICLE XX
The General Services Officer

Section 490. Qualifications, Powers and Duties.

xxx

(b) The general services officer shall take charge of the office on
general services and shall:

(1) xxx;
(2) xxx;
(3) In addition to the foregoing duties and functions, the
general services officer shall:

(i) Take custody of and be accountable for all

properties, real or personal, owned by the local
government unit and those granted to it in the form of
donation, reparation, assistance and counterpart of
joint projects;
xxx

31 Trinidad, Jr. v. Office of the Ombudsman, G.R. No. 227440 (Resolution), December 2, 2020.
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CA-G.R. SP No. 164474

Based on the foregoing precepts, while it is true that the provincial

governor, as the chief executive of the provincial government, has the
responsibility and duty to ensure that resources of the government is properly
managed and utilized, the Local Government Code specifically entrusts to the
General Services Officer the custody and accountability of pieces of property
owned by the local government unit.

In his Sworn Statement, Mr. Lopez, as the officer-in-charge from the

Provincial General Services Offices confirmed that pursuant to the Local
Government Code, said Office is accountable for all properties, real or personal,
owned by the Provincial Government of Catanduanes, thus:

xxx

1. I am presently the OIC of the Provincial General Services

Office (PGSO) of the local government of Catanduanes. Pursuant to
the Local Government Code, a function that my office performs is
to be accountable for all properties, real or personal, owned by the
provincial government of Catanduanes. Because of the principle of
devolution, our office has the responsibility of exercising custody
and management of provincial properties, and no the Office of the
Governor, although the PGSO provides recommendations or
suggestions to the Governor, the Sangguniang Panlalawigan and
other offices of the provincial government in the management and
utilization of the provincial government’s properties and facilities.

Here, the records show that petitioner endorsed the complaint of Mr.
Esplana regarding the use of the subject property to Mr. Lopez, the Officer-in-
Charge from the Provincial General Services Office. In turn, Mr. Lopez replied to
Mr. Esplana and asked the latter to appear before their office for clarification of
his complaint. However, Mr. Esplana failed to appear.

Thus, contrary to the findings of the public respondent, there was no

inaction on the part of petitioner as would be tantamount to a tacit permission by
petitioner on the use of the subject property.

However, We hold that petitioner should be held liable for Simple Neglect
of Duty. The fact that private respondent Mendez’s complaint involved the same
property subject of Mr. Esplana’s letter should have prompted petitioner to make
a follow-up on the subject property after his referral of the matter to the Provincial
General Services Office.

Simple Neglect of Duty is the failure of an employee or official to give

proper attention to a task expected of him or her, signifying a disregard of a duty
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CA-G.R. SP No. 164474

resulting from carelessness or indifference.32 In Field Investigation Office v. Cruz33,

the Supreme Court enumerated the instances of Simple Neglect of Duty, thus:

A short survey of cases decided by the Court where the

respondent therein was held guilty of simple neglect of duty shows a
common thread. In Philippine Retirement Authority v. Rupa, it
considers the following as simple neglect of duty at that time: delay
in the transmittal of court records, delay in responding to written
queries, and delay of more than one (1) year and seven (7) months in
furnishing a party with a copy of the court's decision. Thus, mere
delay in the performance of one's function was deemed as simple
neglect of duty.

In Daplas v. Department of Finance, et al., failure to declare some

properties in the Statement of Assets, Liabilities, and Net Worth
without the intent to make a false statement, as required by R.A. No.
6713, was considered as within the ambit of simple neglect of duty.

In Ombudsman v. Tongson, et al., the public officers failed to use

reasonable diligence in the performance of their officially-designated
duties as they failed to comply with the Implementing Rules and
Regulations of Presidential Decree No. 1594. The public officers
involved were held guilty of simple neglect of duty and were
mandated to comply with the said law.

In Deputy Ombudsman for the Military and Other Law Enforcement

Offices v. Saligumba, the public officer neglected to efficiently and
effectively discharge his duties to inspect deliveries of procurement,
contrary to the Philippine National Police Procurement Manual,
series of 1997.

In Facura and Tuason v. Court of Appeals, et al., the Human

Resources Management Officer was found guilty of simple neglect of
duty because in her listed duties under the Civil Service Commission
Accreditation Program, she should have been aware of the
reportorial requirements for appointments.

In Salumbides and Arana v. Ombudsman, et al., the Court stated

that the public officers fell short of the reasonable diligence because
they failed to ascertain the legal requirements and fiscal soundness of
the projects before approving the same, especially without
competitive bidding. Thus, respondents in that case failed to
disburse funds in compliance with the requirements of the law.

32 Id.
33 G.R. No. 227473 (Notice), March 12, 2018.
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Finally, in Galero v. Court of Appeals, et al., the immediate

supervisor was penalized for simple neglect of duty when he failed
to monitor his employees' attendance and their daily time record,
which led to one employee dividing his time between two (2)
employers and being paid twice.

Thus, applying the foregoing, We hold that petitioner is liable only for
Simple Neglect of Duty.

Under Section 46, Rule 10 of the Revised Rules on Administrative Cases in the
Civil Service34, the penalty for Simple Neglect of Duty is suspension of
one (1) month and one (1) day suspension to six (6) months for the first offense
and dismissal from the service for the second offense. Considering that this is
petitioner’s first offense, the penalty of suspension of one (1) month and one (1) is
in order. The payment of penalty of fine in lieu of suspension shall be available in
Grave, Less Grave and Light Offenses where the penalty imposed is for six (6)
months or less at the ratio of one (1) day of suspension from the service to one (1)
day fine.35

WHEREFORE, premises considered, the instant Petition is GRANTED.

Accordingly, the Decision dated April 22, 2019 and Joint Order dated August 15,
2019 of the Office of the Ombudsman are MODIFIED. Petitioner is found
GUILTY of Simple Neglect of Duty. He is meted with the penalty of SUSPENSION
from office for one (1) month and one (1) day. In the event that the penalty of
suspension can no longer be enforced due to petitioner’s separation from the
service, the same shall be converted into a FINE in the amount equivalent to his
salary for one (1) month and one (1) day, payable to the Office of the
Ombudsman, and may be deducted from his accrued leave credits or any
receivables from his office, or he may opt to directly pay the fine.

SO ORDERED.
(ORIGINAL SIGNED)
EMILY L. SAN GASPAR-GITO
Associate Justice

WE CONCUR:

(ORIGINAL SIGNED) (ORIGINAL SIGNED)

EDUARDO B. PERALTA, JR. WALTER S. ONG
Associate Justice Associate Justice

34 CSC Resolution No. 1101502.

35 Par.2, Section 47, Rule 10 of the Revised Rules on Administrative Cases in the Civil Service. See
also Ampongan v. Office of the Ombudsman, G.R. No. 248037, June 28, 2021.
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CA-G.R. SP No. 164474

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby

certified 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.

(ORIGINAL SIGNED)
EDUARDO B. PERALTA, JR.
Associate Justice
Chairperson, Ninth Division