351 Phil. 1
PER CURIAM:
This
administrative matter is a consequence of the judicial and financial audit conducted
on the 13th to the 17th of February 1995 by an Audit Team from the Office of
the Court Administrator (OCA) in response to a Letter of Judge Bernanrdo V.
Salundares, then Acting Presiding Judge, RTC-Br. 4, Panabo, Davao del Norte,
dated 24 October 1995 inviting our
attention to the disorganized state of the case records and financial accounts
of the count during the incumbency of Judge Mariano C. Tupas who optionally
retired on 1 August 1994.
Judicial Audit
The physical
inventory of pending cases made by the Audit Team disclosed that-
1. Five
(5) civil cases, special civil action, special proceedings and miscellaneous
cases remained undecided beyond the 90-day reglementary period -
a. Civil Case No. 1989 - Seguin v. Spouses
Calibuso (For reconveyance, quieting of title and damages)[1]
b.
Civil Case No. 89-9 - Alombro v. Codog (Unlawful detainer on appeal)[2]
c. Misc. Case No. 93 37- C. Ridor, et al.,
petitioners (For issuance of new owner’s duplicate TCT)[3]
d.
Civil Case No. 94-64 - Demetrio v. Baylon (Forcible entry on appeal)[4]
e. Civil Case No. 88-3 - Spouses Magdael v.
Oray (For injuction with prayer for writ of preliminary injuction)[5]
2 Three (3) criminal cases were
likewise undecided way beyond ninety (90) days -
a. Crim.
Case No. 93-118 - People v. Suarez (For homicide)[6]
b. Crim.
Case No. 90-189 - People v. Alcomendras (For qualified theft)[7]
c.Crim.
Case No. 94-136 - People v. Castro (For grave slander)[8]
3. Cases submitted after 1 August
1994 when Judge Tupas optionally retired -
a. Civil Case No. 93-70 - Del Campo v. Spouses
Sison (For annulment of deed of sale)[9]
b. Civil Case
No. 90-72 - Trinio v. Rural Bank of Sto Tomas (For enforcement of right
to purchase)[10]
c. Civil
Case No. 94-16- (No title reported) (For declaration of nullity of marriage)[11]
d. Civil Case No. 91-22 - Heirs of M. Estarco v.
Tayug (For damages under culpa aquiliana)[12]
e. Crim
Case No. 92-208 - People v. Palma Gil (For murder)[13]
f. Civil
Case No. 1586 - Heirs of C. Borre v. Nasser (For declararion of nullity)[14]
g. Civil Case No. 94-53 - Omanos v. Forsentera
(For declaration of nullity of deed of sale)[15]
4. Minutes of Proceedings appeared
only in cases which were elevated to the Court of Appeals and remanded to it
afterwards. All unappealed cases did not have Minutes of Proceedings on file.
5. At least fifty (5) decided
civil and miscellaneous cases as well as special proceedings were not properly
logged in the appropriate Docket Book as disposed cases.
6. In almost all the case records,
pleadings were not chronologically stiched and, in some cases, they were not
attached to the expedientes.[16]
Financial Audit
On the other
hand, the financial audit for the period covering August 1989 to 31 January
1995 provided the following data:
1. The collection for Fiduciary Fund were effected by Atty. Victor R, Ginete, Clerk of Court, RTC- Br. 4, Panabo, Davao del Norte, only in June 1993. Previous to this the amounts were directly deposited by the litigants with the Municipal Treasurer of Panabo. At the time of the audit in 1995, Atty Ginete was six (6) months behind in the submission of his reports.[17] There was no Cash Book kept for the Fiduciary Fund. The Unwithdrawn Fiduciary Fund collection deposited with the Treasurer’s Office amounted to P335,545.00. As of 2 March 1995, Atty. Ginete incurred a shortage of P12,461.75.
2. The total collection for Judiciary Development Fund(JDF) was P545,843.47 and only the amount of P527,466.34 was remitted thus resulting in a total shortage of P18,377.25 as of 7 March 1995. The transactions in the Cash Book were recorded starting January 1993 only. From August 1989 to Febraury 1990, JDF collection were remitted to the National Treasury and not to the PNB - Supreme Court, in violation of SC Circular No. 5 of 21 February 1985. This however stopped in March 1990.
3. For the Clerk of Court General Fund, of the total collection of P270,368.56 only the amount of P263,518.91 was remitted thus showing a shortage of P6,849.65. After the audit, however, Atty. Ginete further remitted P7,317.65 on 7 March 1995 1995 resulting in an excess of P468.00.
4. For the Ex-Officio Sheriff General Fund, a total collection of P5,333.00 was made but only P5,297.00 was remitted, incurring a shortage pf P36.00. After the audit, Atty Ginete remitted P152.00 on 7 March 1995 which was P116.00 more than the amount due.
5. For the Sheriff Trust Fund, no collection at all was found.
6. All collection were later on deposited still with the Rural Bank of Panabo under Savings Account No. S/A #51-26718-1.[18] Other than the entries in the passbook, only a few duplicate copies of the savings account deposit slips were kept. Deposit slips on file lumped together all the different collections into a single total therein.
