Al., Jimmy Martin, Menrado Allawan, Margarito: (G.R. No. 122728. February 13, 1997)

THIRD DIVISION
[G.R. No. 122728. February 13, 1997]
CASIANO A. ANGCHANGCO, JR., petitioner, vs. THE HONORABLE

OMBUDSMAN, ZALDY TAMAYO, GILDA NAVARRA, ODELIA
LEGASPI, SALVADOR TAMAYO, GASPAR ABORQUE, ROEL
ABAS, REMEDIOS OLITA, ET AL., TEODORO TORREON, ET
AL., JIMMY MARTIN, MENRADO ALLAWAN, MARGARITO
ESCORIAL, NORBERTO OCAT and ALEJANDRO
ERNA, respondents.
DECISION
MELO, J.:
Before us is a petition for mandamus seeking to: a) compel the Ombudsman

to dismiss Ombudsman Cases No. MIN-3-90-0671, MIN-90-0132, MIN-90-
0133, MIN-90-0138, MIN-90-0188, MIN-90-0189, MIN-90-0190, MIN-90-0191,
and MIN-90-0192; and b) direct the Ombudsman to issue a clearance in favor
of petitioner Casiano A. Angchangco.
The facts are as follows:
Prior to his retirement, petitioner served as a deputy sheriff and later as
Sheriff IV in the Regional Trial Court of Agusan del Norte and Butuan City.
On August 24, 1989, the Department of Labor and Employment (Region X)
rendered a decision ordering the Nasipit Integrated Arrastre and Stevedoring
Services Inc. (NIASSI) to pay its workers the sum of P1,281,065.505. The
decision having attained finality, a writ of execution was issued directing the
Provincial Sheriff of Agusan del Norte or his deputies to satisfy the same.
Petitioner, as the assigned sheriff and pursuant to the writ of execution issued,
caused the satisfaction of the decision by garnishing NIASSI's daily collections
from its various clients.
In an attempt to enjoin the further enforcement of the writ of execution, Atty.
Tranquilino O. Calo, Jr., President of NIASSI, filed a complaint for prohibition
and damages against petitioner. The regional trial court initially issued a
temporary restraining order but later dismissed the case for lack of jurisdiction.
In addition to the civil case, Atty. Calo likewise filed before the Office of the
Ombudsman a complaint against petitioner for graft, estafa/malversation and
misconduct relative to the enforcement of the writ of execution. Acting on the
complaint, the Ombudsman, in a Memorandum dated July 31, 1992,
recommended its dismissal for lack of merit.
Meanwhile, from June 25 to 28, 1990, several workers of NIASSI filed
letters-complaints with the Office of the Ombudsman-Mindanao alleging,
among others things, that petitioner illegally deducted an amount equivalent to
25% from their differential pay. The Office of the Ombudsman-Mindanao
endorsed to the Court the administrative aspect of the complaints which was
docketed hereat as A.M. No. 93-10-385-OMB. The Court in an En Banc
Resolution dated November 25, 1993 dismissed the case for lack of interest on
the part of complainants to pursue their case.
Although the administrative aspect of the complaints had already been
dismissed, the criminal complaints remained pending and unresolved,
prompting petitioner to file several omnibus motions for early resolution.
When petitioner retired in September 1994, the criminal complaints still
remained unresolved, as a consequence of which petitioner's request for
clearance in order that he may qualify to receive his retirement benefits was
denied.
With the criminal complaints remaining unresolved for more than 6 years,
petitioner filed a motion to dismiss, invoking Tatad vs. Sandiganbayan (G.R.
No. 72335-39, March 21, 1988). Sad to say, even this motion to dismiss,
however, has not been acted upon. Hence, the instant petition.
Acting on the petition, the Court issued a resolution dated December 20,
1995 requiring respondents to comment thereon. In compliance therewith, the
Office of the Solicitor General filed a Manifestation and Motion (in lieu of
Comment), which is its way of saying it agreed with the views of petitioner. On
July 22, 1996, we issued another resolution requiring the Ombudsman to file
his own comment on the petition if he so desires, otherwise, the petition will be
deemed submitted for resolution without such comment. After several
extensions, respondent Ombudsman, through the Office of the Special
Prosecutor, filed a comment dated October 7, 1996.
The Court finds the present petition to be impressed with merit.
Mandamus is a writ commanding a tribunal, corporation, board, or person
to do the act required to be done when it or he unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from
an office, trust, or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, there being no other
plain, speedy, and adequate remedy in the ordinary course of law (Section 3 of
Rule 65 of the Rules of Court).
After a careful review of the facts and circumstances of the present case,
the Court finds the inordinate delay of more than six years by the Ombudsman
in resolving the criminal complaints against petitioner to be violative of his
constitutionally guaranteed right to due process and to a speedy disposition of
the cases against him, thus warranting the dismissal of said criminal cases
pursuant to the pronouncement of the Court in Tatad vs. Sandiganbayan (159
SCRA 70 [1988]), wherein the Court, speaking through Justice Yap, said:
We find the long delay in the termination of the preliminary investigation by the
