A.M. No. P-04-1830

EN BANC

OFFICE OF THE COURT A.M. No. P-04-1830

ADMINISTRATOR, [Formerly A.M. No. 04-6-151-MCTC]

Petitioner,

Present:

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

CARPIO,

- versus - CORONA,

CARPIO MORALES,*

CHICO-NAZARIO,^*

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,

PERALTA, and

SYLVIA CANQUE, Clerk of Court, BERSAMIN, JJ.

12^th MCTC, Moalboal-Badian-

Alcantara-Alegria, Cebu, Promulgated:

Respondent.

June 4, 2009

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D E C I S I O N

Per Curiam:

The instant case stemmed from the Investigation Report of the National Bureau of Investigation (NBI)-Region VII on the entrapment operation on Sylvia R. Canque, Clerk of Court, 12^th Municipal Circuit Trial Court (MCTC), Moalboal-Badian-Alcantara-Alegria, Cebu.

The Investigation Report showed that on June 1, 2004, Marissa Y. Ypanto of Barangay Polo, Alcantara, Cebu filed a letter-complaint before the NBI alleging that Canque asked from her the amount of Forty Thousand (P40,000.00) Pesos in exchange for the release of the former’s common-law husband, Jovencio Patoc, and the dismissal of his criminal cases in court. Patoc was charged with violation of Republic Act No. 9165 before the sala of Judge Victor R. Teves of the said court.

The NBI operatives conducted an entrapment operation on June 3, 2004 at about 9:30 A.M. in the sala of Judge Teves. They arrested Canque after she received the amount of P40,000.00, previously marked with invisible ink and dusted with fluorescent powder, from Ypanto in the presence of NBI Investigator Jedidah S. Hife. Canque was brought to the Forensic Chemistry Section of the NBI for laboratory examination. Forensic Chemist Rommel D. Paglinawan, in his Physics Report,[1] found that the right and left hands of Canque were positive for the presence of fluorescent powder.

The NBI report further stated that prior to the entrapment, Patoc’s mother had already given the amount of Twenty Thousand (P20,000.00) Pesos to Canque in the presence of Ypanto for the dismissal of Patoc’s first case for possession of “shabu” on November 30, 2003. The case remains pending to date.

In a letter dated June 3, 2004, Atty. Reynaldo O. Esmeralda, Acting Regional Director, NBI-Region VII, endorsed to the Deputy Ombudsman for the Visayas the case of Canque for immediate inquest. Thereafter, Informations for direct bribery and violation of Sec. 3 (b) of Republic Act No. 3019, as amended, were filed in the Regional Trial Court (RTC) of Barili, Cebu and were docketed as Criminal Case Nos. CEB-BRL-1058 and CEB-BRL-1057, respectively.

In November 2003, Auditors from Region VII, Cebu City, conducted the periodic audit on the cash and accounts of accountable officers of the provinces of Cebu, Bohol and Negros Oriental. After the audit of the cash and accounts of Canque, the Auditors found that she had a cash shortage of P304,985.00. A letter of demand[2] was sent to her to produce the missing funds and to submit a written explanation within seventy-two (72) hours why the shortage occurred.

On August 3, 2004, the office of the Cluster Director, Commission on Audit, Quezon City received the initial report on the result of the examination of the cash and accounts of Canque.[3] Attached to said report were the chronological statements on the events that transpired in the course of the audit submitted by Ma. Violeta Lucila T. Luta, State Auditor II, Team Leader. On August 6, 2004, the Supervising Auditor forwarded to the Office of the Chief Justice the initial report on the results of the investigation conducted on the cash and accounts of Canque. The initial report stated that Canque had a shortage in her cash collection amounting to P304,985.00 and recommended her immediate relief from her position and any other position involving money or property accountability.[4]

In a Resolution dated June 29, 2004, the Court treated the NBI entrapment on Canque as an administrative complaint for grave misconduct and directed her to comment thereon. She was immediately placed under suspension until further orders by the Court. The case was referred to a Consultant of the Office of the Court Administrator (OCA) for investigation, report and recommendation.

In her Comment,[5] Canque claimed that sometime in November 2003, Rebecca Patoc came to her office to inquire about the bail for her son, Jovencio. When she learned from the judge that the bail was P200,000.00, but that it could be reduced to P100,000.00 if there was no objection from the Chief of Police, Rebecca came back two (2) days later with a Motion for Reduction of Bail. After two weeks, Rebecca came with Ypanto. Canque instructed them to proceed to a bonding company in Barili. She alleged that at Shamrock Restaurant, Rebecca gave P20,000.00 as premium payment for the bail bond to a certain Ote Erojo, who in turn delivered to Rebecca a copy of the Release Order, promising to send her the bond undertaking by mail. On December 8, 2003, Jovencio and Ypanto brought the surety bond to Canque at the latter’s office.

