c. Taking undue advantage of official position d. Taking undue advantage of subordinate e. Undue disclosure of confidential information f. Use of government property in the commission of the offense g. Habituality h. Offense is committed during office hours and within the premises of the office or building; i. Employment of fraudulent means to commit or conceal the offense j. Length of service in the government k. Education l. Other analogous circumstances. Nevertheless, in the appreciation thereof, the same must be invoked or pleaded by the proper party, otherwise, said circumstances shall not be considered in the imposition of proper penalty. The Commission, however, in the interest of substantial justice may take and consider these circumstances. cralawlawlib rary The Court notes that the Deputy Overall Ombudsman was correct in appreciating the following mitigating circumstances in determining the imposable penalty, to wit: (1) petitioner's weak physical condition and (2) commission of the offense in a public place and in the presence of their office mates. However, the said Ombudsman gravely erred in failing to consider the following aggravating circumstances: (1) taking undue advantage of official position; (2) taking undue advantage of subordinate; and (3) education. As the Head of the Legal Department of PHILRACOM and the direct superior of respondent, petitioner's act of forcibly kissing her lips and saying “Ang sarap pala ng labi ni Maila x x x” in front of their office mates, smacks of bad faith, abuse of official position, flagrant disregard of the anti-sexual harassment law,38 and willful violation of the Code of Professional Responsibility.39 Under Section 54 (d) of the URACCS,40 where more aggravating circumstances are present than mitigating ones, the maximum penalty shall be imposed. Hence, the Court imposes the penalty of suspension of six (6) months without pay. Given that the Ombudsman is vested with plenary and unqualified power41 to investigate any malfeasance, misfeasance and non-feasance by a public officer or employee of the government, or any subdivision, agency or instrumentality thereof,42 the settled rule is that courts will not ordinarily interfere with the Ombudsman's exercise of its investigatory and prosecutory powers without good and compelling reason to indicate otherwise.43 As discussed above, the Court finds such good and compelling reasons based on law and jurisprudence as would warrant the modification of the CA decision, as well as the Memorandum-Order of Overall Deputy Office of the Ombudsman. Meanwhile, the Court disagrees on petitioner's contention that the issue of sexual harassment is better addressed in the pending criminal case for sexual harassment before the Metropolitan Trial Court of Makati, for to do so in an administrative proceedings would be unfair, unjust and extremely unreasonable. It bears to stress that administrative and criminal charges filed before the Office of the Ombudsman and the trial court, respectively, are separate and distinct from each other even if they arise from the same act or omission. This is because the quantum of proof required in