7. Collection for JDF, General fund, Legal Research Fees and Land Registration Commission Fees were withdrawn from the Rural Bank Panabo after earning interst for three (3) months and transferred to the Land Bank of the Philippines (LBP), Tagum Branch.
8. Posted Supreme Court salary checks of employees were found to have been encashed from the Fiduciary Fund Collections.
9. Collection by the court were allowed to be borrowed by the personnel: Judge Tupas borrowedP500.00 on 19 April which he paid back on 23 May 1991; and Atty. Ginete made several unauthorized withdrawals: (a)P1,253.00 on 8 November 1991 for himself andP800.00 for James Bacaltos, the legal researcher who was then taking the bar examinations; (b)P800.00 on 27 March 1992; and, (c)P3,500.00 on 3 April 1992, for a certain Jimboy andP500.00 for himself.
On 30 May 1995
this Court en banc resolved[19] to -
(1) require Judge Mariano C. Tupas to EXPLAIN: (a) why he did not decide before he optionally retired CvC 1989, CvC 89-9 and Misc. 93-37, all of which had already been undecide for more than ninety (90) days; (b) why he did not resolve before he optionally retired the Motion to Dismiss in CvC 88-3 which had been left unresolved for more than ninety (90) days; (c) why he did not efficienctly manage the court’s affairs which resulted in the lack of Minutes in all the cases being heard by the court, the topsy-turvy and haphazard manner of stitching the various pleadings to their respective court expedientes, and the non-archiving of criminal case which should have been archived; and (d) why he borrowedP500.00 on April 19, 1991 from the court;s S/A#51-26718-1 in deposit with Rural Bank of Panabo, Davao;
(2) require Victor R. Ginete, Clerk of Court, to EXPLAIN: (a) the shortages ofP12,461.75,P18,377.25,P6,849.65 andP36.00 in the Fiduciary Fund, Judiciary Development Fund, Clerk of Court General Fund and Ex-Officio Sheriff General Fund, respectively, and (b) the borrowing from the court’s S/A in the amounts ofP1,553.00,P300.00 andP4,000.00 made on November 8, 1991, March 27, 1992 and April 3, 1992, respectively, for himself and James Bacaltos, the court’s legal Researcher ; and
(3) require Ms. Delsa M. Flores, the court Interpreter, to explain why she has never made the Minutes for the cases being heard by the court.
In compliance
with the Resolution of 30 May 1995, Judge Mariano C. Tupas, Atty. Victor R. Ginete and Ms. Delsa M. Flores
submitted their respective explanations.
Re: Judge Mariano C. Tupas
In his Letter/
Explanation dated 21 August 1995,[20] retired
Judge Tupas belied the report and claimed that he efficiently managed RTC -Br.
4, Panabo, while he was its presiding
Judge. Admittedly, his Interpreter could not prepare the Minutes
considering that he conducted hearings
in the morning and in the afternoon. Moreover, although he had ordered all
pleadings and other papers to be
properly stitched, the Court Aide could not manage it well as he was new to the
job. Judge Tupas denied borrowing P500.00
from the court’s account with the Rural Bank of Panabo. In support thereof, he
attached a withdrawal slip dated 19
April 1991[21] duly
certified at the back by the bank manager showing that the withdrawal slip was
signed by Atty. Ginete and Ms. Belen Basa. A certification by Ms. Basa to the
effect that Judge Tupas never meddled with the money matters of the court[22] was also
annexed to the Letter/Explanation.
Re:Atty. Victor R. Ginete
For his part,
Atty Ginete made the following clarification in his Letter of 1 August 1995[23]-
1. On the P12,461.75
Shortage in the Fiduciary Fund
The reason why
the receipt evidencing deposits and withdrawal were not on file when the Audit
Team visited them on 13 February 1995 is that it was the practice in RTC of
Panabo to attach all pertinent documents, including those involving fiduciary transactions, to the records of the
case stressing that the court had a caseload of approximately 900 cases and the
receipts had to be retrieved from the carpeta. It was only on 24 February 1995, after diligent
efforts were exerted, that they were able to get some of the pertinent papers
therefrom, e.g., (a) O.R. No. 9875455 dated 14 September 1993 in the in the amount of P2,400.00 issued to
Rolando Mawas in Crim. Case No. 93-175; (b) O.R. No. 9875459 dated 17 November
1993 in the amount of P1,000.00 issued to Fernan Dingle in Crim. Case
No. 3080; (c) o.r. No. 9875460 dated 22 November 1993 in the amount of P500.00
issued to Picat Panaginit in Crim. Case No. 2973; (d) O.R. No. 9875462 dated 29 November 1993 in the amount of P500.00
issued to Danilo Rivera in Crim. Case No. 2973; and (e) O.R No. 9875498 dated
17 June 1994 in the amount of P12,500.00 issued to Efren Saman in Crim.
Case No. 93-176.
