Case Digest: Financial Audit in MTCCs v. Judge Salubre
A.M. OCA IPI No. 09-3138-P/A.M. No. MTJ-05-1618 : OCTOBER 22, 2013
REPORT ON THE FINANCIAL AUDIT CONDUCTED IN THE MUNICIPAL TRIAL COURT IN CITIES, TAGUM CITY, DAVAO DEL NORTE/OFFICE OF THE COURT ADMINISTRATOR, Complainant, v. JUDGE ISMAEL L. SALUBRE, MR. NERIO L. EDIG and MS. BELLA LUNA C. ABELLA, MS. DELIA R. PALERO and MR. MACARIO HERMOGILDO S. AVENTURADO, all of MUNICIPAL TRIAL COURT IN CITIES, TAGUM CITY, DAVAO DEL NORTE, Respondents.
FACTS:
These consolidated administrative matters resulted from the two financial audits conducted on the books of accounts of the Municipal Trial Court in Cities (MTCC) of Tagum City, Davao del Norte. The first financial audit in said court in 2005 covered the period January 1, 1993 to January 31, 2005. The audit was prompted by a report of the Commission on Audit (COA) regarding the violation of Nerio L. Edig, Clerk of Court IV, of Section 21 of the New Manual on the New Government Accounting System, which requires all the collecting officers to deposit intact all their collections with the authorized government bank daily or not later than the next banking day, and Edig non-submission of monthly reports.
During the 2005 audit, Edig informed the audit team that Bella Luna C. Abella was his cashier from the time he assumed office as Clerk of Court on February 16, 1978. Abella was later replaced by Delia R. Palero from January 1, 1996 until January 30, 2002 and then by Macario H.S. Aventurado from January 31, 2002 up to the time of the audit in 2005.Abella also acted as Officer-in-Charge from April 1, 2002 until October 6, 2002 while Edig was on study leave.
The audit team reported that they were able to discover documents showing that Judge Salubre received on many occasions cash bonds of dismissed cases and forfeited cash bonds in the total amount of P436,800.00 and such discovery would confirm the allegations of both Ms. Palero and Mr. Aventurado that the Judge has something to do with the unaccounted amount incurred by them. They further alleged that Mr. Edig knew about what was happening inside the court but can not do anything. All of them were pressured.
The then Chief Justice Hilario Davide, Jr., the Office of the Court Administrator, recommended that Edig, Abella, Palero, Aventurado, Benemile, Salubre be directed to pay and remit and explain within 15 days why no administrative charge shall be taken against them. Acting upon the recommendations of the OCA, the Court, on November 23, 2005, issued a Resolution adopting the same.
Abella, on December 10, 2005, succumbed to cancer.
On February 13, 2006, Judge Tirol issued an Order directing Judge Salubre, Edig, Abella, Palero, Aventurado and Benemile to submit their answers/comments to the charges outlined in the November 23, 2005 Resolution.
In Aventurado Answer dated March 21, 2006, he contended that he never benefited from the unaccounted amount he was made to explain. He claimed to be the newest and youngest employee in the court and only sought advice from his fellow employees. He alleged that Clerk of Court Edig, Legal Researcher Abella and Court Interpreter Palero advised him to let the bondsman sign at the back of the receipts but even if he did as told, there were instances when the bondsmen would leave immediately after receiving the money.He kewise admitted to the delays in the remittance of collections but attributed said delays to Judge Salubre.He claimed that there were instances when the judge would call him to his chambers to ask about the cash on hand and thereafter order him to hand over some of the collections with a promise that he would return them after a day or two.As the judge was his superior, he would comply and as advised by his fellow employees, ask the judge to sign an acknowledgment receipt.He, however, alleged that there were times when the judge would get angry and refuse to sign the receipt.
In Palero Answer dated March 20, 2006, she explained that the unaccounted withdrawals totaling P3,147,285 were authorized. She contended that the withdrawal slips were signed by either Judge Salubre or Clerk of Court Edig.Part of the amount was received by Judge Salubre who even signed the acknowledgment receipts.As to the P21,000 pertaining to the cash bonds of dismissed cases that were supposed to be applied to fines but were not, Palero claimed that Judge Salubre also took it without signing an acknowledgment receipt though she noted it for reference.As to the P110,800 forfeited cash bonds, Palero submitted acknowledgment receipts showing that P21,000 was received by Evelyn Molde, wife of an accused in three criminal cases; P14,000 was withdrawn and received by Ms. Ruth Ibaos; and P63,800 was taken by Judge Salubre.
