EN BANC

JUDGE DELIA P. NOEL-	A.M. No. P-10-2758
BERTULFO, Municipal Trial	(Formerly OCA IPI No. 08-2957-P)
Court, Palompon, Leyte,
Complainant,	Present:
	PUNO, C. J.,
	CARPIO,
	CORONA,
	CARPIO MORALES,
	VELASCO, JR.,
	NACHURA,
- versus -	LEONARDO-DE CASTRO,
	BRION,
	PERALTA,
	BERSAMIN,
	DEL CASTILLO,
	ABAD,
	VILLARAMA, JR.,
	PEREZ, and
DYNDEE P. NUÑEZ, Court Aide,	MENDOZA, JJ.
Municipal Trial Court, Palompon,
Leyte,	Promulgated:
Respondent.	February 2, 2010

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r e s o l u t i o n

PER CURIAM:

On September 5, 2008, Judge Delia P. Noel-Bertulfo of the Municipal Trial Court, Palompon, Leyte, filed a complaint against Mr. Dyndee P. Nuñez, Court Aide of the same court, for Gross Dishonesty. In her Complaint-Affidavit, Judge Bertulfo alleged that she had been losing money and personal effects inside her chambers since the latter part of the year 2006. She further narrated:

x x x x

That my bag containing my cash and valuables are kept in the filing cabinet inside my Chambers during office hours;

That I always carry two (2) wallets inside my bag;

That I started noticing that every week I would lose money in varying amounts sometimes P1,000.00, and at other times, P2,000.00, P1,500.00, and even P3,000.00, etc.;

That it was too late when I discovered that the topmost drawer of my filing cabinet could be opened even if [it is locked];

That after making the said discovery, I transferred my wallets inside my attaché case which is always placed on top of my table for easy access to my files;

That I was secure in the thought that my money was safely stashed inside my attaché case with combination lock each time I would be out of my chambers;

That despite placing my two (2) wallets inside my briefcase, I continued losing money and was [mystified] as to how it could have happened;

That in the afternoon of July 24, 2007 between 1:30-2:45 o’clock in the afternoon, I went to the Philippine National Bank located just a stone’s throw away from the Hall of Justice, Palompon, Leyte;

That on that fateful day, I had TWENTY THOUSAND PESOS (P20,000.00) in ONE THOUSAND PESO BILLS in one of my wallets;

That I could not determine how much cash I had in the other wallet;

That when I returned from the bank, Dyndee P. Nuñez was no longer inside the Staff Room;

That after office hours, I had somebody look for him so he could load my briefcase [in] my vehicle, but he was nowhere in sight;

That upon reaching home, I was aghast to find that TEN (10) ONE THOUSAND PESO BILLS and my PNB ATM Card were missing from my wallet;

That I started sensing something amiss that I did not anymore place my wallets inside my filing cabinet and briefcase;

That after some sleuthing around my office, I found out that the barrel bolt of the door from the Chambers to the Courtroom was intentionally displaced so it could not be closed from inside and could be opened by someone who has a key to said door;

That Dyndee P. Nuñez is the only one who has keys to the outside door leading to the Courtroom and to the door leading to my Chambers;

That on August 24, 2007 at around 1:34 o’clock in the afternoon, I, together with my then Acting Clerk of Court, Mrs. Raineria S. Pabica, went out of the office to solemnize a marriage at the function room of PACCI just across the Hall of Justice;

That in order to confirm my suspicions, before leaving my chambers, I placed a swivel/computer chair right behind the door leading to the Courtroom;

That I locked my attaché case, [changed the lock combination, and] committed to memory the 3-digit numbers;

That after the marriage ceremony, I lingered for a short while as I wanted sufficient time to elapse as I was certain that my absence would embolden him into action;

That when I got back to the MTC Office and opened the door from the Personnel Room to the Chambers, the first thing that caught my attention was the swivel/computer chair that was already a foot away from the other door;

That the next thing I did was to inspect the numbers in my attaché case and my suspicion was confirmed as the numbers were already re-arranged;

That nothing was taken as I brought with me my handbag and wallets;