Tanodbayan in the instant case to be violative of the constitutional right of the accused
to due process. Substantial adherence to the requirements of the law governing the
conduct of preliminary investigation, including substantial compliance with the time
limitation prescribed by the law for the resolution of the case by the prosecutor, is part
of the procedural due process constitutionally guaranteed by the fundamental law. Not
only under the broad umbrella of the due process clause, but under the constitutional
guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill of
Right (both in the 1973 and the 1987 Constitutions), the inordinate delay is violative
of the petitioner's constitutional rights. A delay of close to three (3) years can not be
deemed reasonable or justifiable in the light of the circumstance obtaining in the case
at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long
delay by indulging in the speculative assumption that "the delay may be due to a
painstaking and grueling scrutiny by the Tanodbayan as to whether the evidence
presented during the preliminary investigation merited prosecution of a former high-
ranking government official." In the first place, such a statement suggests a double
standard of treatment, which must be emphatically rejected. Secondly, three out of the
five charges against the petitioner were for his alleged failure to file his sworn
statement of assets and liabilities required by Republic Act No. 3019, which certainly
did not involve complicated legal and factual issues necessitating such "painstaking
and grueling scrutiny" as would justify a delay of almost three years in terminating the
preliminary investigation. The other two charges relating to alleged bribery and
alleged giving of unwarranted benefits to a relative, while presenting more substantial
legal and factual issues, certainly do not warrant or justify the period of three years,
which it took the Tanodbayan to resolve the case.
It has been suggested that the long delay in terminating the preliminary investigation
should not be deemed fatal, for even the complete absence of a preliminary
investigation does not warrant dismissal of the information. True but the absence of a
preliminary investigation can not be corrected, for until now, man has not yet invented
a device for setting back time.
Verily, the Office of the Ombudsman in the instant case has failed to
discharge its duty mandated by the Constitution "to promptly act on complaints
filed in any form or manner against public officials and employees of the
government, or any subdivision, agency or instrumentality thereof."
Mandamus is employed to compel the performance, when refused, of a
ministerial duty, this being its chief use and not a discretionary duty. It is
nonetheless likewise available to compel action, when refused, in matters
involving judgment and discretion, but not to direct the exercise of judgment or
discretion in a particular way or the retraction or reversal of an action already
taken in the exercise of either (Rules of Court in the Philippines, Volume III by
Martin, 4th Edition, page 233).
It is correct, as averred in the comment that in the performance of an official
duty or act involving discretion, the corresponding official can only be directed
by mandamus to act, but not to act one way or the other. However, this rule
admits of exceptions such as in cases where there is gross abuse of discretion,
manifest injustice, or palpable excess of authority (Kant Kwong vs. PCGG, 156
SCRA 222, 232 [1987]).
Here, the Office of the Ombudsman, due to its failure to resolve the criminal
charges against petitioner for more than six years, has transgressed on the
constitutional right of petitioner to due process and to a speedy disposition of
the cases against him, as well as the Ombudsman's own constitutional duty to
act promptly on complaints filed before it. For all these past 6 years, petitioner
has remained under a cloud, and since his retirement in September 1994, he
has been deprived of the fruits of his retirement after serving the government
for over 42 years all because of the inaction of respondent Ombudsman. If we
wait any longer, it may be too late for petitioner to receive his retirement
benefits, not to speak of clearing his name. This is a case of plain injustice which
calls for the issuance of the writ prayed for.
WHEREFORE, the Court RESOLVED to give DUE COURSE to the petition
and to GRANT the same. Ombudsman Cases No. MIN-3-90-0671, MIN-90-
0132, MIN-90-0133, MIN-90-0138, MIN-90-0188, MIN-90-0189, MIN-90-0190,
MIN-90-0191, and MIN-90-0192 are ordered DISMISSED. The Office of the
Ombudsman is further directed to issue the corresponding clearance in favor of
petitioner.
SO ORDERED.
Narvasa, C.J., (Chairman), Davide, Jr., Francisco, and Panganiban,
JJ., concur.


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THIRD DIVISION

[G.R. No. 122728. February 13, 1997]

CASIANO A. ANGCHANGCO, JR., petitioner, vs. THE HONORABLE

Before us is a petition for mandamus seeking to: a) compel the Ombudsman

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