In his letter dated February 14, 2006, Benemile explained that records would show that he did not receive a writ of execution forPeople v. Molde and that he only knew of the fact that the same was decided and gained finality when he received the administrative order.As to People v. Salipot, he clarified that the writ of execution in said case was duly implemented but admitted that no return was made because the parties agreed that the losing party will pay in installment basis.
The investigating judge found Palero and Aventurado explanation as inadequate and unsatisfactory. However, the judge ruled that there was no clear indication of dishonesty that can be imputed to Palero and Aventurado and held that it was perhaps out of inexperience in the job of cash clerk that made them grossly ineffective and incompetent resulting in so much loss. As to Benemile, the investigating judge found that he cannot be held accountable for his failure to implement a writ which was never brought to his attention.
On December 11, 2006, the Court issued a Resolution dismissing the administrative complaint against Judge Salubre and Abella in view of their death; directing Edig to file his answer to the charges against him within 15 days from receipt and requiring Palero, Aventurado and Benemile to manifest to the Court whether they are submitting this matter for decision on the basis of the pleadings filed.
On October 23, 2007, then Chief Justice Reynato Puno, the OCA recommended the reconsideration of the Court Resolution dismissing the administrative case against Judge Salubre and Abella. On April 6, 2008, Edig passed away. His counsel prayed that Edig be dropped from the case and that his family be allowed to process and receive whatever is due them. This Court adopted the said recommendations of the OCA.
The second financial audit was conducted on the book of accounts of the MTCC of Tagum City covering the period February 1, 2005 to July 31, 2008. The audit team found shortages during the period of accountability.
Through a Memorandum dated July 20, 2010 to then chief Justice Renato Corona, the OCA submitted its evaluation and recommendations on the liabilities of Judge Salubre, Edig and Abella. Starting March 2012 up to the present, the OCA has been receiving several Manifestations44 from Palero and Aventurado as partial compliance with this Court directive in its February 18, 2009 Resolution for them to submit valid acknowledgment receipts to support the unauthorized withdrawals amounting to P607,290 of the same resolution.
ISSUE: Whether or not the death of the respondent in an administrative case a ground for the dismissal of the case against him?
HELD: Yes but are subject to exceptions.
POLITICAL LAW: effect of death in an administrative case
Jurisprudence is settled that the death of a respondent does not preclude a finding of administrative liability subject to certain exceptions. In the case of Gonzales v. Escalona, this Court expounded on this doctrine: While his death intervened after the completion of the investigation, it has been settled that the Court is not ousted of its jurisdiction over an administrative matter by the mere fact that the respondent public official ceases to hold office during the pendency of the respondent case; jurisdiction once acquired, continues to exist until the final resolution of the case.
In Layao, Jr. v. Caube, we held that the death of the respondent in an administrative case does not preclude a finding of administrative liability: This jurisdiction that was ours at the time of the filing of the administrative complainant was not lost by the mere fact that the respondent public official had ceased in office during the pendency of his case. The Court retains its jurisdiction either to pronounce the respondent public official innocent of the charges or declared him guilty thereof. A contrary rule would be fraught with injustice and pregnant with dreadful and dangerous implications ... If innocent, respondent public official merits vindication of his name and integrity as he leaves the government which he has served well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and imposable under the situation.
The above rule is not without exceptions, as we explained in the case of Limliman v. Judge Ulat-Marrero, where we said that death of the respondent necessitates the dismissal of theadministrativecaseupon a consideration of any of the following factors: first, the observance ofrespondent right to due process; second, the presence of exceptional circumstances in the case on the grounds of equitable and humanitarian reasons; and third, it may also depend on the kind of penalty imposed. None of these exceptional considerations are present in the case.
As in Gonzales, none of the exceptions exist in the cases of Judge Salubre and Edig. As correctly found by the OCA, both were served copies of this Court Resolution dated November 23, 2005 as well as the directive of the investigating judge for them to answer the charges against them. Thus, there was no violation of their right to due process as they were given the opportunity to be heard.Humanitarian considerations can neither be a ground for dismissal since there was no allegation or proof that the liabilities were incurred due to poor health. Also, if the imposable penalty is to be considered to determine if the instant cases against them should still continue, a fine may still be imposed or even a forfeiture of their retirement benefits if deemed proper.
