EN BANC
PROVINCIAL
AUDITOR
EFREN L. DIZON,
Complainant,
A.M.
No.
P-94-1031
July 1, 2003
-versus-
ATTY. JOSE R.
BAWALAN, CLERK OF COURT,
REGIONAL TRIAL
COURT,
BRANCH 23, TRECE
MARTIRES CITY,
Respondent.
D E C I S I O N
PER
CURIAM:chanroblesvirtuallawlibrary
On December 1, 1993, Provincial
Auditor Efren L. Dizon furnished the Office of the Court Administrator
(OCA) with a copy of the Report[1]
on the examination of the cash and accounts of Atty. Jose R. Bawalan,
Clerk
of Court, Regional Trial Court, Branch XXIII, Trece Martires City,
conducted
on June 28, 1993, and review of transactions from December 18, 1992 to
June 28, 1993. The audit allegedly revealed some deficiencies in
handling
the operations of the Office of the Clerk of Court. A cash shortage in
the amount of P3,599.96 was also discovered. Upon receipt of a demand
letter
from the Office of the Provincial Auditor dated July 1, 1993, Atty.
Bawalan,
on July 9, 1993, restituted the amount. The auditors made the following
observations:chanrobles virtual law library
1.
Collections
for all funds from January 1, 1993 to June 28, 1993 in the amount of
P12,785.99
were not remitted/deposited to the Bureau of Treasury and/or depository
bank in violation of Section III of the Government Accounting and
Auditing
Manual and Joint Circular No. 1-81 of the Commission on Audit and
Department
of Finance which states that: "Collecting officers shall deposit their
national collections intact to the Bureau of the Treasury or to any
authorized
government depository bank x x x as soon as collections reach
P2,000.00."
2. Legal
fees
for certified transcript of stenographic notes appear not have been
paid
to the court but only to the stenographers concerned in violation of
Section
10 of Administrative Circular No. 31-90 dated October 15, 1990 issued
by
the Supreme Court of the Philippines which provides that:
"Stenographers
shall give certified transcript of notes taken by them to every persons
(sic) requesting the same upon payment of (a) five (P5.00) pesos for
each
page of not less than two hundred fifty words before the appeal is
taken
and (b) three (P3.00) pesos for the same page, after the filing of the
appeal, provided however that one half of the total charges shall be
paid
to the court and the other half to the stenographer concerned."
3. Legal
fees
on civil cases filed by several persons with the Office of the Clerk of
Court as shown by the respective docket number assigned, were not
collected
in violation of Section (f) of the Supreme Court Administrative
Circular
No. 31 -90.
4. Legal
Research
Fee as required by Law, was not collected on civil cases filed by
several
persons with the Office of the Clerk of Court.
5. Cash bond
collected
from Ms. Lourdes Vicedo in the amount of P6,000.00 per O.R. No. 8793451
dated March 18, 1993 was not deposited to the bank up to the time the
said
cash bond was allegedly withdrawn by Ms. Vicedo on April 22, 1993 and
there
was no evidence that the said bail bond was withdrawn by the said
person.
Likewise, cash bond collected from Andres Aribal in the amount of
P10,000.00
on March 18, 1993 per O.R. No. 8703452 dated March 18, 1993 was not
deposited
up to the time that it was allegedly withdrawn by the said person in
violation
of Circular No. 8-93 dated February 12, 1993 of the Office of the Court
Administrator, Supreme Court of the Philippines, which requires that
(sic)
"Clerk of Courts to deposit all collections from bail bonds, rental
deposits
and other fiduciary collections with the Land Bank of the Philippines
(LBP)
or with the Rural for localities where LBP has no branches."chanrobles virtual law library
6.
Collections
for Cash Bond and General Fund (Judiciary) were recorded in a Record
Book
and not in the prescribed cashbook in violation of Section 36 of the
National
Accounting and Auditing Manual which states that "Collecting and
disbursing
officers shall record their transactions involving money handled by
them
in the prescribed cashbooks."
7.
Transactions
were not recorded daily in the cashbooks in violation of Section 36 of
the National Accounting and Auditing Manual which states that "Cashbook
entries should be written in ink at the time the transactions occur."
At
the time of cash count on June 28, 1993, transactions recorded in the
cashbook
were as of December 31, 1992 only, except those of the JDF whose
transactions
were recorded up to February 28, 1993.
8. The Clerk
of
Court and the Clerk III assigned to receive collections were not bonded
in violation of Section 66 of the Government Accounting and Auditing
Manual
and Section 101 of PD 1445 which states that "Every Officer of any
government
agency whose duties permit or require the possession or custody of
government
funds or property shall be accountable therefore for the safekeeping
thereof
in conformity with law and shall be properly bonded in accordance with
law." In addition to this, the accountable officer has no vault or safe
where to (sic) his undeposited collections as required under COA
Circular
No. 77-48 dated January 31, 1977 which requires "safe and other
facilities
should be provided to insure protection of cash and unused accountable
forms."