Atty. ginete
further claimed that he assumed office without the benefit pf a formal turnover
as then Acting Clerk of Court Leo Cabelloro went on AWOL and was later on
charged with gross dishonesty and gross misconduct by reasons of which he was
dismissed from government service. The S/A No. 51-26718-1 of the court with the
Rural Bank of Panabo is in constinuation of the savings account opened by then
Clerk of Court Caballero.
2. On the P18,377.25 Shortage
in the Judiciary Development Fund
Atty. Ginete
claimed that he was then new in the service when the reported shortage occurred
due to non-remittance of the funds for the year 1991 or 1992. As there was no
PNB or Land Bank in the municipality he
had to deposit whatever funds were collected by him under the savings account
of the court with the Rural Bank of Panabo, withdrawing the corresponding
amount only when it was time to remit. According to him, he remitted P3,696.83
and P3,589.00 for the months of November and December,
respectively, respectively, and the
remaining balance of P12,270,42 was left deposited with PNB, Panabo.
3. On the P6,849.65
Shortage in the General Fund
Atty. Ginete
explained that remittances in the amounts of P456.00 and P430.00
for the months of November and December 1994 were made and the balance was
again deposited under the savings account of the court at the Rural Bank of
Panabo. The reported shortage of P36.00 in the Sheriff General Fund was
also deposited in the bank.
4. On the borrowing from the
saving account of the court in the amount of P1,553.00, P300.00
and P4,000.00
Atty. Ginete
remonstrated that he was of the impression that since treasury checks were
government obligations, he encashed the postdated treasury warrants of Mr. Boyd James B. Bacaltos for
humanitarian reasons as the latter was going to Manila to take the Bar
Examination.
Moreover, Atty.
Ginete updated the Court on the Status of the cases found by the Audit Team to
have been pending beyond the 90-day period: (a) Civil Case No. 89-9 was resolve
on 4 July 1994; (b) Civil Case No. 1989 was not decided because Atty. Pedro C.
Buhion, counsel for the defendant, passed away before formal submission of
evidence as shown in the Order of 13 August 1992 and up to the time of the
filing of Atty. Ginete’s comment, no new counsel had entered his appearance;
(c) Civil Case No. 88-3 was decided on 16 December 1988 based on the Compromise
Agreement submitted to the court; and (d) Misc. Case No. 93-37 was archived as neither the petitioner nor
his witnesses attended the hearings on 30 August 1993, 27 September
1993, 11 October 1993 and 20 October 1993.
Atty. Ginete
claimed that pleadings were properly stitched to their respective expedientes
because RTC Aide Luisito B. Cagape was new in the service and did not yet know
his job well. However, efforts had already been exerted to put the records in
order.
Re: Ms. Delsa M. Flores
On 1 August 1995
Ms. Flores submitted her Comment[24] wherein she confirmed that one of
her principal duties was preparing the Minutes of the Proceedings in every case
but which she could not ably perform due to the volume of cases being handled
by the court (900 more or less) and the setting of hearings morning and
afternoon. She also claimed to have tentatively prepared the Minutes after
every session in order to finalize them later but unfortunately failed to do so
on account of the great number of cases
scheduled daily. According to her, she attended to her duties religiously and
conscientiously since the time her
attention on the matter was called by the Audit Team
On 19 October
1995 the Office of the Court Administrator received the Letter/Comment dated 11
October 1995 of Judge Bernardo V. Salundares,[25] then
stationed at RTC Br. 28, Linga, Surigao del Sur, to the explanations given by
Atty. Ginete and Ms. Flores, copies of which were furnished him.
As regards Ms.
Flores, Judge Salundares avers that she had been remiss in the performance of
her duties from the time she assumed office in the 1991 up to 1995 when the
audit was done. This was proof of her utter laxity and ineptness in records
management which, in turn, was but a reflection of how badly the responsible
court officials exercised personnel supervision in the court.
On Atty.
Ginete’s admission that their copies of the remittances might have been
misplaced when the court transferred to the Hall of Justice in May 1993, Judge
Saludares opined that this was undoubtedly a reflection on the disorderly sytem
of the Office of the Clerk of Court. Judge Salundares further stated that Atty.
Ginete’s claim that the balances on the shortages in the Fiduciary Fund,
General Fund and Judiciary Development
Fund were in the court’s S/A no. 51-26718-1 was still subject to verification.
As to the claim
that the remittances had been delayed because Ms. Belen V. Basa, Clerk-in
Charge-inCharge of the remittance of funds, went on maternity leave from 22
November 1994 to 23 January 1995 and was suffering from a recurring illness,
the same was not a valid excuse as it was Atty. Ginete’s duty to do the job and
that he nevertheless could have delegated the work to another trustworthy
subordinate from his staff.
Judge Salundares
also claimed he had been bypassed in all bank transactions despite constant
reminders. It was only on 26 December 1994 that he wrote the Manager of Rural
Bank of Panabo that there should be no transactions unless his signature
appeared thereon.
Additionally,
Judge Salundares declared that the reason given by Atty. Ginete for the failure
to resolve Civil Case No. 1989 was mainly because of the death of Atty. Buhion
could not be justified because Atty. Buhion died only in March 1995 while the
formal submission of the evidence in the case was ordered by the court as early
as 13 August 1992. As a matter of fact, it was during Judge Salundares’
designation as Acting Judge when the cases submittes for decision were brought
to his attention one after another.
