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ADMINISTRATIVE ORDERS
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ADMINISTRATIVE ORDER NO. 118 -
IMPOSING ADMINISTRATIVE PENALTIES ON MAXIMO B. LIM, REGIONAL DIRECTOR,
REGIONAL OFFICE NO. VIII, MELENCIO BALANAG, REGIONAL DIRECTOR, REGIONAL
OFFICE NO. XII AND BIENVENIDO ELORCHA, ASSISTANT REGIONAL DIRECTOR,
REGIONAL OFFICE NO. VIII, DEPARTMENT OF LABOR AND EMPLOYMENT
This refers to the administrative cases
against three (3) officials of the Department of Labor and Employment
(DOLE), namely: MAXIMO B. LIM, Regional Director, Regional Office No.
VIII, MELENCIO BALANAG, Regional Director, Regional Office No. XII and
BIENVENIDO ELORCHA, Assistant Regional Director, Regional Director,
Regional Office No. VIII.
Records yield the following facts:
On September 23, 1992, Undersecretary Cresencio B. Trajano, Resident
Ombudsman of DOLE, charged, among others, Lim and Elorcha with
dishonesty, grave misconduct and gross negligence for the loss of
P345,000.00 in the general fund of Regional Office No. VIII, Tacloban
City including remittances to the Government Service Insurance System
and the PAG-IBIG fund.
On the same date, the DOLE Secretary issued an order directing Lim and
Elorcha to file their respective answers to the charges within five (5)
days from receipt of said order. Simultaneously a team was directed to
investigate the alleged anomalies.
On December 15, 1992, the investigation team submitted a final
investigation report finding Lim guilty of eight (8) counts of gross
negligence, upon the following findings and/or committed as follows:
a.
b.
c.
d.
e.
f.
g.
h.
The DOLE Secretary recommended that Lim be meted the penalty of one (1)
year suspension (after considering his 14 years of service) for gross
negligence, stating that:
"5.
"6.
"7.
"8.
The same investigation report found Elorcha guilty of grave misconduct for the payment of the FY 1991 clothing allowance of DOLE regional employees out of FY 1992 funds.
With respect to Balanag, records show that, per investigation, he exceeded his authority when he purchased P93,620.00 worth of radio receivers and accessories . . . "/when/ per Memorandum dated December 2, 1987 of then Undersecretary Dionisio dela Serna, he was only allowed to spend 20,000.00 of MOE funds for that purpose."
DOLE Secretary Nieves Confessor, in a memorandum dated February 16, 1993, recommended that Lim be adjudged guilty of one (1) count of gross negligence and that he be meted a penalty of one year suspension (after considering his 14 years of service), observing that:
"11.
'Every payment made in violation
of the General Appropriations Act is illegal and every official or
employee authorizing or making such payment, or taking part therein,
and every person receiving such payment shall be jointly and severally
liable to the government for the full amount so paid or received; that
any official or employee of the government knowingly incurring any
obligation or authorizing any expenditure in violation of the
provisions thereof shall be dismissed from the service, after due
notice and hearing by the duly authorized appointing official.'"
The DOLE Secretary also recommended that Balanag be found guilty of grave misconduct for having violated the General Appropriations Act, and be penalized with one (1) year suspension.
In compliance with the Order of this Office, dated March 17, 1993, Lim, Elorcha and Balanag filed their respective answers, pertinent portions of which read:
LIM:
"43.
"44.
xxx
"46.
"The fact that the
Administrative Officer counter-signed the same as recommending
authority while she was on leave in no way affects its validity. The
administrative officer countersigned the checks as a matter of
convenience probably because she is one of the authorized signatories
recognized by our service bank.
"Note
that payment for salaries is a regular mandatory obligation of the
government to its employees. The recommendation and the consequent
approval of the checks for the payment of compensation does not involve
acts of discretion. The approval of the same is ministerial act.
"The six checks were therefore
approved by respondent Lim within the scope of his authority as
Regional Director.