On the other hand, Abella case is different. She died before a copy of the November 23, 2005 Resolution was served on her. As no actual service was made, Abella did not have the chance to defend herself against the charges hurled against her. Hence, the dismissal of the administrative case against her is in order.
Grave misconduct, gross neglect of duty and gross dishonesty of which Judge Salubre, Edig, Palero and Aventurado are found guilty, even if committed for the first time, are punishable by dismissal and carries with it the forfeiture of retirement benefits, except accrued leave benefits, and the perpetual disqualification for reemployment in the government service. As to Judge Salubre and Edig, however, in view of their deaths, the supreme penalty of dismissal cannot be imposed on them anymore.We however do not agree with the OCA recommendation that they will only be fined but their heirs will still be entitled to their retirement benefits.It is only the penalty of dismissal that is rendered futile by their passing since they are not in the service anymore, but it is still within the Court power to forfeit their retirement benefits as in the recent case of Office of the Court Administrator v. Noel R. Ong, Deputy Sheriff, Branch 49, and Alvin A. Buencamino, Deputy Sheriff, Branch 53 of the Metropolitan Trial Court, Caloocan City.In said case, the Court ordered the forfeiture of the retirement benefits, except accrued leave credits, of Buencamino, who was found guilty of grave misconduct and gross neglect of duty, but died during the pendency of the case.
As to Benemile, instead of the P1,000 fine recommended by the OCA, a suspension of one month and one day is meted on him forbeing found guilty of simple neglect of duty, a less grave offense.
The OCA recommended that the unsettled balance of the shortages shall be deducted from the retirement benefits of the three. This recommendation, however, is now only possible for Abella since the retirement benefits of Judge Salubre and Edig are ordered forfeited in favor of the Court.As for Palero and Aventurado, on top of the shortages for which they are individually accountable, they are deemed secondarily liable for the P5,684,875 of the computed shortages attributed to Edig: Palero for P3,147,285 and Aventurado for P2,537,590. Said amounts should be taken from the total monetary value of their earned leave credits. The remaining balance, if any, should in the meantime be withheld pending the evaluation of their compliances to the directives of the Court in its February 18, 2009 Resolution pertaining to the second audit. The administrative case against Bella Luna Abella is ordered DISMISSED.
REPORT ON THE FINANCIAL AUDIT CONDUCTED IN THE MUNICIPAL TRIAL COURT IN CITIES, TAGUM CITY, DAVAO DEL NORTE/OFFICE OF THE COURT ADMINISTRATOR, Complainant, v. JUDGE ISMAEL L. SALUBRE, MR. NERIO L. EDIG and MS. BELLA LUNA C. ABELLA, MS. DELIA R. PALERO and MR. MACARIO HERMOGILDO S. AVENTURADO, all of MUNICIPAL TRIAL COURT IN CITIES, TAGUM CITY, DAVAO DEL NORTE, Respondents.
FACTS:
These consolidated administrative matters resulted from the two financial audits conducted on the books of accounts of the Municipal Trial Court in Cities (MTCC) of Tagum City, Davao del Norte. The first financial audit in said court in 2005 covered the period January 1, 1993 to January 31, 2005. The audit was prompted by a report of the Commission on Audit (COA) regarding the violation of Nerio L. Edig, Clerk of Court IV, of Section 21 of the New Manual on the New Government Accounting System, which requires all the collecting officers to deposit intact all their collections with the authorized government bank daily or not later than the next banking day, and Edig non-submission of monthly reports.
During the 2005 audit, Edig informed the audit team that Bella Luna C. Abella was his cashier from the time he assumed office as Clerk of Court on February 16, 1978. Abella was later replaced by Delia R. Palero from January 1, 1996 until January 30, 2002 and then by Macario H.S. Aventurado from January 31, 2002 up to the time of the audit in 2005.Abella also acted as Officer-in-Charge from April 1, 2002 until October 6, 2002 while Edig was on study leave.
The audit team reported that they were able to discover documents showing that Judge Salubre received on many occasions cash bonds of dismissed cases and forfeited cash bonds in the total amount of P436,800.00 and such discovery would confirm the allegations of both Ms. Palero and Mr. Aventurado that the Judge has something to do with the unaccounted amount incurred by them. They further alleged that Mr. Edig knew about what was happening inside the court but can not do anything. All of them were pressured.
