Philippine Supreme Court Resolutions > Year 2007 > November 2007 Resolutions > [A.M. No. P-05-2011 [Formerly OCA IPI NO. 04-1961-P] : November 19, 2007] JUDGE SOLIVER C. PERAS V. PRIMITIVE A. SUMAYO, CLERK III, RTC, BR. 10, CEBU CITY :

Quoted hereunder, for your information, is a resolution of this Court dated 19 November 2007:

A.M. No. P-05-2011 [Formerly OCA IPI NO. 04-1961-P] (Judge Soliver C. Peras v. Primitive A. Sumayo, Clerk III, RTC, Br. 10, Cebu City). - This resolves the administrative complaint dated 23 April 2004 filed by Hon. Soliver C. Peras, Presiding Judge, Regional Trial Court (RTC) of Cebu City, Branch 10 against Primitivo A. Sumayo, Clerk III of the same court for acts which are grossly inimical to the service and requesting that the latter be replaced.

In his Letter-complaint,^[1] complainant alleged that respondent had been unresponsive to suggestions that led to the ineffective performance of his duties. His refusal to render overtime work and his lackadaisical attitude resulted in the resetting of cases. He had also been observed to be consistently leaving the office on undertime, as he is reportedly managing an internet cafe and that he has been spending a lot of time at the Office of the Clerk of Court instead of doing his duties at his workstation. Complainant had received several reports that respondent had been representing himself to relatives of litigants interested in facilitating their motion for reduction of bail or withdrawal of cash bond, for a commission.

Complainant alleged that a certain Belen, a relative of the accused in one criminal case, approached him stating that she had given P4,000.00 to respondent as cash advance for the surety bond as the latter had informed her that complainant had already approved the accused's motion for reduction of bail. She further asseverated that respondent contacted her regarding the same and that she should give him the balance of P11,500.00 for the surety bond at the internet cafe he is managing. Complainant denied that he approved the motion considering that the prosecution had just filed its comment. He then showed her the records of the case.

Considering the heavy workload in Branch 10 and its overworked personnel, complainant prayed that someone from the Office of the Clerk of Court be assigned to Branch 10 to replace respondent.

In his Comment,^[2] respondent expressed his gratitude for being employed in Branch 10. He narrated the series of misfortunes he had experienced in the past years beginning from the time his wife acquired breast cancer up to the time she passed away. He claimed that his personal problems had somehow affected his efficiency at work and he was appreciative of the help and assistance his co-employees had extended to him while he was coping with the loss of his wife. He admitted that he was managing an internet cafe and had encountered problems with its setup causing him to work undertime several times. He however denied that he solicited money from Belen. He averred that he assisted litigants who asked for assistance in their motions for reduction of bail but that he did so pro bono. He explained that upon inquiry of Belen, he informed her that the usual amount of the bond would require a premium of P11,500.00 if the bond would be fixed at P40,000.00 for the surety or P20,000.00 for cash. He claimed that it was Belen who gave him P4,000.00 for safekeeping for fear that she might be tempted to spend it. He refused at first, but later acceded to her sincere appeal and signed a receipt for the same amount which he made available anytime until Belen should have perfected the bond. He further stated that he was not around when Belen approached complainant.

In its Report,^[3] the Office of the Court Administrator (OCA) observed that respondent's admission of leaving the office on undertime was sufficient to hold him liable for violating the following, to wit:

1)	Par. 3 of Administrative Circular No. 1-99, which slates that court officials and employees must "strictly observe official time"
2)	Administrative Circular No. 2-99, which slates that "inherent in this mandate is the observance of prescribed office hours and the efficient use of every moment thereof for public service..."
3)	Sec. 1, Canon IV of the Code of Conduct of Court Personnel (A.M. No. 03-06- 13-SC), which states "court personnel shall at all times perform official duties properly and with diligence. They shall commit themselves exclusively to the business of their offices during working hours"
4)	Par. B (14) of Sec. 46, Chapter 7, Title 1, Subtitle (A) [Civil Service Commission], Book V of Administrative Code of 1987 (Executive Order No. 292), which stales that "frequent unauthorized absences or tardiness in reporting for duty, loafing or frequent unauthorized absences from duly during regular office hours'" is a ground for disciplinary action.[4]

Noting that the other charges against respondent involve factual issues that cannot be resolved based on the available records, the OCA made the following recommendations, thus:

1)	That the instant administrative complaint be REDOCKETED as a regular administrative matter;
2)	That Primitivo A. Sumayo be found GUILTY of LOAFING OR FREQUENT UNAUTHORIZED ABSENCES FROM DUTY DURING REGULAR OFFICE HOURS;
3)	That Primitivo A. Sumayo be SUSPENDED for SIX (6) MONTHS AND ONE (1) DAY WITHOUT PAY AND STERNLY WARNED that a repetition of the same or similar act in the future would be dealt with more severely; and
4)	With respect to the other charges, the same be REFERRED to the Executive judge of the Regional Trial Court, Cebu City, for reinvestigation, report and recommendation within sixty (60) days from receipt thereof.[5]

On 1 June 2005, the Court resolved to redocket this case as a regular matter and referred the matter to the Executive Judge of the RTC of Cebu City for investigation, report and recommendation.^[6]

After due hearing, the Investigating Judge^[7] submitted his Report^[8] with the following findings and recommendations:

The findings will deal only on the other charge, specifically, that Sumayo received P4,000.00 and later asked for P11,500.00 from a relative of the accused in a criminal case, who was seeking his help to have his bail reduced.