"What the Secretary of Labor
failed to appreciate is, that Respondent, knowing fully well that the
head of office is the sole authority to approve the checks, assumed
full responsibility for the consequences of such approval,
notwithstanding the fact that the administrative officer was on leave.
"The ministerial approval of the
checks were merely a culmination of a process of obligating the
allotment of funds for the purpose by the accountant, preparation of
the vouchers and payrolls by the cashier and the review of the results
by the Administrative officer who recommends as a matter of course the
obligation for payment to the Regional Director.
"The operational effect of
Diloy's signature in the check is simply to confirm that these
processes are in order. After which it becomes now merely ministerial
for the Assistant Director to countersign the checks and for Respondent
Lim to approve the same. Note that this partakes of the nature of a
priority mandatory obligation."
ELORCHA:
"Thus,
in the unlikely recommended charge of grave misconduct allegedly
committed by the undersigned in relation to this payment of the 1991
clothing allowance out of the 1992 funds, he respectfully submits for
consideration copy of the voucher marked as Exhibit '9' for said
allowance prepared on 29 November 1991 where it was apparent that the
purpose was 'to cash advance to defray our clothing allowance for the
year 1991 in the amount of . . . SIXTY EIGHT THOUSAND PESOS
(P68,000.00),' and that it was certified by the Accountant as
'adequately funded'. Xerox copy of the 'Request for Obligation of
Allotment' is likewise attached as Exhibit '9-a' whereby as requested
by the Budget Officer Nimfa T. Seno, the Chief Accountant Imelda B.
Alcaraz, certified that 'unobligated allotment are available for the
obligation herein described in the amount specified above', and the
description of the obligation was 'to cash advance to defray for our
clothing allowance. . ..'
"Under all circumstances,
whenever payrolls, vouchers, checks and other official documents are
presented to the undersigned, in the absence of the Regional Director,
and where these are presented in a given statement of facts and in a
prescribed form, the same are presumed to have passed upon the
regularity of office functions. And honestly believing his co-employee
strictly adhered to existing rules and policies in obedience to the
mandate of legal authority, the undersigned would have no alternative
but to exercise the ministerial duty reposed upon him. Upon the face of
the documents prevented by the technical personnel, undersigned was
misled into honestly believing that part of the amount for the payment
of the 1991 clothing allowance was in order."
BALANAG:
"On
November 27, 1986, the DOLE Regional Office requested authority from
the Secretary to use the regular MOE funds in the amount of P20,000.00
for the purchase of four to five VHF handsets and accessories which was
approved under a Memorandum dated December 2, 1987 issued by then
Undersecretary Dionisio C. de la Serna, acting for the Secretary in his
capacity as Undersecretary for Regional Operations and by virtue of
Sec. 11 (f) of the General Appropriations Act on the 'Use of
Savings' and along the principle that the Secretary is the alter ego of
the President. On the basis of said authority, four (4) units of VHF
hand-held transceivers together with some accessories were purchased
from Transcommunication & Electronics Specialist Sales. These
transceivers were then the subject of an application for Registration
of Radio Transmitter/Transceiver during the middle part of 1988,
sometime July & August, in order to avail of the amnesty granted to
VHF radio transceiver holders who did not possess the authority to
purchase such equipment prior to their actual acquisition. This
explains why the application for registration indicated 'already
acquired' instead of directly naming the source.
"Sometime
in 1989, out of the capital outlay for radio telecommunications
amounting to P33,000.00, two (2) units of ICOM Base and a number of VHF
hand-held sets were also acquired by the office. All these units were
duly registered with the NTC as a basic requirement for the approval of
the establishment of DOLE Region XII's radio network. Consequently,
therefore, a Radio Station License was issued to DOLE XII on December
12, 1989. It is worthwhile elucidating that not all the items contained
in the property inventory list of Region XII for the year 1990, more
particularly the VHF accessories, were purchased out of the capital
outlay funds. The law does not prohibit the purchase of the accessories
out of the regular MOOE funds."