The then Chief Justice Hilario Davide, Jr., the Office of the Court Administrator, recommended that Edig, Abella, Palero, Aventurado, Benemile, Salubre be directed to pay and remit and explain within 15 days why no administrative charge shall be taken against them. Acting upon the recommendations of the OCA, the Court, on November 23, 2005, issued a Resolution adopting the same.
Abella, on December 10, 2005, succumbed to cancer.
On February 13, 2006, Judge Tirol issued an Order directing Judge Salubre, Edig, Abella, Palero, Aventurado and Benemile to submit their answers/comments to the charges outlined in the November 23, 2005 Resolution.
In Aventurado Answer dated March 21, 2006, he contended that he never benefited from the unaccounted amount he was made to explain. He claimed to be the newest and youngest employee in the court and only sought advice from his fellow employees. He alleged that Clerk of Court Edig, Legal Researcher Abella and Court Interpreter Palero advised him to let the bondsman sign at the back of the receipts but even if he did as told, there were instances when the bondsmen would leave immediately after receiving the money.He kewise admitted to the delays in the remittance of collections but attributed said delays to Judge Salubre.He claimed that there were instances when the judge would call him to his chambers to ask about the cash on hand and thereafter order him to hand over some of the collections with a promise that he would return them after a day or two.As the judge was his superior, he would comply and as advised by his fellow employees, ask the judge to sign an acknowledgment receipt.He, however, alleged that there were times when the judge would get angry and refuse to sign the receipt.
In Palero Answer dated March 20, 2006, she explained that the unaccounted withdrawals totaling P3,147,285 were authorized. She contended that the withdrawal slips were signed by either Judge Salubre or Clerk of Court Edig.Part of the amount was received by Judge Salubre who even signed the acknowledgment receipts.As to the P21,000 pertaining to the cash bonds of dismissed cases that were supposed to be applied to fines but were not, Palero claimed that Judge Salubre also took it without signing an acknowledgment receipt though she noted it for reference.As to the P110,800 forfeited cash bonds, Palero submitted acknowledgment receipts showing that P21,000 was received by Evelyn Molde, wife of an accused in three criminal cases; P14,000 was withdrawn and received by Ms. Ruth Ibaos; and P63,800 was taken by Judge Salubre.
In his letter dated February 14, 2006, Benemile explained that records would show that he did not receive a writ of execution forPeople v. Molde and that he only knew of the fact that the same was decided and gained finality when he received the administrative order.As to People v. Salipot, he clarified that the writ of execution in said case was duly implemented but admitted that no return was made because the parties agreed that the losing party will pay in installment basis.
The investigating judge found Palero and Aventurado explanation as inadequate and unsatisfactory. However, the judge ruled that there was no clear indication of dishonesty that can be imputed to Palero and Aventurado and held that it was perhaps out of inexperience in the job of cash clerk that made them grossly ineffective and incompetent resulting in so much loss. As to Benemile, the investigating judge found that he cannot be held accountable for his failure to implement a writ which was never brought to his attention.
On December 11, 2006, the Court issued a Resolution dismissing the administrative complaint against Judge Salubre and Abella in view of their death; directing Edig to file his answer to the charges against him within 15 days from receipt and requiring Palero, Aventurado and Benemile to manifest to the Court whether they are submitting this matter for decision on the basis of the pleadings filed.
On October 23, 2007, then Chief Justice Reynato Puno, the OCA recommended the reconsideration of the Court Resolution dismissing the administrative case against Judge Salubre and Abella. On April 6, 2008, Edig passed away. His counsel prayed that Edig be dropped from the case and that his family be allowed to process and receive whatever is due them. This Court adopted the said recommendations of the OCA.
The second financial audit was conducted on the book of accounts of the MTCC of Tagum City covering the period February 1, 2005 to July 31, 2008. The audit team found shortages during the period of accountability.
Through a Memorandum dated July 20, 2010 to then chief Justice Renato Corona, the OCA submitted its evaluation and recommendations on the liabilities of Judge Salubre, Edig and Abella. Starting March 2012 up to the present, the OCA has been receiving several Manifestations44 from Palero and Aventurado as partial compliance with this Court directive in its February 18, 2009 Resolution for them to submit valid acknowledgment receipts to support the unauthorized withdrawals amounting to P607,290 of the same resolution.
ISSUE: Whether or not the death of the respondent in an administrative case a ground for the dismissal of the case against him?
