Court of Appeal modifies Ombudsman’s order
BLACK SAND MINING OPERATIONS
By Yolanda Sotelo
DAGUPAN CITY – The Court of Appeals modified the joint order of the Ombudsman dismissing two Pangasinan provincial officials from government service because of illegal black sand mining operations along coastal areas of Lingayen.
The CA said the Ombudsman found as “meritorious” the arguments of Pangasinan Provincial Administrator Rafael Baraan that he was not properly apprised of the charge against it, whileProvincial Housing Development office head Alvin Bigay “was uninformed of the specific charges against him.”
But the CA said Baraan was guilty of simple misconduct for which he is suspended for three months, while it dismissed the administrative case against Bigay, “for lack of due process.”
The decision, dated February 14, was penned by Associate Justice Samuel Gaerlan and concurred by Associate Justices(chair) Normandie Pizarro and Ma. Luisa Quijano-Padilla.
Baraan and Bigay however, still face the criminal aspects of the cases at the Office of the Ombudsman which is conducting pre-trial on the cases.
Recall that on December 15, 2015, the Ombudsman issued a Joint Order maintaining the decision date February 28, 2014 saying Baraan and Bigay were guilty of the grave misconduct, meting to them the penalty of dismissal and perpetual disqualification from government service.
In the decision, the CA said the Ombudsman gravely erred in finding petitioners guilty of grave misconduct despite the lack of substantial proof of its elements and factual/legal bases. It said Baraan actually did not commit grave abuse of authority, only simple misconduct, when he issued permits to unqualified entities.
However, the court said Baraan transgressed the law when he allowed preparatory ground works on the proposed golf course site to begin prior to issuance of an ECC. “But this deficiency alone does not suffice to render Baraan guilty of grave misconduct,” it said.
As for Bigay, the CA said it was convinced that he was uninformed of the nature and cause of the offense with which he was charged, and that the complaint-affidavit failed to state any factual allegation pertaining to even a single act he committed,which constituted an unlawful conduct.
“Such failure to be notified of the basis of the charge against him clearly violated his right to due process, Hence, the administrative case against him warrants dismissal,” the court said.
The CA added that the two accused did not exhibit manifest partiality towards Alexandra Mining nor gave unwarranted benefits to Xypher Builders.
Alexandra and Xypher, the companies with almost same board members, were “contracted” by the provincial government to do “soil remediation” in the area where the provincial government claimed to be putting up a golf course.
Residents however, claimed that the provincial government undertook black sand mining as shown by earth moving and heavy equipment and trucks in the area. A mountain of black sand mined from the area was also left there after the Department of Environment and Natural Resources ordered the officials to cease and desist from the activities.
The CA said the petitioners did not transgress the law by contracting the two companies despite their supposed lack of PCAB accreditation and municipal business permits, and did not transgress the law by supposedly failing to secure an environmental compliance certificate prior to approval, implementation or execution of the golf course project.
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