When respondent Lim affixed his counter-signature on the pertinent checks, he knew or at least supposed to know that his co-signatory's (Administrative Officer Diloy's) signature thereon was flawed, the latter being on a leave of absence at that time. I agree with the DOLE Secretary in finding respondent Lim guilty of gross negligence in having signed the said checks on August 10, 1992, being fully aware that co-respondent Diloy was without authority at that time to sign checks as she was on official leave.
Respondent Elorcha's explanation vis-a-vis the payment of the CY 1991 clothing allowance out of the CY 1992 appropriated funds is that the corresponding voucher was certified by the Accountant as adequately funded." Elorcha, as he claims, had no participation in the "collusion and concealment of the misdeeds of the IMSD personnel," he should have had questioned the obvious irregularity of the payment.
As found by the office a quo, respondent Elorcha violated Presidential Decree No. 1177, particularly Sec. 49 thereof, in countersigning the check no. 830299, dated January 10, 1992 when he knew that the Request for Obligation of Allotment (ROA) for the said clothing allowance was made by the Budget Officer on January 9, 1992. Hence, at the time the subject voucher, covering the CY 1991 clothing allowance was issued on November 29, 1991, no funds was available for the payment thereof.
The circumstances alone that Elorcha countersigned the check does not, I agree, per se make him culpable. As an executive officer, however, his office extends to guarding against irregularities which may involve or lead to corruption. I am nagged by the fact that the respondent did not take that extra effort befitting a responsible manager to make inquiries that something had been amiss somewhere.
Respondent's inaction, i.e. his failure to question the voucher and the check for his counter-signature, which appears irregular, amounts to negligence and dereliction of duty which he cannot be fully exonerated from nor be held entirely blameless where he failed to exercise proper supervision over his subordinates.
Apropos respondent Balanag's case, records do not show that he was formally charged. However, he received the Order of this Office dated March 17, 1993, furnishing him with a copy of the memorandum of the DOLE Secretary containing the charge of "grave misconduct" and directed to answer the said charge. . . . There is no violation of procedural due process even where no hearing was conducted for as long as the party was given a chance to present his evidence and defend himself (Domingo vs. DBP, 207 SCRA 766).
I find respondent's answer wanting in explanation as to his inculpability of the charged aforementioned. A perusal of the report of Labor Assistant Secretary Liwayway M. Calalang in her memorandum of July 12, 1991, pertinently stated below, convinces me of respondent Balanag's violation of the General Appropriation Act:
"3.
Based on the above findings, it can be deduced that the document submitted were made long after the transaction was affected to prove the purchase of supplies.
"4.
"5.
"6.
"It is very clear therefore that
the RO incurred an unauthorized disbursement for capital/equipment
outlay in the amount of P60,620 as shown below:
"The 'purchase' of supplies from
Elena V. Co Hardware amounting to P62,848.95 apparently was made to
cover up for the unauthorized purchase of radio transceivers amounting
to 60,620."
While then DOLE Undersecretary Dionisio dela Serna reposed upon Balanag the authority to purchase radio telecommunications equipment, I note that the latter's authorization was for an amount not to exceed P20,000.00 out of department funds. From the foregoing report, it is clear that Balanag's purchases of the subject equipment totalled P60,620.00. Respondent Balanag exercised his authority in a capricious and whimsical manner amounting to misconduct in incurring unauthorized disbursement for capital/equipment outlay of P60,620.00 or P40,620.00 beyond the limit allowed him. Misconduct connotes a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer. (Moreno, Philippine Law Dictionary Moreno, 1972 edition at p. 394) A public officer who goes outside the scope of his duty is not entitled to protection on account of his office and is liable for his acts like any private individual (Martin on Administrative Law, Law of Public Officers and Election Law, 1983 edition at p. 323).
WHEREFORE —
1.
2.
3.
Accordingly, as recommended by the Labor Secretary, the three (3) respondents are hereby suspended for one (1) year without pay, with a stern warning, however, that a repetition of the same or similar acts will be dealt with more severely.
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