Judge Peras acknowledged that he could not substantiate this charge on account of his inability to bring his witnesses to the investigation. There is, however, Sumayo's admission that he received the P4,000.00 entrusted to him by Belen, the relative of Jeffrey Pabalati, who was accused in a criminal case. Sumayo admitted that he received the money just for safekeeping because of Helen's insistence, afraid that, with the long holidays of the Holy Week in the offing, she might be tempted to use it. Sumayo's act of keeping the money does cause one to raise the eyebrows. But since Belen was not presented, we can only go by Sumayo's claim, that he only had the desire to help when eventually he agreed to hold the money for Belen.

For lack of evidence, it is recommended that this particular charge be dismissed.^[9]

In a Resolution^[10] dated 22 March 2006, the Court required the parties to manifest whether they were willing to submit the case for decision based on the records, within ten (10) days from notice.

In his Compliance,^[11] respondent reiterates that the charges against him stemmed from complainant's misconception of his acts which were twisted by a person who did not even surface during the investigation to substantiate the acts maliciously imputed to him. He begs for humane consideration from the Court as he is the sole breadwinner for two teenaged children.

For his part, complainant manifests that after further and discreet investigation on the matter, he discovered that Belen had played up the discrepancy of respondent. He alleges that Belen had passed on the impression to several litigants in cases before Branch 10 that she was close to complainant and could negotiate the favorable outcome of cases. Complainant further avers that he could no longer locate Belen. Under the circumstances, complainant concludes that respondent deserves another chance and that the latter should not be deprived of a job for one mistake that had been magnified by the malicious intent of Belen in trying to build for herself a sort of influence with the complainant.^[12]

It bears stressing that the outcome of an administrative action cannot depend on the will or pleasure of the complainant who, for reasons of his own, may condone what may be detestable.^[13] Certainly, complainant's statements in his manifestation cannot in any way alter the findings of the OCA nor can it divest this Court of its jurisdiction, under Section 6, Article VIII of the Constitution, to investigate and decide complaints against erring employees of the judiciary. To rule otherwise would undermine the discipline of court officials and personnel.^[14]

Thus, we resolve.

We adopt the findings and recommendations of the OCA and of the Investigating Judge to be in accordance with law and the facts of the case, but modify the corresponding penalty.

In administrative proceedings, the complainant has the burden of proving, by substantial evidence, the allegations in the complaint.^[15] Here, complainant failed to discharge such burden. However, by respondent's own admission, he is liable for loafing or frequent unauthorized absences from duty during regular office hours. Respondent's act of leaving the office during office hours to attend to his personal business necessarily hampers his efficiency as Clerk III especially when, as reported by complainant, Branch 10 is burdened with such a heavy caseload that all the other personnel had to work on overtime even on weekends. It bears stressing that the conduct and behavior of everyone connected with an office charged with the dispensation of justice, from the presiding judge to the lowest clerk, arc circumscribed with the heavy burden of responsibility.^[16] This Court cannot countenance any act or omission on the part of all those involved in the administration of justice which would violate the norm of public accountability and diminish or even just tend to diminish the faith of the people in the judiciary.^[17]

Nevertheless, respondent's admission of his shortcomings, repentance and sincere promise to reform his attitude towards his job arc good signs that he is remorseful for what he did. In addition, this is his first offense. In several instances,^[18] we have considered such circumstances to mitigate respondent's liability. While this Court is duty-bound to sternly wield a corrective hand to discipline its errant employees and to weed out those who are undesirable, this Court also has the discretion to temper the harshness of its judgment with mercy.^[19]

The offense of Loafing or Frequent Unauthorized Absences from Duty during Regular Office Hours is penalized by suspension for six (6) months and one (1) day to one (1) year for the first offense. Considering the foregoing, we deem that suspension for one (1) month will suffice.

WHEREFORE, the recommendations of the OCA are APPROVED WITH MODIFICATION. Respondent Primitivo Sumayo is found GUILTY of Loafing or Frequent Unauthorized Absences from Duty during Regular Office Hours. Accordingly, said respondent is ordered SUSPENDED for a period of one (1) month with a warning that a repetition of the same or similar acts will warrant a more severe penalty. The other charges against him are hereby DISMISSED for lack of evidence.

Endnotes:

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^[1] Rollo, pp. 2-3.

^[2] Id. at 7-9.

^[3] Id. at 13-15.

^[4] Id. at 14.

^[5] Id. at 15.

^[6] Id. at 16.

^[7] Hon. Simeon Dumdum, Jr., Executive Judge, Regional Trial Court, Cebu City.

^[8] Rollo, pp. 19-22.

^[9] Id. at 22.

^[10] Id. at 40.

^[11] Id. at 41-42.

^[12] Id. at 49.

^[13] Licudine v. Sawuilayan, A.M. No. P-02-1618, 14 February 2003.

^[14] Pineda v. Judge Pinto, A.M. No. RTJ-04-1851, 13 October 2004, 440 SCRA 225.

^[15] Morales, Sr. v. Judge Dumlao, 427 Phil. 56, 62 (2002).

^[16] Gutierrez v. Quitalig, 448 Phil. 469 (2003).

^[17] Concerned Citizen of San Francisco, v. Judge Pullos, 465 Phil. 9, 23 (2003); Roque v. Matero, 328 Phil. 1096 (1996); Re: Report on Habitual Absenteeism of Ms. Sabido, 312 Phil.513, 517 (1995); Sy v. Academia, Adm. Matter No. -87-72, 3 July 1991, 198 SCRA 705, 717.

^[18] Office of the Court Administrator v. Breta, A.M. No. P-05-2023, 6 March 2006, 484 SCRA 114; Arcenas v. Judge Avelino, A.M. No. MTJ-05�1583, 11 March 2005, 453 SCRA 202; Judge Aquino v. Fernandez, 460 Phil. 1, 13 (2003); Sps. Coraje v. Braceros, 361 Phil. 40, 43 (1999).

^[19] Judge Aquino v. Fernandez, supra.