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SECOND DIVISION

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated OCT 3 2005.

A.M. OCA IPI No. 05-2240-RTJ ( Josito Pareja vs. Judge Ermelindo G. Andal, RTC, Tandag, Surigao del Sur, Branch 27 .)

Considering the Report of the Office of the Court Administrator (OCA) dated August 22, 2005, to wit:

REASON FOR THE AGENDA: Filed before this Office is a VERIFIED COMPLAINT of Josito Pareja charging Judge Ermelindo Andal with Knowingly Rendering an Unjust Order, Serious Misconduct and Violation of the Canons of Judicial Ethics relative to Special Civil Action No. 1644 entitled "Aras-asan Timber Company vs. Josito Pareja, et al." Petition for Injunction with Prayer for Issuance of Preliminary Mandatory Injunction, Temporary Restraining Order and Damages.

Complainant is the president of United Lumber and General Workers of the Philippines Local 127 (hereinafter ULGPW-Local 127) and one of the union officers included as respondents in the abovementioned case filed by plaintiff Aras-asan Timber Company (hereinafter ARTIMCO) on 9 August 2004.

On 11 August 2004, prior to the submission of respondents' answer to the petition, respondent judge allegedly invited them to personally appear before him for a conference relative to the petition. During the conference, respondents not being represented by counsel were surprised when respondent judge issued in open court a Temporary Restraining Order despite respondents' commitment that they will not prevent ARTIMCO from hauling its logs. On 17 August 2004, respondent judge, after approving the petitioner's bond, issued an order for the issuance of a writ of preliminary prohibitory injunction directing respondents to desist from preventing the free access of petitioner's hauling trucks and equipment to and from its compound, concession area and log pond during the pendency of the petition.

On 20 August 2004, respondents filed their answer to the petition with prayer for its dismissal on the ground of lack of jurisdiction by reason of a pending unfair labor practice filed by the respondent union officers before the NLRC against ARTIMCO. They have also alleged in the said petition that ARTIMCO owes its workers a total of over P36,000,000.00 in separation pay; that it also failed to remit its workers' contributions to the SSS in the total amount of P16,000,000.00; and, unless the workers could get the attention of the company, there is no way they could settle its obligation considering that ARTIMCO's Timber License Agreement is due to expire in about two years.

Complainant laments that courts exist to promote justice, to secure the contentment and happiness of the people and not to oppress or harass them by unfair and unjust judgment. By proceeding to issue the writ of preliminary prohibitory injunction, notwithstanding that the issue involved in the petition is interwoven with a pending unfair labor practice case, respondent judge, according to complainant, is guilty of serious misconduct for knowingly rendering an unjust order.

In his COMMENT, respondent judge admits that he issued the orders dated 11 & 17 August 2004 in S.P. Civil Action No. 1644 explaining that he issued them after petitioner ARTIMCO presented proof during the hearing on 17 August 2004 that respondents failed to abide by the commitment they made on 11 August 2004. Petitioner ARTIMCO proved that on 31 July 2004, respondents put boulders on the Tubo-tubo barangay road, which serves as ARTIMCO's access road from its compound in Aras-asan, Cagwait to its logging area. In 9 August 2004 and thereafter, respondents put human barricades in the Awasian barangay road, which serves as ARTIMCO's access road to and from its logging area to its log pond at Barangay Bioto, Tandag. Also in November and December 2004, respondents prevented the logging trucks of ARTIMCO from passing through the Tubo-tubo, Cagwait barangay road. ARTIMCO likewise adduced proof to the effect that unless the writ prayed for is issued, it would not meet its log supply contracts.

Respondent judge maintains that his orders were validly issued as complainant and his co-respondents were not able to present any evidence showing that they had the right to prevent or obstruct the use of the Tubo-tubo Cagwait and Awasian, Tandag Barangay roads as ARTIMCO's access roads. He further contends that the court has jurisdiction over the nature of the action as well as the subject matter of the action. His assailed orders did not interfere with or defeat any order or resolution issued by any other court or administrative body, including the NLRC or its arbiters.

Finally, respondent judge avers that his actions in connection with the petition were done publicly and that he had not invited either party therein for any conference for any purpose because they came to court by virtue of the regular processes of the court and not by personal invitation.

EVALUATION: Section 2, Rule 58 of the Rule on Civil Procedure provides that a preliminary injunction may be granted by the court where the action or proceeding is pending. Thus, when all the requirements provided under Rule 58 for the issuance of the writ of preliminary injunction were complied with by the applicant, the issuance of the writ is left to the sound discretion of the court, in this case, with respondent judge.

Clearly, the assailed act of respondent judge in issuing the writ of preliminary injunction was done in the exercise of his judicial discretion. The Court in In Re: Joaquin T. Borromeo, 241 SCRA 405 , ruled that a judge may not be held administratively accountable for what he does in the exercise of his judicial powers and jurisdiction. It is also well-settled that a judicial officer, when required to exercise his judgment or discretion, is not liable criminally for any error which he commits, in the absence of showing of bad faith, malice or corrupt purpose. The present administrative complaint does not even allege that respondent judge was motivated by bad faith, malice, corruption or dishonesty when he issued the assailed writ. Neither was there any evidence that was presented tending to prove that respondent judge was motivated by such motives in issuing the writ.

Moreover, [a] perusal of the record reveals that petitioner ARTIMCO did not apprise the court of the pendency of the unfair labor practice case neither did the complainant raise it prior to respondent's issuance of the writ of preliminary injunction. The complainant had the opportunity to do so during the hearings conducted by the respondent judge on 11 August 2004 and on 17 August 2004 but he never raised the same until the filing of their answer.

On the other hand, the issuance of the temporary restraining order (TRO) being assailed by the complainant appears to have been issued by respondent judge after the conduct of a summary hearing for the purpose of determining whether there is a necessity to extend the same. It must be noted that Section 5, Rule 58 of the Rule on Civil Procedure allows the extension of the effectivity of a TRO issued until the application for preliminary injunction can be heard after a summary hearing is conducted by the judge before whom the case is pending. Apparently, complainant also did not raise the issue of their alleged lack of representation during the summary hearing for the extension of the TRO.

Complainant cannot now - in the guise of the present administrative complaint raise the aforesaid issues. If he really believes that respondent judge erred in issuing the assailed writ and TRO, he could have sought their quashal before respondent's court or raise the same on certiorari. Complainant's remedy thus, remains judicial in nature.

RECOMMENDATION: Respectfully submitted for the consideration of the Honorable Court is our recommendation that the present administrative complaint be DISMISSED , the remedy of complainant being judicial in nature.

The findings of the OCA are well taken.

Indeed, as a matter of policy, in the absence of fraud, dishonesty or corruption, the acts of a judge in his judicial capacity are not subject to disciplinary action even though such acts are erroneous. ¹ To hold otherwise would be to render judicial office untenable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in his judgment. ² Moreover, the filing of an administrative complaint against a judge is not the appropriate remedy where judicial recourse is still available. In the absence of fraud, malice or dishonesty in rendering the assailed decision or order, the remedy of the aggrieved party is to elevate the assailed decision or order to the higher court for review and correction. ³

The Court Resolves to DISMISS the instant complaint against Judge Ermelindo G. Andal for lack of merit.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG

Clerk of Court