Furthermore,
Judge Salundares maintained that as of 11 October 1995 the Semestral Inventory
of Cases for the period of 1 January to 30 June 1995 had not been formalized.
And while he issued directives to the Clerk of Court for the chronological
arrangement of the pleadings/papers comprising the records of cases, including
proper pagination and stitching, these fell on deaf ears. Atty. Ginete likewise did not observe regular office hours. He reported for work at 9:30 in the
morning at the earliest. After the judicial and financial audit had been
conducted from 13 to 17 February 1995, Atty Ginete even threatened the Judge
with retaliation if he would be made to explain as a result of the audit.
In our
Resolution of 5 September 1995,[26] we
referred the matter to the Office of the Court Administrator for evaluation,
report and recommendation. The Report submitted was not however satisfactory to the Court so that it referred the
case back to the OCA for re-evaluation. We summarize the report and
recommendation of OCA as modified -
1. The amounts
reflected in the official receipts forwarded to OCA on 28 February 1995 have
already been included in the computation indicating a shortage in the Fiduciary
Fund collections of Atty. Ginete. Still, Atty Ginete has to explain the
remaining shortage in the amount of P12,461.75. the computation follows[27]-
Fiduciary Fund -
Unwithdrawn Fiduciary Fund, per records,
31 January 1995P262,800.00
Add: Collection, 1-13 February
1.O.R. Nos. 1315447-450P19,000.00
2.O.R. Nos. 1314701-702 10,000.00
29,000.00
Interest Earned 11,268.51
Less: Withdrawals
1. 10 February 1995P500.00
2. 14 February 1995 2,500.00 (3,000.00)
Unwithdrawn Fiduciary Fund, per records,P300,068.51
14 Febraury 1995
Unwithdrawn Fiduciary Fund, per bank,
14 February 1995 270,706.76
FUND SHORTAGE, as of 14 Febraury 1995P29,361.75
Fund shortage, as above computedP29,361.75
Less: Receipts itemized after a 1st Indorsement dated
28 Febraury 1995 was received at the Office on 2 March 1995
1. OR No. 9875455-09/14/93P2,400.00
2. OR No. 9875459-11/17/93 1,000.00
3. OR No. 9875460-11/22/93 500.00
4. OR No. 9875462-11/29/93 500.00
5. OR No. 9875498-06/17/94 12,500.00
(16,900.00)
ACTUAL SHORTAGE:P12,461.75
2.As to the
Judiciary Development Fund (JDF) shortage, Atty. Ginete probably forgot that he
had already remitted the amount of P13,994.47 for the month of the
January 1995. The amount of P18,377.25 was the shortage as of 7 March
1995 considering the remittances totalling P21,279.47 forwarded to this
Office the remittances totalling P21,279.47 Forwarded to this Office
after the Audit Team returned to Manial. The JDF shortage is reflected in the
following computation[28]
Judiciary Development Fund-
Total collections `P545,843.47
Less: Total Remittances 506, 186.87
FUND SHORTAGE:P39,186.72
Less: After-Audit Remittances For Remitted Amount
Nov/94 03/07/95P3,696.00
Dec/94 03/07/95 3,589.00
Jan/95 03/07/95 13,994.47P21,279.47
ACTUAL SHORTAGE, as of 7 March 1995P18,377.25
3. As to the Clerk of Court General Fund and Ex-Officio Sheriff General
Fund, the remittances made by Atty. Ginete came from his personal funds and not
from the actual monies received by the court in the course of business during
the time of audit.What is required to
be explained is the shortage, not the excess. The following computations[29] are relevant -
A. Clerk of Court General Fund -
Total CollectionsP270,368.56
Less: Total Remittances 263,518.91
FUND SHORTAGE:P6,849.65
Less: After-Audit Remittances made on 7 March 1995P7,317.65
Excess 468.00
B. Ex-Officio Sheriff General Fund -
Total CollectionsP5,333.00
Less:Total Remittances 5,297.00
FUND SHORTAGE:P36.00
Less: After-Audit Remittances made on 7 March 1995P152.00
ExcessP116.00
4. Atty. Ginete may have encashed
the postdated treasury warrants of his co-employees out of “pakikisama” but,
strictly speaking, the encashment is not allowed by the Commission on Audit
(COA).[30] Worse, Atty. Ginete did
not use his own money but the court’s Fiduciary Funds. It is of no moment that
the “borrowings” were subsequently returned.
5. The caseload of RTC - Br. 4,
Panabo, when Ms. Flores entered the service on 16 May 1991 was only 490 cases.