That I acted nonchalantly about the whole thing and did not breathe a word about the thievery perpetrated right in the Hall of Justice and by a suspected Court employee;

That I tried to find ways and means to catch the culprit red-handed;

That I installed a web camera in the desktop computer in my Chambers although the Court has no internet access;

That on September 4, 2008 at around 11:15 o’clock in the morning, I left the Court premises together with Court Stenographer, Raineria S. Pabica, announcing before leaving to all the MTC Personnel that we would be going to the Philippine Institute of Technology (PIT) to have my GSIS E-Card Plus validated;

That Dyndee P. Nuñez was within earshot when I made the said announcement on purpose;

That before leaving the MTC Office I placed my bag with my wallet containing P6,570.00 cash in different denominations inside my filing cabinet;

That my other wallet containing P10,450.00 in different denominations was placed inside my briefcase;

That I had jotted down in two (2) sheets of paper the serial numbers of the bills inside each wallet;

That I set up the camera with [part at the back] portion x x x taped x x x so the green light would [not be] noticed;

That after turning on the capture mode I turned off the monitor of the desktop computer;

That I placed a computer chair a foot away from the door;

That I was out of the office for about twenty-three (23) minutes;

That when I returned to my Chambers the first thing that caught my notice was the swivel chair that was moved from its place so I rushed to check the contents of my wallets;

That TWO (2) FIVE HUNDRED PESO BILLS bearing SERIAL NUMBERS EM624905 and QZ0186 were missing from the wallet inside the filing cabinet;

That no cash was taken from the wallet inside the briefcase;

That I called to my Chambers the newly-appointed Clerk of Court, Mrs. Ma. Irene R. Legaspi, and we sat down in front of the computer monitor to review the recorded video;

That I thought then that I already had evidence to pin down the culprit but I was astounded and filled with sheer frustration and disgust when at 00:4:39 minutes into the recorded video the screen suddenly went blank as presumably the camera was shut down;

That at 00:5:59 minutes into the recording the camera’s cover was opened again;

x x x x

Because of the foregoing events, complainant sought the assistance of the National Bureau of Investigation (NBI) and the Criminal Investigation and Detection Group (CIDG). Allegedly, respondent Nuñez, who was the first employee to be questioned and fingerprinted by the NBI agents, ultimately admitted his culpability, sought forgiveness and begged not to be put behind bars.

Meanwhile, on September 5, 2008 or on the same date the instant complaint was filed, respondent Nuñez tendered his irrevocable resignation effective immediately.

On November 7, 2008, the Office of the Court Administrator (OCA) informed respondent Nuñez that the Court has accepted his resignation without prejudice to the continuation of the administrative case filed against him.

To substantiate her allegations, complainant submitted the affidavits of Ma. Irene R. Legaspi, Randy D. Peñaranda, Allan A. Tubiz, as well as a certified true extract copy from the Police Blotter of the Palompon Police Station.

In her affidavit, Ma. Irene R. Legaspi, Clerk of Court of the Municipal Trial Court of Palompon, Leyte, narrated that on September 4, 2008, at around 11:35 a.m., she was summoned by Judge Bertulfo to her chambers. Judge Bertulfo informed her that her money was missing and that they would view the video recording in her desktop computer to find out the identity of the perpetrator. However, they found out to their dismay that the camera was switched off. Thereafter, all personnel of the Municipal Trial Court were called to a meeting where they learned that Judge Bertulfo has been losing money inside her chambers since 2006. They were then instructed by Judge Bertulfo not to leave the court premises because NBI agents were on their way to conduct an investigation. Respondent Nuñez who was the first to be fingerprinted, admitted that he was responsible for the theft. He sought forgiveness from complainant and begged her not to have him incarcerated. In addition, respondent Nuñez told Judge Bertulfo that he would resign from his job and that he would pay back the money that she lost.

On the other hand, Randy D. Peñaranda stated in his Affidavit that at 6:00 p.m. of September 4, 2008, an NBI agent came to his store, Marilao Agrivet and Vet Store, inquiring if the herein respondent Nuñez came to his store that day. He told the NBI agent that a Court employee wearing blue barong came to the store past 11:00 a.m. and bought chicken feeds. The said Court employee was a regular customer but he did not know his name. He described the Court employee as one who has whitish patches on his lips down to his neck and has chinky eyes, which matched the description of herein respondent Nuñez.