In May 2004, another case for drug pushing was filed against Jovencio. Canque admits to seeing Ypanto only on two (2) occasions: during the preliminary investigation on May 24 and on May 31 when Ypanto asked her when the ten-day period for the filing of Jovencio’s Counter-Affidavit would expire.

Canque further averred that on June 3, 2004, the last day for the filing of the Counter-Affidavit, Ypanto came with a woman who introduced herself as Jovencio’s sister who had just arrived from Holland. The woman got an envelope from her bag and handed it to Ypanto. Ypanto tried to give it to Canque, but the latter did not touch it when she saw that it was not the Counter-Affidavit. The woman allegedly got the envelope from Ypanto and tried to place it at the back of the palm of Canque where it lightly touched her skin. The woman then showed her ID and told Canque that she was an NBI agent. Other NBI agents rushed in and arrested Canque.

In a Resolution dated November 9, 2004, the Court, upon the recommendation of the OCA, reassigned the case to the Executive Judge, RTC, Cebu City for investigation, report and recommendation, considering that all the persons concerned were residents of Cebu City.

Executive Judge Simeon P. Dumdum, Jr. conducted a hearing on October 18, 2005, attended by Canque, NBI agents Gregorio Algoso, Jr., Reynaldo Villordon and Jedidah Hife. The notice sent to Ypanto was returned with the information that she had died.

The Investigation Report[6] states, viz.:

Jedidah S. Hife, a special investigator of the National Bureau of Investigation Central Visayas Regional Office, identified her Affidavit, dated June 3, 2004.

In that Affidavit, Hife declared that on June 3, 2004, at about 9 o’clock in the morning of June 3, 2004, at the office of the Municipal Circuit Trial Court, Moalboal-Badian-Alcantara-Alegria, Cebu, she and other NBI agents arrested Sylvia Canque in an entrapment operation.

She had been instructed to accompany Marissa Ypanto, pretending to be her friend, and to give a pre-arranged signal to other NBI agents at the proper time.

Thus, she and Marissa Ypanto had entered a room inside the courtroom, and there Marissa introduced her to Sylvia Canque as her friend. Marissa had brought with her marked money in the amount of P40,000.00, for which Sylvia had asked from her in exchange for the dismissal of a case for violation of RA 9165 against Jovencio Patoc, and eventually the release of the latter.

Sylvia Canque and Marissa went outside. Hife followed and overheard Sylvia tell Marissa that the money was for the fiscal. Sylvia showed them a Joint Affidavit executed by PO1 Jeremias Geromo and PO3 Estanislao Avenido, the police officers who had arrested Jovencio.

They returned inside the courtroom. Sylvia Canque asked Marissa how much money she had. Marissa said that she was carrying P50,000.00, and gave the envelope to Canque, who wrote P50,000.00 on it. The latter put the envelope inside her bag, and got it out, and put it in again – she seemed undecided, and then she again asked Marissa how much the envelope contained. Marissa suggested that she count the money.

While Sylvia was counting the money, Hife gave the pre-arranged signal. NBI agents Reynaldo Villordon and Michael Angelo Abarico entered the courtroom followed by other agents, accosted Sylvia Canque and recovered from her the marked money amounting to P40,000.00. Thereupon, they put Canque under arrest and informed her of her Constitutional rights.

At the NBI office, laboratory examination found Sylvia Canque positive for fluorescent powder. She was then booked and fingerprinted.

NBI agents Gregorio Y. Algoso, Jr. and Reynaldo C. Villordon identified and confirmed the allegations in the Joint Affidavit which they executed on June 3, 2004.

On June 1, 2004, their office received a letter from a Jonald Ungab, concerning a certain Marissa Ypanto of Brgy. Polo, Alcantara, Cebu, who had complained about Sylvia R. Canque, Clerk of Court of the 12^th Municipal Circuit Trial Court of Moalboal-Basian-Alcantara-Alegria, who had asked from her the amount of P40,000.00 in exchange for the release of her common-law husband, Jovencio Patoc, and the dismissal of the case filed against him, which was then being heard in the sala of Judge Victor R. Teves.