By the end of the year, it was down to 458 cases, then steadily rose to 906 at
the start of February 1995 when Judge Salundares was already the Acting
Presiding Judge. Thus, Mr. Flores’ alibi regarding the sheer volume of cases
that prevented her from preparing the required Minutes is unacceptable since
she was not doing her job even before the number of cases increased.[31]
6. The status of Civil Case No.
89-9, Misc. Case No. 93-37 and Civil Case No. 88-3 was satisfactorily
clarified. However, the fact still remains that when the Audit Team went to
Panabo, the pertinent papers were not attached to the case records.[32]
7. Judge Tupas clearly borrowed
the amount of P500.00 on 19 April 1991 as shown on the notation on a
duplicate for record purposes so that his claims of innocence is obviously
self-serving.[33]
After due
deliberation and a painstaking review of the working papers of the Audit Team
and OCA’s evaluation and re-evaluation, we are fully convinced that the
concerned court officials had been remiss in their respective duties.
With regard to
Ms. Delsa Flores, her case is already moot and academic as she had been
dismissed from the service in Marita Rabe v. Delsa Flores.[34] Nevertheless, it bears
pronouncing once more, as we did in Bandong v. Ching,[35] that -
Among the duties of court interpreters is to prepare and sign “all Minutes of the session.” (Manual for Clerk of Court, 32). After every session they must prepare the Minute and attach it to the record. It will not take an hour to prepare it. The Minutes is a very important document because it gives a brief summary of the events that took place at the session or hearing of a case. It is in fact a capsulized history of the case at a given session or hearing, or it states the date and time of the session; the names of the judge, clerk of court, court stenographer, and court interpreter who were present the names of the counsel for the parties who appeared; the party presenting evidence marked; the names of witnesses who testified; the documentary evidence marked; and the date of the next hearing (Id., 543). In criminal cases, the Minutes also includes data concerning the number or pages of the stenographic notes (Id., 589).
With respect to
Aty. Ginete, the evidence inevitably leaves no doubt that he had been remiss in
the performance of his duties as Clerk of Court, both in the financial and
administrative concerns.
Atty. Ginete
assumed his duties as Clerk of Court and Ex-Officio Sheriff in January 1990. As
Clerk of Court he is also the concurrent cashier and disbursement officer,
thus, it is his duty to collect and
receive by himself or though a duly appointed cashier, all monies in payment of
all legal fees, as well as to receive deposits, fines, and dues.[36]
Administrative Circular No. 31-90 dated 15 October 1990
provides that the accounts accruing to the JDF in the Regional Trial Court
shall be deposited daily with the Philippine National Bank (PNB), an authorized
government depositary bank, or private bank owned or controlled by the
government as may be specified by the Chief Justice :for the account of the
Judiciary Development Fund, Supreme Court, Manila -S/A No. 068-503174-4.” If daily
deposit is not possible, deposits for the Fund shall be made every second and
third Friday and at end of every month, provided, however, that whenever
collections for the Fund reach P500.00, the amount should be deposited
immediately even before the above-indicated dates. If there is no authorized depository bank at the place where the
court is stationed, the collections are to be sent by postal money order
payable to the Chief Accountant of the Supreme Court.[37]
Correlatively, Circular No. 13-92 dated 1 March 1992 states that “in localities
where there are no branches of
authorized government depository banks, or, even if there be branch but it is
impractical, for justifiable reasons, to maintain deposits therein, all
fidiciary fund collections shall be deposited by the Clerk of Court with the
Provincial or Municipal Treasurer. In either case, the Clerk of Court must
first seek a favorable recommendation from the Executive Judge.”
On 30 April 1993
SC Administrative Circular No. 5-93 was issued designating the Land Bank of the
Philippines (LBP) as the depositary bank, in place of PNB, for all amounts
accruing to the Judiciary Development Fund under JDF- Supreme Court - Manila
Savings Account No. 159-01163-1.
The Audit Team’s
Report bares the amounts Atty. Ginete’s accountabilities. That he failed to
diligently follow the procedures contained in the aforestated circulars is
quite evident from the errouneous remittances he had effected, not to menttion
the delays that accompanied them.
Atty. Ginete
incurred a shortage of P12,461.75 in his Fiduciary Fund collections. In
the explanation[38] he claimed to have forwarded O.R. No.9875455 dated 14 September 1993 in
the amount of P2,400.00, O.R. No. 9875459 dated 17 November 1993 for P500.00
and O.R. No. 9875498 dated 17 June 1994 for P12,500.00. Notwithstanding
the aforesiad receipts there is still a shortage of P12,461.75 as the
amount covered by these receipts was already included in the computation of his
Fiduciary Fund Collection earlier reported to his Court. His original shortage
was P29,361.75 and after deducting P16,900.00 (total amount
covering the receipts) there is still a difference of P12,461.75 which
Atty. Ginete has to account for.
With respect to
his JDF collection, Atty. Ginete has a shortage of P18,377.25. He
claimed that he made remittances with PNB Tagum but that copies of these
remittances might have been misplaced when the court transferred to Hall of Justice. He also said that if
only PNB Tagum would extend its cooperation is going over the recordshe could
present proofs of remittances. We are desinclined to accept these claims
considering that SC Adm. Circular No. 5-93 decreed that all JDF collections be
deposited with LBP. His alleged remittance of these collections to PNB
Tagum violated the Court’s directive
and laid him open to saction. Be that as it may, it is clear that he exerted no
effort at all to coordinate with PNB Tagum. In Lirios v. Oliveros[39] we held that a Clerk of Court’s
undue delay in his JDF remittances amounts no less to grave misfeasance, if not
malversation of funds.