HELD: Yes but are subject to exceptions.
POLITICAL LAW: effect of death in an administrative case
Jurisprudence is settled that the death of a respondent does not preclude a finding of administrative liability subject to certain exceptions. In the case of Gonzales v. Escalona, this Court expounded on this doctrine: While his death intervened after the completion of the investigation, it has been settled that the Court is not ousted of its jurisdiction over an administrative matter by the mere fact that the respondent public official ceases to hold office during the pendency of the respondent case; jurisdiction once acquired, continues to exist until the final resolution of the case.
In Layao, Jr. v. Caube, we held that the death of the respondent in an administrative case does not preclude a finding of administrative liability: This jurisdiction that was ours at the time of the filing of the administrative complainant was not lost by the mere fact that the respondent public official had ceased in office during the pendency of his case. The Court retains its jurisdiction either to pronounce the respondent public official innocent of the charges or declared him guilty thereof. A contrary rule would be fraught with injustice and pregnant with dreadful and dangerous implications ... If innocent, respondent public official merits vindication of his name and integrity as he leaves the government which he has served well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and imposable under the situation.
The above rule is not without exceptions, as we explained in the case of Limliman v. Judge Ulat-Marrero, where we said that death of the respondent necessitates the dismissal of theadministrativecaseupon a consideration of any of the following factors: first, the observance ofrespondent right to due process; second, the presence of exceptional circumstances in the case on the grounds of equitable and humanitarian reasons; and third, it may also depend on the kind of penalty imposed. None of these exceptional considerations are present in the case.
As in Gonzales, none of the exceptions exist in the cases of Judge Salubre and Edig. As correctly found by the OCA, both were served copies of this Court Resolution dated November 23, 2005 as well as the directive of the investigating judge for them to answer the charges against them. Thus, there was no violation of their right to due process as they were given the opportunity to be heard.Humanitarian considerations can neither be a ground for dismissal since there was no allegation or proof that the liabilities were incurred due to poor health. Also, if the imposable penalty is to be considered to determine if the instant cases against them should still continue, a fine may still be imposed or even a forfeiture of their retirement benefits if deemed proper.
On the other hand, Abella case is different. She died before a copy of the November 23, 2005 Resolution was served on her. As no actual service was made, Abella did not have the chance to defend herself against the charges hurled against her. Hence, the dismissal of the administrative case against her is in order.
Grave misconduct, gross neglect of duty and gross dishonesty of which Judge Salubre, Edig, Palero and Aventurado are found guilty, even if committed for the first time, are punishable by dismissal and carries with it the forfeiture of retirement benefits, except accrued leave benefits, and the perpetual disqualification for reemployment in the government service. As to Judge Salubre and Edig, however, in view of their deaths, the supreme penalty of dismissal cannot be imposed on them anymore.We however do not agree with the OCA recommendation that they will only be fined but their heirs will still be entitled to their retirement benefits.It is only the penalty of dismissal that is rendered futile by their passing since they are not in the service anymore, but it is still within the Court power to forfeit their retirement benefits as in the recent case of Office of the Court Administrator v. Noel R. Ong, Deputy Sheriff, Branch 49, and Alvin A. Buencamino, Deputy Sheriff, Branch 53 of the Metropolitan Trial Court, Caloocan City.In said case, the Court ordered the forfeiture of the retirement benefits, except accrued leave credits, of Buencamino, who was found guilty of grave misconduct and gross neglect of duty, but died during the pendency of the case.
As to Benemile, instead of the P1,000 fine recommended by the OCA, a suspension of one month and one day is meted on him forbeing found guilty of simple neglect of duty, a less grave offense.
The OCA recommended that the unsettled balance of the shortages shall be deducted from the retirement benefits of the three. This recommendation, however, is now only possible for Abella since the retirement benefits of Judge Salubre and Edig are ordered forfeited in favor of the Court.As for Palero and Aventurado, on top of the shortages for which they are individually accountable, they are deemed secondarily liable for the P5,684,875 of the computed shortages attributed to Edig: Palero for P3,147,285 and Aventurado for P2,537,590. Said amounts should be taken from the total monetary value of their earned leave credits. The remaining balance, if any, should in the meantime be withheld pending the evaluation of their compliances to the directives of the Court in its February 18, 2009 Resolution pertaining to the second audit. The administrative case against Bella Luna Abella is ordered DISMISSED.