Meanwhile, the Police Blotter dated October 2, 2008 of the Palompon Police Station stated as follows:

Page No. 0817: Entry No. 3107: Date 02 October 2008: Time 0850 Hours:

One Judge Delia P. Noel Bertulfo, MTC Judge of Palompon, Leyte requested to put into records that on or about 11:19 o’clock in the morning of September 4, 2008 inside her chambers of the Presiding Judge of the Municipal Trial Court of Palompon, Leyte, her money Two (2) PhP 500.00 Bills bearing Serial Number# EM624905 and QZ01286 placed in a bag kept inside the topmost drawer of the filing cabinet was allegedly stolen. For record.

x x x x

In his affidavit, Allan Tubi stated that he is an Investigation Agent III of the NBI, and was tasked with the investigation of crimes punishable under the Revised Penal Code and other Special Penal Laws. He further narrated as follows:

Sometime on September 4, 2008, at around 2:00 o’clock in the afternoon the NBI-EVRO office received a call from Hon. Judge Delia P. Noel-Bertulfo of 8^th Judicial Region, MTC Palompon, Leyte, requesting for immediate assistance for the alleged thievery perpetrated right in her Chamber on even date;

Acting on the said request, undersigned together with Antonio Adona, one of the personnel of NBI-EVRO, proceeded to the area upon instruction from HA Mario Francisco C. Tonelete, Ex-O of NBI-EVRO;

Upon arrival at Palompon, Leyte, particularly at the MTC Palompon, Leyte, undersigned [requested] the Hon. Judge Bertulfo to let all her employees undergo routine interview and fingerprinting [with] which she readily complied;

First to undergo interview and fingerprint was one Dyndee P. Nuñez, Court Aide of MTC Palompon, Leyte;

When undersigned was about to instruct said Dyndee P. Nuñez for us to have his fingerprints, he reluctantly obliged and asked me if indeed we can trace the prints on the doors and drawers inside the Chamber, which I replied in the affirmative. I was further surprised by his actuations when he (Dyndee) told me that he will just confess [to] the theft and sought my help in asking forgiveness from Hon. Judge Bertulfo;

Undersigned informed Dyndee of his rights, specifically his right to remain silent and be assisted by a Legal counsel but still, voluntarily and without hesitation, he started narrating the circumstances behind the theft and he particularly informed this end that [he used] the money x x x to buy fish and poultry feeds for his fighting cocks at the Marilao Agrivet and Vet Store;

Said information was confirmed by one of the store helpers in the person of Randy Peñaranda;

x x x x

On October 13, 2008, respondent Nuñez was required to comment on the instant complaint. This directive was reiterated on November 12, 2008 with warning that upon respondent’s failure to comply within ten days from receipt, the matter shall be deemed submitted for resolution based on the pleadings at hand. The respondent received a copy of the Court’s directive on November 28, 2008. To date, respondent Nuñez still failed to submit his comment. Thus, we are dispensing with its filing and deem the case submitted for resolution.

In its Report and Recommendation dated October 1, 2009, the Office of the Court Administrator recommended that:

RECOMMENDATION: Respectfully submitted for the consideration of the Honorable Court are the following recommendations, to wit:

1. that the instant case be RE-DOCKETED as a regular administrative matter;

2. that respondent Dyndee P. Nuñez, Court Aide of the Municipal Trial Court, Palompon, Leyte be declared GUILTY OF DISHONESTY. In lieu of the DISMISSAL that this offense carries, but which can no longer be effectively imposed because of his earlier resignation, TO ORDER THE FORFEITURE of whatever benefits still due him from the government, except for the accrued leave credits, if any, that he had earned; and

3. that respondent be DISQUALIFIED to be employed in any branch or instrumentality of the government, including government owned and controlled corporations.

We adopt the findings and recommendations of the OCA.

The resignation of respondent Nuñez did not oust the Court of its jurisdiction over him with respect to the administrative case.