Atty. Ginete has
a shortage of P6,849.65 in the Clerk of Court General Fund and P36.00
in the Ex-Officio Sheriff General Fund. However, he made remittances of P7,317.65
and P152.00 on 7 March 1995 for the Clerk of Court General Fund and Ex-Officio Sheriff General Fund. However,
he made remittances of P7,317.65
and P152.00 on 7 March 1995 for the Clerk of Court General Fund and
Ex-Officio General Fund resulting in excess remittances of P468.00 and P152.00,
respectively. It must be noted that temittances so made by Atty. Ginete appear
to have come from his personal funds and not from the actual collections paid
to the RTC in the course of its daily business.
Atty. Ginete
claimed that he belatedly made remittances to cover the amount of the shortages
because Ms. Belen V. Basa, Clerk III, who was tasked to make such remittances went on maternity
leave from November 1994 to 23 January 1995 and had thereafter been suffering
from a recurring illness.
We find his
explanation to be without merit. As Clerk of Court he has general supervision
over all the court personnel. While Ms. Basa appeared to be the collecting
officer it was Atty. Ginete’s duty to see to it that she faithfully performed
her duties and responsibilities as such “to end that there was full compliance
with circulars on deposits of collections.”[40] Besides,
RTC - Br. 4, Panabo, Davao, is a single sala court no designation in its
plantilla of a cashier item, thus making the Clerk of Court personally
responsible for the handling of funds, Definetely, Atty. Ginete must be liable
for the shortages in the amount of P37,724.65.
The Clerk of
Court may not keep funds in his custody as the same should be deposited
immediately upon receipt thereof with the City, Municipal or Provincial
Treasurer where his court is located[41] should there be no branch of the
LBP in the locality. Thus, the failure of Atty. Ginete to remit the funds of
the Municipal Treasurer of Panabo, Davao, constitutes gross neglect of duty,
dishonesty and grave misconduct prejudicial to the best interest of the
service.
Moreover, the
Clerk of Court is an essential officer in any judicial system. His office is
the nucleus of activities, adjudicative and administrative. As such he must be reminded that his administrative
functions are just as vital to the prompt and proper administration of justice.
He is charged with the efficient recording, filing and management of court
records, besides having administrative supervision over court personnel. Clerks
of Court play a key role in the complement of the court and cannot be pernitted
to slacken on their jobs under one pretext or another.[42]
On Atty.
Ginete’s “borrowing” from the savings account of the court with the Rural Bank
of Panabo, Davao, in the amounts of P1553.00, P300.00 and P4,000.00
for himself and for James Bacaltos, Court Legal Researcher, Atty. Ginete’s
explanation that the encashments were
secured with postdated treasury checks is likewise unsatisfactory. The
encashment of treasury warrants is prohibeted by the Commission on Audit.[43] Checks
accommodations are oftentimes done by some accountable officers who encash
current checks and replace them with postdated personal checks so that any spot
audit will not result in their being charged with malversation. In this case,
Atty. Ginete did not use his personal funds to encash Bacaltos’ postdated
treasury checks; instead, he encashed the same by using the court’s fiduciary
funds.
Consequently, we
affirm OCA’s recommended penalty of dismissal to serve as a clear warning to
all Clerks of Court that his Court will not countenance dishonesty and
malversation of funds which definitely disminish the faith of the people in the
judiciary.
A public servant,
like the Clerk of Court, must exhibits at all times the highest sense of
Honesty and integrity. By Atty. Ginete’s failure to properly remit the cash
collections that are public funds he transgressed the trust reposed in him as
cashier and disbursement officer of the court.[44]
In Teresita
Astillazo v. Rolando Jamlid, Clerk of Court, RTC-Pena randa, Nueva Ecija[45] we stressed that:
Pursuant to Section 23, Rule XIV of the Omnibus Rules implementing Book V of Executive Order 292, gross negligence in the performance of duty, dishonesty and grave misconduct are clasiffied as grave offenses for which the penalty of dismissal is imposed. Section 9 of the said Rule likewise provides that “the penalty of dismissal shall carry with its cancelation of eligibility, forfeiture of leave credits and retirement benefits and the disqualification for re-employment in the government service. Further, it may be imposed without prejudice to criminal liability.”
In Dioquino v.
Martinez[46] we categorically stated that the
“practice of appropriating trust funds for unauthorized expenses, although
repalced when the same is demanded, is fraught with danger, and should not be
indulged in by any public officer worthy of the name” The Fiduciary Fund from
which Atty. Ginete effected the “borrowings” in question is in the nature of
trust fund which should not be withdrawn in the absence of a court order. There
is no doubt, therefore, that in the case of Atty. Ginete, the penalty of
Dismissal is well-founded.
The matter is
missing files, haphazard recording and deficient court Minutes is properly the main responsibility of the Clerk
of Court as he is administrative officer of the court and is thus the one with
the control and supervision over all court records, exhibits, dicuments,
properties and supplies. However, he is subject to the control and supervision
of the presiding Judge.