In accordance with their plan to entrap Sylvia Canque, Jedidah accompanied Marissa Ypanto, who introduced Jedidah to Sylvia Canque as a friend. Marked money prepared by the Forensic Chemistry Section of the NBI, consisting of six five-hundred-peso bills, in the total amount of P40,000.00, had been given to Ypanto, who was to hand it to Sylvia Canque. When the transaction was done, and Jedidah had given the pre-arranged signal indicating that the money had been received by Sylvia Canque, they immediately went inside the office of Sylvia Canque, introduced themselves and arrested her. They brought Sylvia Canque to the NBI office to be examined for the presence of fluorescent powder on her hands, booked, photographed and fingerprinted.

Villordon added that, being just nearby, he saw Marissa give the money to Sylvia Canque, who counted it. At this point, Jedidah gave the pre-arranged signal, and the agents went inside. His co-agent Michael Albarico announced that they were NBI agents. All of which took Sylvia Canque by surprise.

Physics Report No. 04-P-3306, dated June 3, 2004, of the Forensic Chemistry Section of the National Bureau of Investigation states that the examination conducted on June 3, 2004, at 12:30 p.m. revealed that the left and right hands of Sylvia Canque bore the presence of yellow fluorescent powder.

For her part, Sylvia Canque identified and confirmed the allegations she made in her Comment, dated July 21, 2004, adding nothing to the same.

Still and all, Canque insisted that it was Jedidah who put the envelope on her forearm, and that she did not count the money inside it. In fact, it was NBI Director Esmeralda who counted the money in his office. Until then the envelope was unopened. She denied having written “P50,000.00” on the envelope.

Findings

Canque admitted that an entrapment operation was conducted on her. Laboratory tests found her hands positive for the presence of fluorescent powder. But Canque denied touching the money herself, claiming that it was Jedidah Hife who put the envelope on the back of her palm. But if the envelope were (sic) just put on her forearm, and what was dusted with fluorescent powder was the money, which was inside the envelope, why were Canque’s hands found positive for the presence of the powder?

The undersigned gives credence to the testimony of the NBI agents, which was coherent, and given in a forthright manner. No ulterior motive to lie could be ascribed to the agents. Thus, the undersigned finds the facts to be as narrated by the agents.[7]

The Investigating Judge found respondent Canque guilty of grave misconduct and recommended the penalty of dismissal, with forfeiture of all her benefits and disqualification from re-employment in the government service.

In a Resolution dated February 7, 2006, the Court referred the Investigation Report to the OCA for evaluation, report and recommendation.

In its Report dated June 13, 2006, the OCA recommended that the Investigation Report of Investigating Judge Dumdum be set aside and the complaint be investigated anew upon finding that Canque was not informed of her right to be heard by herself and counsel during the investigation which allegedly amounted to a denial of her right to due process; and for the Audit Report of Shortage in the amount of P304,985.00 and other actuations and deficiencies of respondent Canque to be set in the next En Banc Agenda.

On September 5, 2006, the Court issued a Resolution requiring respondent to file a Comment, within a non-extendible period of ten days from notice, on the Audit Report of the COA finding a shortage in her cash collection amounting to P304,985.00. Respondent failed to comment. Thus, in an En Banc Resolution dated December 4, 2007, the Court considered respondent to have waived her right to file Comment and referred, for the second time, the matter to the Office of the Court Administrator for evaluation, report and recommendation.

In a Memorandum dated July 23, 2008, the Office of the Court Administrator found Canque liable for gross neglect of duty, gross dishonesty and grave misconduct and recommended her dismissal from the service with forfeiture of retirement and other benefits, except accrued leave credits, and with prejudice to re-employment in any government office or instrumentality, including government-owned and controlled corporations. It further recommended that she be ordered to restitute the amount of P304,985.00 representing the shortage in the collection of court funds.

We agree with the findings and recommendation of the Office of the Court Administrator.

Grave misconduct is a malevolent transgression of some established and definite rule of action – more particularly, unlawful behavior or gross negligence by the public officer or employee – which threatens the very existence of the system of administration of justice.[8] It manifests itself in corruption, clear intent to violate the law or flagrant disregard of established rules.[9] It is considered as a grave offense under the Civil Service Law[10] with the corresponding penalty of dismissal from the service with forfeiture of retirement benefits, except accrued leave credits, and perpetual disqualification from re-employment in government service.