As a preliminary matter, we take note of the fact that respondent Nuñez has filed his resignation on September 5, 2008, which was subsequently accepted by the Court, subject to the usual clearance requirements and without prejudice to the continuation of the proceedings in the instant administrative case. Nonetheless, the fact of his resignation and our approval thereof does not render moot the complaint against him. Our jurisdiction over him is not lost by the mere fact that he resigned during the pendency of the case. To deprive this Court of authority to pronounce his innocence or guilt of the charges is undoubtedly fraught with injustices and pregnant with dreadful and dangerous implications.[1] What would prevent a corrupt and unscrupulous government employee from committing abuses and other condemnable acts knowing fully well that he would soon be beyond the pale of the law and immune to all administrative penalties?[2] Resignation should be used neither as an escape nor as an easy way out to evade administrative liability by court personnel facing administrative sanction.[3] As we held in Atty. Perez v. Judge Abiera,[4] "[i]f only for reasons of public policy, this Court must assert and maintain its jurisdiction over members of the judiciary and other officials under its supervision and control for acts performed in office which are inimical to the service and prejudicial to the interests of litigants and the general public. If innocent, respondent official merits vindication of his name and integrity as he leaves the government which he served well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and imposable under the situation".

Respondent Nuñez’ Gross Dishonesty has been clearly established.

Respondent Nuñez is charged with Gross Dishonesty for allegedly taking money from the complainant. Despite directives by this Court to submit his comment or explanation, respondent failed to comply with the same. To us, respondent Nuñez is not at all interested in clearing his name or simply has nothing to say in his defense. What we said in Grefaldeo v. Judge Lacson,[5] therefore, applies to this case:

The natural instinct of man impels him to resist an unfounded claim or imputation and defend himself. It is totally against our human nature to just remain reticent and say nothing in the face of false accusations. Hence, silence in such cases is almost always construed as implied admission of the truth thereof.

In the case of respondent, after the numerous opportunities given her to comment on the charges, no comment came. x x x Consequently, we are left with no choice but to deduce her implicit admission of the charges levelled against her. Qui tacet consentive videtur. Silence gives consent.

In this case, based on the evidence submitted, we find that there is more than substantial evidence to prove that respondent Nuñez is guilty of dishonesty. Ma. Irene R. Legaspi narrated that respondent admitted his culpability. The NBI agent, Allan Tubi, likewise testified that respondent admitted stealing the money of Judge Bertulfo.

Under Section 23, Rule XIV of the Omnibus Civil Service Rules and Regulations, dishonesty is considered a grave offense for which the penalty of dismissal is prescribed even at the first instance. In this case, dismissal can no longer be imposed in view of respondent’s resignation. Thus, in lieu thereof, we hereby order the forfeiture of whatever benefits still due him from the government, except for the accrued leave credits, if any, that he had earned, and his disqualification from further employment in any branch or instrumentality of the government, including government-owned or controlled corporations.

WHEREFORE, respondent Dyndee P. Nuñez is hereby found GUILTY of DISHONESTY. In lieu of the DISMISSAL that his offense carries, but which can no longer be effectively imposed because of his resignation, respondent Nuñez is hereby ordered to suffer the penalty of FORFEITURE of whatever benefits still due him from the government, except accrued leave credits, if any, that he had earned, and is likewise declared to be DISQUALIFIED from employment in any branch or instrumentality of the Government, including government-owned or controlled corporations.

SO ORDERED.

REYNATO S. PUNO

Chief Justice

ANTONIO T. CARPIO Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

ARTURO D. BRION Associate Justice

DIOSDADO M. PERALTA Associate Justice

LUCAS P. BERSAMIN Associate Justice

MARIANO C. DEL CASTILLO Associate Justice

(on official leave)

ROBERTO A. ABAD Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

(on leave)

JOSE P. PEREZ Associate Justice

JOSE C. MENDOZA Associate Justice

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[1] Villanueva v. Milan, 438 Phil. 560, 567 (2002).

[2] Id. at 567-568.

[3] Judge Cajot v. Cledera, 349 Phil. 907, 912 (1998).

[4] 159-A Phil. 575, 581 (1975).

[5] 355 Phil 266, 271 (1998).