A Judge
presiding over a branch of a court is, in legal contemplation, the head
thereof. To say that he is not would make him a mere figurehead, without
effective control over the employees working under him and without authority to
discipline them. This, of course, would be an intolerable situation.[47]
Thus, the Judge,
along with the Clerk of Court, is mandated by Administrative Circular No.1
dated 28 January 1988 to make an inventory of all cases - pending, submitted
for decision, or archived. Part of the inventory process is necessarily the
checking of court records - whether
they are missing, done in a haphazard manner or needing resolution - and mending
of the situation. Consequently, two (2) weeks are taken off the trial calendar
every semester to accomodate the inventory. This, Judge Tupas and Clerk of
Court Ginete did not do diligently.
Neither is the
daily hearing of cases in the morning and afternoon an excuse for laxity in the
keeping of records, as par. 2.3 of the same Circular provides, “(t)he
preparation of the court calendar should not be left entirely in the hands of
the Clerk of Court but must be closely supervised by the Presiding Judge. A rational
calendar plan should be followed so that each case in the calendar is assured
of a hearing on the scheduled day of trial.
To top it all,
Judge Tupas likewise borrowed from the court’s funds. It matters not that these
personal borrowings were paid as what counts is the fact that these funds were
used outside of official business. Rule 5.04, Canon 5, of the Code of Judicial
Conduct unequivocally states that “(a) judge or any immediate member of the
family shall not accept a gift, bequest, favor or loan from anyone
except as may be allowed by law” (emphasis supplied)
In his Comment,
Judge Tupas denied having borrowed P500.00 from the court’s S/A No.
51-26718-1 with the Rural Bank of Panabo on 19 April 1991. As proof thereof, he
attached a xerox copy of the withdrawal slip duly certified by the bank
manager showing that the slip was signed by Atty. Victor R. Ginete and Ms.
Belen Basa, a court personnel. He also submitted a certification by Ms. Basa to
effect that he never borrowed P500.00.
The audit Team
however found a duplicate copy of the deposit slip inside the drawer of Ms.
Basa which bore the notation: “Payment on the P500.00 withdrawn by Judge
Tupas.”[48] This is a
clear indication that Judge Tupas borrowed P500,00 on 19 April 1991 from
the court’s fiduciary funds despite his foolhardy claim of innocence.
On 23 August
1994 the Court en banc in A.M. No. 8381-Ret. - Re: Application for
optional retirement of Judge Mariano C. Tupas, resolved among others to RETAIN
the amount of Fifty Thousand Pesos (P50,000.00) from the retirement
benefits due Judge Tupas pending the outcome of this administrative case filed
against him.
While the Court
will not anymore dwell on the abject state of Affairs of RTC-Br. 4, Panabo,
Davao del Norte, under the leadership and direction of Judge Tupas who has
already retired, nevertheless it underscores the need for all judges to adopt
and implement effective management techniques and procedures in their
respective jurisdictions. There is no gainsaying the snowball effect of the failure
of a judge to exercise authoritative control and supervision over his court
personnel and court processes. The whole system may simply break down. It is
thus exigent that the Office of the
Court Administrator appropriately addresss the administrative problems of trial
courts, particularly those uncovered in this case, viz., inefficient and
improper handling, nay, mismanagement of expedientes, docket books and
other court documents and papers; lackadaisical or perfunctory enforcement of
rule on financial accountabilities and related obligations of court officers
and employees; and, the need for judicial inventory prior to the resignation or
retirement of judges and court
personnel. Unless the reins of control and supervision over the administrative aspect
of the adjudicatory process are tightened, the swift and efficient delivery of justice will impeded and rendered
illusory.
WHEREFORE, the
Court finds retired Judge Mariano C. Tupas guilty of grave misconduct
and gross negligence in the performance of his duties as Presiding Judge of the
Regional Trial Court, Branch 4, Panabo, Davao del Norte, and FINES him
Twenty Thousand Pesos (P20,000.00) which shall be taken from the amount
of P50,000.00 ordered withheld per Resolution of this Court en banc dated
23 August 1994 in A.M. No. 8381. The remaining amount of P30,000.00 may
now be released to Judge Tupas unless otherwise withheld for some lawful cause.
Clerk of Court
Victor R. Ginete is DISMISSED from the service with forfeiture of all leave
credits and retirement benifits with prejudice to reemployment in any
government office or agency including
government owened or controlled corporation. He is further DIRECTED to REMIT
the amount of Thirty-Seven Thousand Seven Hundred Twenty-Four Pesos and
Sixty-Five Centavos (P37,724.65) representing the shortages he incurred as herein determined in the
following manner: (a) The amount of Twelve Thousand Four Hundred and Sixty-One Pesos and Seventy-Five Centavos (P12,461.75)
representing the Fiduciary Fund shortage must be deposited with the Land Bank
of Philippines, Panobo Branch, Davao del Norte, if there is such branch,
otherwise, with the Municipal Treasurer
of Panabo, within thirty (30) days from notice . The Official Receipt for such
deposit must be submitted to this Court; and, (b) The remaining amount of Twenty-Five Thousand and Sixty-Two Pesos and
Ninety Centavos (P25,262.90) must be deposited with the LBP branch under
the name of Judiciary Development Fund, otherwise remitted by Postal Money
Order to the Cashier of this Court also
within thirty (30) days notice.