9. Monthly
report
of accountability for accountable forms were not prepared by the
accountable
officer in violation of Section 98 of Government Accounting and
Auditing
Manual which states that "The accountable officers shall render a
report
to COA Unit Auditor on their accountability for accountable forms at
least
once a month in the prescribed form. Such report shall also be prepared
in case of transfer of office or accountability of the accountable
officer.
The report shall include, among others, the name/type quantity and
serial
number and/or values of the accountable forms as of last month/period,
the forms received and issued during the month/period and the balance
as
of end of month/period." Likewise, obsolete, spoiled and cancelled
official
receipts were not submitted to the Auditor for inspection and
destruction
in violation of Section 99 of General Accounting and Auditing Manual
which
provides that "Accountable Officers shall submit to the COA Unit
Auditor
all obsolete, spoiled and cancelled official receipts and other
accountable
forms for inspection and destruction. Under no circumstances shall
accountable
officers destroy on their own accountable forms of any description,
then
be relieved from responsibility."
It appeared from the
records
that as of April 12, 1994, respondent had a pending application for
resignation
which the Court had not acted upon in view of the pendency of another
administrative
complaint against him.[2]chanrobles virtual law library
On June 15, 1994, the
Court required respondent to comment on the complaint. The Court
also resolved, among others, to "hold in abeyance the approval of the
resignation
of said respondent pending resolution of the administrative case" and
"direct
Atty. Bawalan to go on leave pending the resolution of the (instant)
administrative
matter."[3]
The copy of the Court’s
resolution addressed to Atty. Bawalan, however, was returned to this
Court
with notation "No longer at; Resigned". Thus, a copy of the resolution
was served personally on Atty. Bawalan.[4]
On September 18, 1994,
respondent filed a motion for extension of time to file comment. He
reasoned
that he had been very busy attending to his new job as a small time
businessman
and to other personal matters affecting the livelihood of his family.[5]
The Court granted the motion.[6]
On November 25, 1994,
respondent filed a second motion for extension of time to file comment[7]
which was likewise granted by the Court.[8]
On March 13, 1996, it
appearing that respondent still has not filed his comment on the
complaint,
the Court required respondent to show cause why he should not be
disciplinarily
dealt with or held in contempt for such failure and to submit to the
Court
his comment within ten days from notice.[9]
Respondent filed his
explanation on May 8, 1996, together with a third motion for extension
of time to file comment. He stated that since he left government
service,
he had been busy going to different provinces practicing his profession
as lawyer and as real estate agent that he was unaware that copy of the
complaint has already been sent to his residence by the Office of the
Provincial
Auditor.[10]
Thus, he sought a thirty-day extension to file his comment which was
again
granted by the Court.[11]
Still, respondent did
not file his comment.cralaw:red
On January 27, 1997,
the Court imposed on him a fine of P500.00 and required him to submit
his
comment within ten days from notice.[12]
Respondent paid the
fine on August 11, 1997 but still failed to file his comment. Neither
did
he offer an explanation for such failure.[13]
Thus, on September 1,
1997, the Court again imposed on him an increased fine of P1,500.00.[14]chanrobles virtual law library
As respondent failed
to comply with the resolution of September 1, 1997, the Court once
again
increased his fine to P2,000.00. The Court further ordered him to
comply with the resolution of June 15, 1994 by submitting his comment
on
the administrative complaint within ten days from notice, with warning
that in case of his failure to file the required comment within the
prescribed
period, the case shall be resolved based on the complaint and its
annexes.[15]
On December 15, 1999,
the Court again noted that respondent still has not paid his fine nor
filed
his comment on the administrative complaint. The Court again
increased
his fine to P5,000.00 and warned him that his failure to file a comment
within ten days from notice will be considered as waiver of his right
to
comment on the complaint and the case will be decided based on the
records.[16]
On September 3, 2001,
respondent having failed to file the required comment, the Court
resolved
to consider the filing of respondent’s comment as waived.[17]
On January 31, 2003,
the OCA submitted its report[18]
with the following observation:
After a careful study
of the records of the case, it appears that respondent indeed
misappropriated
the amount of P3,599.95 which the provincial auditors found to be
missing
after they conducted an examination of the cash and accounts of
respondent
on June 28, 1993. The demand letter dated July 1, 1993 to produce the
missing
funds was received by respondent on July 7, 1993. This cash shortage
was
restituted by respondent on July 9, 1993 per O.R. Nos. 8793454 in the
amount
of P3,160.00 and 8793645 in the amount of P439.36, both dated July 9,
1993.
No explanation was submitted by respondent as to the circumstances of
the
cash shortage at the time of audit. In the case of Jose Feliciano, 15
Phil.
