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[A.M. No. P-01-1457.February 5, 2001]

ARIEL ABARCA vs. ROMEO B. ASIRIT, et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated FEB 5 2001.

A.M No. P-01-1457 ( Ariel Abarca v. Romeo B. Asirit, Sheriff IV, and Jose R. Martin, Clerk III, both of RTC-Br. 19, Cauayan, Isabela.)

Complainant Ariel Abarca charged Romeo B. Asirit, Sheriff IV, and Jose R. Martin, Clerk III, both of the RTC-Br. 19, Cauayan, Isabela, with Gross Misconduct and Conduct Prejudicial to the Best Interest of the Service for allegedly using force, intimidation and coercion in harvesting and carting away the palay planted by complainant on the land subject matter of Civil Case No. Br. 19-879, "Serapio Mangabat v. Ariel F. Abarca," of the RTC-Br. 19, Cauayan, Isabela, and with respect to respondent Jose R. Martin, for allegedly drinking liquor with pulutan with his police escort on the occasion thereof. ¹ Affidavit-Complaint dated 22 March 1999.

Specifically complainant alleged that he was the defendant in Civil Case No. Br. 19-879 for repurchase of the land subject matter thereof, which was adversely decided against him by the RTC-Br. 19, Cauayan, Isabela; that a writ of execution pending appeal was granted plaintiff upon his motion; that on 13 March 1999 respondent Sheriff Romeo Asirit and several companions, through force, intimidation and coercion, harvested and carted away one hundred thirty-two (132) cavans of palay planted on his land subject matter of the civil case; that on 22 March 1999 respondent Jose R. Martin returned to harvest the remaining palay and threatened complainant and his farmworkers with arrest should they continue harvesting; that respondent Martin and his hirelings, through force intimidation and coercion, succeeded in harvesting and carting away the remaining palay; that respondents had no authority to harvest and cart away the palay since the decision in the civil case did not decree that the standing palay be taken; and finally, that respondent Martin, Police Officers Abe Lampitoc and Domingo Pascua, and a certain William Ramones drank two (2) cases of beer with pulutan while their hirelings harvested the palay.

In their Joint Comment dated 10 August 1999 respondents vigorously denied complainant's allegations. They alleged that they harvested the palay on the strength of a writ of execution issued pending appeal by the RTC-Br. 19, Cauayan, Isabela, in Civil Case Case No. Br. 19-879; that the writ of execution was duly served on complainant; that the trial court affirmed the legality of the harvest in an Order dated 12 May 1999 ² Penned by Presiding Judge Artemio R. Alivia. when complainant filed a motion praying for the return of the harvest; ³ Annex "A" of Joint Comment; Rollo, pp. 14-15. and, that the Court of Appeals in a Decision dated 21 July 1999 affirmed the writ of execution pending appeal when questioned by complainant through a special civil action for certiorari. ⁴ Annex "B;" id., pp. 16-22: Finally, respondent Martin denied that he drank beer with his police escort on 22 March 1999, rather, it was merely water that he drank with his lunch.

On 30 August 2000 we referred this case to Executive Judge Henedino P. Eduarte, RTC-Cauayan, Isabela, for investigation, report and recommendation within sixty (60) days from receipt of the records.

In his Report and Recommendation Executive Judge Eduarte recommended that the charges against respondent Sheriff Asirit be dismissed but that his co-respondent Martin be fined P1,000.00 for drinking liquor while engaged in the performance of an official duty.

The recommendations are well-taken. The records show that respondents were indeed authorized to harvest complainant's palay per Writ of Execution Pending Appeal issued by the RTC-Br. 19, Cauayan, Isabela, in Civil Case No. Br. 19-879 and as explained by Presiding Judge Artemio R. Alivia when he ruled on 12 May 1999 upon complainant's motion for the return of the harvest. ⁵ See Note 1. We thus agree that no administrative liability could possibly be attributed to the respondents since they were carrying out a lawful order of the court. A sheriffs duty to implement a writ of execution is purely ministerial and not discretionary. ⁶ Anonuevo v. Pcmpena, A.M. No. P-93-795, 18 July 1994, 234 SCRA 168.

With respect to the charge that respondents allegedly used force, coercion and intimidation in harvesting the palay, we note that there is absolutely no evidence on record to support the same. Complainant and his farmworker Edwin Mejia merely testified that respondent Martin allegedly threatened them on 22 March 1999 that he would have them arrested if they continued harvesting the palay. However, we agree with the Investigating Judge that this "threat" could not be considered a threat at all that would warrant any administrative sanction. Respondent Martin, obviously exasperated over complainants farmworkers harvesting the remaining palay notwithstanding the fact that complainant had already been informed that his palay would be harvested by respondents on the strength of the writ of execution issued pending appeal, was merely telling them in plain language the legal consequences of their refusal to stop the harvest. ⁷ TSN, 22 November 2000, pp. 7-8.

Respondent Martin, on the other hand, should be fined P1,000.00 for drinking liquor on the job as positively and categorically testified to by complainant and witness Edwin Mejia. Martin's bare denial thereof in the face of the clear testimony of Mejia, and without any corroborating evidence in support of his denial, deserves scant consideration.

WHEREFORE, the Report and Recommendation dated 26 December 2000 submitted by Executive Judge Henedino P. Eduarte, RTC-Cauayan, Isabela, is NOTED. The complaint against respondent Sheriff Romeo B. Asirit is DISMISSED for lack of merit. Respondent Jose R. Martin is FINED P1,000.00 for simple misconduct with warning that a repetition of the same or similar offense will be dealt with more severely.

SO ORDERED.

Very truly yours,

(Sgd.) TOMASITA M. DRIS
Clerk of Court

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