To secure a more
effective and systematic management of all trial courts, the Office of the
Court Administrator is DIRECTED to prepare and submit to the Court within sixty
(60) days from notice appropriate draft circulars aimed to prevent the
recurrence of problems in court management such as those above described,
subject to the approval of the Court.
Let copies of
this Resolution be furnished the Office of the Bar Confidant and the Integrated
Bar of the Philippines for record purposes.
SO ORDERED.
[1] Filed 16 August 1985, submitted 13 August 1992.
[2] Received on appeal 3 October 1989 submitted upon
receipt of memorandum per Oder of the same date.
[3] Filed 26 July 1993, submitted upon receipt of
petitioner’s written pffer of evidence per Order of 13 May 1994.
[4] Received on appeal 30 October 1994, submitted 1
December 1994.
[5] Joint Motion to Dismiss filed 24 February 1988,
submitted 30 September 1991.
[6] Filed 23 June 1993, submitted 22 December 1994.
[7] Filed 11 July 1990, submitted 26 December 1994.
[8] Filed 9 June 1994, submitted 29 December 1994.
[9] Filed 30 September 1993, submitted 16 January 1995.
[10] Filed 3 December 1990, submitted 13 January 1995.
[11] File 13 April 1994, submitted 27 January 1995.
[12] File 10 May
1991, submitted 16 January 1995.
[13] File 8 September 1992, submitted 27 January 1995.
[14] Opposition and Urgent Motion to Quash
attachment Levy file 25 October 1985,
submitted 13 February 1995.
[15] Motion for reconsideration file 5 October 1994,
submitted 27 January 1995.
[16] Civil Cases Nos. 93-20, 94-57, 92-17, 89-37, 94-26,
94-25, 94-20, 92-22, 92-19, 92-16, 92-10, 93-24, 93-23, 93-19, 93-73, 93-57,
94-09, 94-11, 93-07, 93-05, 92-52, 92-49, 92-36, 92-30; Special Proc. 91-09,
92-01, 93-37, 92-15, 92-14, 94-02, 93-14, 93-12, 94-12, 94-10, 93-08, 93-05, 93-02,
93-01, 89-09; Mics. Cases 94-64, 94-11, 94-04, 94-46, 93-12 , 92-28, 94-06,
93-14, 93-46, 92-37; Special Civil Action 94-09.
[17] Atty. Ginete’s last Monthly Report for Fiduciary
Fund was dated June 1994.
[18] Despite SC Circular No. 8-A - 93 pf 21 April 1993
directing the deposit of all accounts from bail bond, rental deposits and other
fiduciary collections with the Land Bank of the Philippines as
directed by Circular No. 13-92 of 1 March 1992.
[19] Rollo, pp.5-6.
[20] Id., pp. 44-53.
[21] Id., p. 51-A, Annex “D”
[22] Id., p.52; Annex “E”
[23] Id., pp. 7-17-A.
[24] Rollo, p.36.
[25] Id., pp. 94-99.
[26] Rollo.,p. 18.
[27] Id., pp. 112-113.
[28] Id., p. 114.
[29] Id., pp.116-117.
[30] Id.,p. 118, citing COA Audit Memo No. 84-373,
23 January 1984, Chapter 4, Sec. A, Par. 2 (a).
[31] Id., pp. 119-120.
[32] Id., pp. 121-122.
[33] Id.,pp. 124-125
[34] A.M. No. P-97-1247 prom. 14 May 1997.
[35] A.M. No. P-95-1161, 23 August 1996, 261 SCRA 10, 14.
[36] Manual for Clerks of Court, Chapter VII, Secs. A(1)
and B, pp.121-123.
[37] See JPDIO v.
Calaguas, A.M. No. P-95-1155, 15 May 1996. 256 SCRA 690.
[38] Rollo, pp. 7-8.
[39] A.M No. P-96-1178, 6 February 1996, 253 SCRA 258,
263.
[40] In Re: Priscilla Hernandez of RTC, Tangub City, Mis.
Occidental, A.M. No. 94-9-297-RTC, 22 December 1994, 239 SCRA 350,355.
[41] Ferriols v. Hiam, A.M. No. P-90-414, 9 August 1993,
225 SCRA 205, 210.
[42] Callejo, Jr. v. Garcia, Adm. Case No. P-88-198, 25
February 1992, 206 SCRA 491, 496.
[43] See Note 30.
[44] See Chapter VII, Sec. B, Manual for Clerks of Court,
July 1991, p. 123.
[45] A.M. No. P-95-6-55-MTC, prom. 28 July 1997, p. 15.
[46] A.M. No. P-195, 10 May 1976, 71 SCRA 93, 102.
[47] Garcia v. Teehankee, No. L-28747, 28 April 1969, 27
SCRA 1142, 1145.
[48] Rollo.,pp.128-129.