142, it was held that the failure of an accountable public officer to
produce
public funds upon demand of the auditor is a prima facie evidence that
the missing funds or property had been utilized for personal uses and
were
therefore misappropriated. Consequently, the subsequent act of
reimbursement
cannot in any way affect the existence of the crime of malversation
already
committed.chanrobles virtual law library
Further to the cash
shortage discovered by the provincial auditors, respondent was found to
have incurred numerous violations of the Government Accounting and
Auditing
Manual, Commission on Audit and Department of Finance circulars as well
as circulars issued by this Court. These violations consists (sic) of
failure
to deposit cash collections with the official depository bank, failure
to collect the prescribed legal fees on various cases filed with the
court,
improper recording of collection for cash bond and general funds and
failure
to record daily transactions in the cash books. All these
violations
proved that respondent has been remiss in the performance of his duties
as Branch Clerk of Court.[19]
The OCA recommended,
among others, that respondent be dismissed from the service with
forfeiture
of retirement benefits and leave credits to which he may be entitled,
if
any, with prejudice to his re-employment in any branch of the
Government,
including government-owned or controlled corporations.cralaw:red
On March 24, 2003, we
issued a resolution holding respondent in contempt for failure to
comply
with the orders and processes of this Court and imposing on him the
penalty
of imprisonment of five days. Accordingly, the Court ordered the
National Bureau of Investigation (NBI) to arrest the respondent and
detain
him for five days.[20]
It appears, however, from the report of the NBI dated May 7, 2003 that
they were unsuccessful in enforcing the Court’s order. Atty. Dennis S.
Siyhian, Investigation Agent II, Anti-Graft Division, NBI, stated in
his
report that he and some operatives of the NBI-Anti-Graft Division went
to respondent’s last station at RTC, Branch 23, Trece Martires City on
May 6, 2003 but they learned from the personnel that respondent had
ceased
reporting to said office since 1992 and they are not aware of
respondent’s
present employment or residence.cralaw:red
We agree with the findings
and recommendation of the OCA with respect to the Provincial Auditor’s
charges against respondent.cralaw:red
The Court has given
the respondent more than enough opportunity to explain his side. He,
however,
chose to ignore the numerous orders issued by this Court requiring him
to file his comment on the charges against him, and even managed to
cause
this case to drag on for a very long period of time by filing several
motions
for extension of time to file comment which he never fulfilled. Under
this
circumstance, we have no other option but to base our conclusions and
decision
on what is found in the records.[21]
The various violations of respondent are very clear from the records.cralaw:red
We have often emphasized
that the Clerk of Court is an essential officer in any judicial system.
His office is the nucleus of activities, adjudicative and
administrative.
His administrative functions are just as vital to the prompt and proper
administration of justice as his judicial functions. As a public
servant and as an officer of the court, the Clerk of Court must exhibit
at all times the highest sense of honesty and integrity. Respondent’s
numerous
violations of the government auditing rules constitute grave misconduct
and make him unworthy of the public trust reposed on him.[22]chanrobles virtual law library
IN VIEW WHEREOF, respondent
Atty. Jose R. Bawalan is DISMISSED from the service with forfeiture of
retirement benefits and leave credits to which he may be entitled, if
any,
with prejudice to his re-employment in any branch of the Government,
including
government-owned or controlled corporations. Furthermore, the Court
reiterates
its resolution of March 24, 2003 and directs the NBI to exert utmost
effort
in locating the present whereabouts of respondent to enforce said
resolution.cralaw:red
SO ORDERED.cralaw:red
Davide, Jr., C.J., Bellosillo,
Puno, Vitug, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Corona,
Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.cralaw:red
Quisumbing, J., on leave.cralaw:red
Austria-Martinez, J., on official leave.
____________________________
Endnotes:
[1]
Rollo, pp. 6-9.chanrobles virtual law library
[2]
Memorandum of Deputy Court Administrator Reynaldo L. Suarez dated April
12, 1994, Rollo, pp. 1-3.
[3]
Rollo, p. 20.chanrobles virtual law library
[4]
Id. at 32.chanrobles virtual law library
[5]
Id. at 33.chanrobles virtual law library
[6]
Id. at 35.chanrobles virtual law library
[7]
Id. at 36-37.chanrobles virtual law library
[8]
Id. at 38.chanrobles virtual law library
[9]
Id. at 45.chanrobles virtual law library
[10]
Id. at 46-48.
[11]
Id. at 49.
[12]
Id. at 52.chanrobles virtual law library
[13]
Id. at 54.
[14]
Id. at 55.chanrobles virtual law library
[15]
Id. at 57.
[16]
Id. at 63.chanrobles virtual law library
[17]
Id. at 68.
[18]
Id. at 70-77.chanrobles virtual law library
[19]
Id. at 74-75.
[20]
Id. at 79.chanrobles virtual law library
[21]
See Saura, Jr. vs. Agdeppa, 325 SCRA 682 (2000).chanrobles virtual law library
[22]
Re: Report on the Judicial and Financial Audit of RTC-Br. 4,
Panabo,
Davao del Norte, 287 SCRA 510 (1998); Re: Report on the
Judicial
Audit Conducted in RTC, Branches 29 and 59, Toledo City, 292 SCRA 8
(1998).chanrobles virtual law library
chan
robles virtual law library |