In the case at bar, respondent violated Section 2, Canon 1 of the Code of Conduct for Court Personnel which states that “[c]ourt personnel shall not solicit or accept any gift, favor or benefit on any explicit or implicit understanding that such gift shall influence their official actions.” This is sufficiently established by the evidence on record. First, respondent was caught red-handed, in a legitimate entrapment operation, demanding and receiving money from complainant Ypanto in connection with the immediate release of the latter’s common-law husband Jovencio from police custody; and the dismissal of the criminal charges against him which were pending before the MCTC, Moalboal-Badian-Alcantara-Alegria, Cebu – her official station. While respondent was in the act of counting the marked money, she was validly placed under arrest and apprised of her constitutional rights. Second, her hands were found to have smudges of the yellow fluorescent powder used to mark the bills when her hands were subjected to ultraviolet light examination. These results of the entrapment operation clearly establish the guilt of respondent who has merely denied, without support, the allegations against her.

This is not all.

Respondent likewise failed to observe the standard of behavior required of clerks of court as the chief administrative officers of their respective courts as shown by the initial audit report of the COA finding her remiss in the performance of her administrative duties as clerk of court. These infractions consist of her failure to update the court cashbook, as well as her failure to explain the missing collection records[11] for the Fiduciary Fund (FF) and the shortage in her cash collection amounting to P304,985.00. These acts of respondent are in violation of her duties and responsibilities as clerk of court in the collection and custody of legal funds and fees. Clerks of court are responsible for court records and physical facilities of their respective courts and are accountable for the court’s money and property deposits under Section B, Chapter 1 of the 1991 Manual for Clerks of Court and the 2002 Revised Manual for Clerks of Court, viz.:

The Clerk of Court has general administrative supervision over all the personnel of the Court. As regards the Court’s funds and revenues, records, properties and premises, said officer is the custodian. Thus, the Clerk of Court is generally also the treasurer, accountant, guard and physical plant manager thereof.

Thus, as custodians of the court’s funds, revenues, records, properties and premises, clerks of court are liable for any loss, shortage, destruction or impairment of the same.

The cited acts of respondent clearly show her failure to discharge her functions as clerk of court constituting gross neglect of duty, gross dishonesty and grave misconduct. Each offense is punishable with dismissal even for the first time of commission under Section 22 (a), (b) and (c) of Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292and Other Pertinent Civil Service Laws.

We have held time and again that the Court will not hesitate to impose the stiffest penalty on those who atrociously display serious lack of integrity, uprightness and honesty demanded of an employee in the judiciary. Neither shall we tolerate or condone any conduct that would violate the norms of public accountability and diminish, or even tend to diminish, the faith of the people in the justice system,[12] as in the case at bar.

Lastly, the Court does not agree with the finding of the Office of the Court Administrator in its first Report dated June 13, 2006 recommending that the Investigation Report of Investigating Judge Dumdum be set aside and that the complaint be investigated anew since Canque was not informed of her right to be heard by herself and counsel during the investigation – an omission allegedly amounting to a denial of her right to due process. The essence of due process is that a party be afforded a reasonable opportunity to be heard and to present any evidence he may have in support of his defense. Technical rules of procedure and evidence are not strictly applied to administrative proceedings. Thus, administrative due process cannot be fully equated with due process in its strict judicial sense.[13] A formal or trial-type hearing is not required.

In the case at bar, despite respondent’s protestations, the records readily show that she was afforded the opportunity to present her side as she was directed to file her comment on the complaint. She was notified of the hearing and was in fact present during the entire proceedings. As to the issue on the legality of her arrest, respondent has failed to submit evidence in support of her bare claims.

IN VIEW WHEREOF, respondent Sylvia R. Canque, Clerk of Court, 12^th MCTC, Moalboal-Badian-Alcantara-Alegria, Cebu is found GUILTY of GRAVE MISCONDUCT, GROSS NEGLECT OF DUTY and GROSS DISHONESTY. She is hereby DISMISSED from the service, with forfeiture of all benefits, except accrued leave credits, and with prejudice to re-employment in any branch or instrumentality of the government, including government-owned or controlled corporations and financial institutions. She is further ordered to RETURN to the Court the amount of P304,985.00 to cover the shortage in the collection of court funds. In case of her failure to restitute the said amount, in full or in part, the Employees Leave Division of the Office of Administrative Services–OCA is directed to compute the balance of respondent’s accrued leave credits and forward such computation to the Finance Division of the Fiscal Management Office–OCA for the determination of its monetary value. The said amount plus other benefits that respondent may be entitled to shall be applied to the above shortage incurred.

SO ORDERED.

REYNATO S. PUNO

Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO