Payment of backwages and other Economic Benefits of Judge Iturralde : AM 01-10-12-0 : March 29, 2005 : Atty Puno : En Banc

EN BANC

A.M. No. 01-10-12-0

RE: PAYMENT OF BACKWAGES AND OTHER ECONOMIC BENEFITS OF JUDGE PHILBERT I. ITURRALDE, RTC, BRANCH 58, ANGELES CITY

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated MAR 26 2005.

In a resolution of the Court En Banc dated November 21, 2000 in A.M. No. MTJ-99-1191 entitled “Federico S. Calilung v. Judge Wilfredo S. Suriaga, MTC, Angeles City”, and A.M. No. RTJ-99-1437 entitled “Federico S. Calilung v. Judge Philbert I. Iturralde, RTC, Branch 58, Angeles City”, the Court resolved to dismiss the administrative complaint against Judge Iturralde for insufficiency of evidence and ordered the release of his backwages and other economic benefits which accrued during his preventive suspension.[1]

Pursuant thereto, the amount of P397,156.81 was paid to Judge Iturralde representing backwages and other benefits for the period beginning July 1, 1999 to September 14, 2000. Included therein was his Representation and Transportation Allowance (RATA) in the amount of P126, 350.00 as well as P59, 972.19 in Extraordinary and Miscellaneous Expenses (EME).

On June 26, 2001, Ms. Antonina A. Soria, Officer-in-Charge of the Financial Management Office-Office of the Court Administrator (FMO-OCA), wrote Judge Iturralde requesting for a refund of the amounts corresponding to the RATA and EME on the ground that the latter was not entitled thereto during his preventive suspension, in accordance with the Government Accounting and Auditing Manual (GAAM) which provides:

Section 317. Provisions in the granting of representation and transportation allowance (RATA) – The grant of RATA is subject to the following rules:

. . .

g. An official/employee who was wrongly removed or prevented from performing his duties is entitled to back salaries but not RATA. The rationale for the RATA is to provide the official concerned additional funds to meet necessary expenses incidental to and connected with the exercise or the discharge of the functions of an office. If he is out of office, voluntary or involuntarily, it follows that the functions of the office remain undischarged (COA Dec. 1602, Oct. 23, 1990). And if the duties of the office are not discharged, the official does not and is not supposed to incur expenses. There being no expenses incurred there is nothing to be reimbursed (COA Dec. 2121 dated June 28, 1979).

Section 397. Guidelines for payment of Extraordinary and Miscellaneous Expenses – The officials concerned shall be guided by the following rules:

. . .

c. The entitlement to the benefit shall be on a strictly non-commutable or reimbursement basis. The corresponding claim for reimbursement of such expenses shall be supported by receipts and/or other documents evidencing disbursement, if there are available, or in lieu thereof, by a certification executed by the official concerned that the expenses sought to be reimbursed have been incurred for any of the purpose contemplated under the law or regulation in relation to or by reason of his position. (Underscoring supplied)

Consequently, he was directed to return the amount to the Accounting Division, FMO-OCA, on or before July 31, 2001, otherwise, the same would be deducted from his salary at P10,351.23 per month until fully paid.[2]

Meanwhile, the Court En Banc issued a resolution on August 31, 2001 in A.M. No. P-99-1316, entitled “Kenneth S. Neeland v. Ildefonso M. Villanueva, Jr., Clerk of Court and Ex-Officio Sheriff, Bacolod City, and Nelson N. Abordaje, Sheriff III, Municipal Trial Court in Cities, Br. 4, Bacolod City” exonerating Atty. Villanueva from a charge of grave misconduct and ordering the payment of his back salaries and other economic benefits which accrued during the period that he was wrongfully dismissed from the service. In view thereof, Ms. Soria sent a Memorandum[3] to the Chief Justice, through the OCA, requesting clarification as to whether RATA and EME should be included in the amount to be released to Atty. Villanueva vis-à-vis the above-quoted provisions of the GAAM.

Relatedly, Deputy Court Administrator Jose P. Perez likewise sent a Memorandum[4] to the Chief Justice with the information that the OCA was deferring implementation of the Court’s resolution in Atty. Villanueva’s case pending resolution of the instant matter. He also recommended that pursuant to the provisions of the GAAM, Judge Iturralde should be ordered to refund the amounts corresponding to the RATA and EME.

In the meantime, Judge Iturralde sought clarification from Ms. Cecilia Caga-anan, COA Auditor of the Supreme Court, on his entitlement to RATA and EME during his preventive suspension. According to Judge Iturralde, Ms. Caga-anan informed him verbally that the COA rules cited by Ms. Soria as basis for the refund were already superseded by COA Decision No. 93-3436[5] promulgated on December 2, 1993. Ms. Caga-anan then assured him that the matter will be referred to the COA main office for a more formal response.

Subsequently, in a resolution dated October 23, 2001, the Court noted the memorandum of DCA Perez and resolved to:

. . .

(b) DECLARE that the Representation and Transportation Allowance (RATA) and Extraordinary and Miscellaneous Allowances should not be included in the payment of back salaries and other economic benefits covering the period of an employee’s preventive suspension or the period of his dismissal from the service to the actual date of reinstatement; and

(c) DIRECT Judge Philbert I. Iturralde, RTC, Branch 58, Angeles City, to refund to the Chief, Accounting Division, FMO-OCA, the amount of P186,332.19 representing the overpaid amount which he received in the computation of his back wages and other benefits.[6]

Judge Iturralde moved for reconsideration[7] of the foregoing resolution invoking COA Decision No. 93-3436 but the same was denied for lack of merit.[8] He then filed a Second Motion for Reconsideration citing the case of Atty. Villanueva, not knowing that the implementation of the latter’s case was being held in abeyance. However, the second motion for reconsideration was also denied.[9]

On July 18, 2004, Judge Iturralde requested for a re-examination o our resolution on his entitlement to RATA and EME.[10] He attached thereto a 3^rd Indorsement[11] by Ms. Caga-anan dated August 7, 2002 as well as a 4^th Indorsement[12] dated August 21, 2002 by COA Director Dominador T. Tersol, which embodied the official COA position on the matter. Likewise attached was a letter of Ms. Raquel R. Habitan, Assistant Commissioner and General Counsel of the COA expressing full concurrence with the said indorsements.[13]

The COA confirmed its ruling in COA Decision No. 93-3436 that an employee who was “out of the service” but later on reinstated is entitled to RATA, pursuant to the Court’s decision in Cristobal v. Melchor.[14] It also declared that Section 317(g) of the GAAM is no longer controlling as the COA decisions on which the same was based were already abandoned in COA Decision No. 93-3436. Additionally, the COA opined that since the Court allowed in Gloria v. Court of Appeals[15] the payment of back salaries to one who was preventively suspended, with more reason should the payment of RATA be allowed in Judge Iturralde’s case.

On July 23, 2004, the FMO-OCA submitted a Certification[16] stating that Judge Iturralde’s obligation has not yet been settled. Acting on the same, the Court En Banc issued another resolution[17] dated July 27, 2004 requiring Judge Iturralde to refund the amount of P186,332.19 within ten (10) days from notice and to show cause why he should not be disciplinarily dealt with or held in contempt for failure to refund the overpayment. Meanwhile, his July 18, 2004 letter was treated as another motion for reconsideration and subsequently denied for lack of merit.

In his Compliance with Manifestation and Motion[18] dated August 20, 2004, Judge Iturralde apologized to the Court and averred that he thought all along that the amount would be automatically deducted from his salary, as stated in Ms. Soria’s June 26, 2001 letter. He only learned that the amount would not be deducted from his salary and that he should pay the same in full when he went to the Court’s Finance Division to claim some checks.

At the same time, he pleaded that he be allowed to pay in installments and by way of salary deduction as he could not settle the amount in full. On September 1, 2004, he paid the amount of P126,269.79, leaving a balance of P60,052.40.[19]

On September 4, 2004, the Court received another letter[20] from Judge Iturralde urging the Court to consider COA’s official position on the matter. He pointed out that the RATA and EME were not disallowed by the COA in its 2000 audit. He also appealed to the Court’s sense of fairness and equity especially in these difficult times.

Heeding his plea, the Court once again referred the matter to the OCA which recommended that:

WHEREFORE, we respectfully submit for the consideration of the Honorable Court that: (a) the Compliance (with Manifestation and Motion) of Judge Philip I. Iturralde, RTC, Branch 58, Angeles City dated 20 August 2004 be NOTED; (b) the explanation offered by Judge Iturralde on the show cause order of 27 July 2004 be CONSIDERED UNSATISFACTORY; (c ) JudgeIturralde be DIRECTED to STRICTLY COMPLY with the resolution of 27 July 2004 by paying the remaining overpaid amount of P60,052.40; and (d) to SUBMIT COMPLIANCE therewith, both within a non-extendible period of ten (10) days.[21]

The OCA asserted that the COA Decision NO. 93-3436 was not applicable because the official involved therein was illegally dismissed or removed unlike in this case where Judge Ituralde was only preventively suspended pending investigation. The OCA also suggested that in accordance with our ruling in Gloria v. Court of Appeals, Judge Iturralde was not entitled even to the payment of back salaries and other economic benefits.

The main question raised before us is whether or not Judge Iturralde, who was preventively suspended pending investigation of an administrative charge but later on exonerated therefrom, is entitled to receive his RATA and EME for the period of the preventive suspension.

The COA Decision No. 93-3436, held that :

The issue should now be answered in the affirmative. Aware of the prevailing jurisprudence enunciated in the case of Cristobal vs. Melchor, and conformably to the recent pronouncement of the Supreme Court in G.R. No. 91730 (Conrado B. Maglaya vs. Hon. Catalino Macaraig, et al.) under Resolution dated January 19, 1993 and in G.R. NO. 104539 (Braulio S. Dayday vs. Hon. Bartolome S. Carale and Hon. Eufemio S. Domingo) under Resolution dated September 2, 1993, to the effect that those officials previously entitled to RATA who were illegally dismissed or removed, should be paid their RATA covering the period that they were out of the service, this Commission perceives no legal impediment to granting the present claim of Dr. Cesar for RATA during the period in question.[22] (underscoring supplied)

Notably, the foregoing decision, as well as the cases cited therein, pertain to civil service officials and employees who were illegally dismissed or removed from office. In allowing the payment of RATA to these officials and employees, the COA applied the principle enunciated in Cristobal v. Melchor that “when a government official or employee in the civil service had been illegally suspended or illegally dismissed, and his reinstatement had later been ordered, for all legal purposes he is considered as not having left his office, so that he is entitled to all the rights and privileges that accrue to him by virtue of the office that he held.”[23]

On the other hand, we held in Gloria v. Court of Appeals that civil service officials and employees who were preventively suspended pending investigation are not entitled to back salaries, allowances and other emoluments during the period of preventive suspension even if they were exonerated later on. The Court explained:

The preventive suspension of civil service employees charged with dishonesty, oppression or grave misconduct, or neglect of duty is authorized by the Civil Service Law. It cannot, therefore, be considered “unjustified,” even if later the charges are dismissed so as to justify the payment of salaries to the employee concerned. It is one of those sacrifices which holding a public office requires for the public good. For this reason, it is limited to ninety (90) days unless the delay in the conclusion of the investigation is due to the employee concerned. After that period, even if the investigation is not finished, the law provides that the employee shall be automatically reinstated.[24] (Underscoring supplied)

We also declared that the rule is different when a government official or employee is suspended pending appeal. This happens when the disciplining authority imposes the penalty of suspension or dismissal, which is immediately executory, and the official or employee appeals from the decision of the former and is later on exonerated. We ruled that in such a case, the official or employee would be entitled to back salaries, allowances and other emoluments of the office because the suspension then becomes unjustified. Thus, we held:

Nothing in what has thus far been said is inconsistent with the reason for denying salaries for the period of preventive suspension. We have said that an employee who is exonerated is not entitled to the payment of his salaries because his suspension, being authorized by law, cannot be unjustified. To be entitled to such compensation, the employee must not only be found innocent of the charges but his suspension must likewise be unjustified. But though an employee is considered under preventive suspension during the pendency of his appeal in the event he wins, his suspension is unjustified because what the law authorizes is preventive suspension for a period not exceeding 90 days. Beyond that period the suspension is illegal. Hence, the employee concerned is entitled to reinstatement with full pay. Under existing jurisprudence, such award should not exceed the equivalent of five years pay at the rate last received before suspension was imposed.[25]

Simply stated, preventive suspension pending investigation for a period not exceeding ninety (90) days is authorized by law, therefore, valid. The suspension being justified, the civil service official or employee is therefore not entitled to the payment of his salaries and other benefits. On the other hand, a civil service official or employee is entitled to back salaries, allowances and other benefits which accrued during the period that he was suspended pending appeal, if eventually exonerated.[26]

It being clear that a civil service official or employee is not entitled to back salaries, allowances and other benefits that accrued during the period of his preventive suspension pending investigation, which period must not exceed ninety (90) days, the question that now arises is whether the same is applicable in the case of Judge Iturralde who was preventively suspended pending investigation “until further orders” and was, in fact, actually reinstated only after judgment exonerating him of the charge had been rendered.

Initially, it must be emphasized that the power to discipline judges of lower courts is vested in the Supreme Court.[27] In the exercise of this power, the Court has promulgated rules of procedure in the discipline of judges embodied in A.M. No. 01-8-10-SC.[28] Under said rules, if an administrative complaint against a judge is sufficient in form and substance, he is required to comment on the complaint, after which a formal investigation commences. The procedure for such investigation is provided thus:

SEC. 3. By whom complaint investigated.- Upon the filing of the respondent’s comment, or upon the expiration of the time for filing the same and unless other pleadings or documents are required, the Court shall refer the matter to the Office of the Court Administrator for evaluation, report and recommendation or assign the case for investigation, report and recommendation to a retired member of the Supreme Court, if the respondent is a Justice of the Court of Appeals and the Sandiganbayan, or to a Justice of the Court of Appeals, if the respondent is a Judge of a Regional Trial Court or of a special court of equivalent rank, or to a Judge of the Regional Trial Court if the respondent is a Judge of an inferior court.

SEC. 4. Hearing. – The Investigating Justice or Judge shall set a day for the hearing and send notice thereof to both parties. At such hearing, the parties may present oral and documentary evidence. If, after due notice, the respondent fails to appear, the investigation shall proceed ex parte.

The Investigating Justice or Judge shall terminate the investigation within ninety (90) days from the date of commencement or within such extension as the Supreme Court may grant. (Underscoring supplied)

The above rules took effect on October 1, 2001.[29] Prior to the same, the applicable rules could be found in the former Rule 140 of the Rules of Court which did not provide for a specific period within which investigation was supposed to be terminated by the investigating authority.[30] At any rate, before Rule 140 was amended by A.M. No. 01-8-10-SC, the Court was guided by civil service rules on the matter, specifically Civil Service Memorandum Circular No. 19-99. The latter, which the Court applied suppletorily to the former Rule 140, prescribes the following:

Section 20. Duration of Preventive Suspension. – When the administrative case against an officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of his preventive suspension, unless otherwise provided by special law, he shall be automatically reinstated in the service; provided that, when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay should not be included in the counting of the 90 calendar days period of preventive suspension. Provided further that should the respondent be on Maternity/Paternity leave, said preventive suspension shall be deferred or interrupted until such time that said leave has been fully enjoyed.

Accordingly, the Court has referred an administrative charge against a judge to the proper investigating authority for investigation, report and recommendation within a period that does not ordinarily exceed ninety (90) days. Whether under the former Rule 140 or under the amendments introduced by A.M. NO. 01-8-10-SC, the investigating authority is given ninety (90) days to conclude his investigation of the matter. As the Court declared in Hon. Gonzales v. Dr. Gayta:[31]

The law considers ninety (90) days as enough time for the investigation and adjudication of an administrative case, counted from the date of suspension of the respondent. This will include not only the filing of required or permitted pleadings and the reception of testimonial, documentary and object evidence, but also the consideration and resolution of incidental motions filed in good faith, with no intent to delay the disposition of the case. The investigating officer is expected to exert and maintain control of the case to ensure, within the time thus appointed, the orderly and full ventilation of the parties’ positions and the expeditious progress and ultimate adjudication of the proceeding. If the investigating officer fails in this function and is thus unable to decide the case within ninety (90) days, or the difficulty or complexity of the case, or other fortuitous cause precludes decision thereof within said period, reinstatement of the suspended respondent becomes mandatory.

However, unlike ordinary civil service officials and employees, judges who are charged with a serious offense warranting preventive suspension are not automatically reinstated upon expiration of the ninety (90) -day period, as mandated above. The Court may preventively suspend a judge until a final decision is reached in the administrative case especially where there is a strong likelihood of his guilt or complicity in the offense charged. Indeed, the measure is intended to shield the public from any further damage or wrongdoing that may be caused by the continued assumption of office by the erring judge. It is also intended to protect the courts’ image as temples of justice where litigants are heard, rights and conflicts settled and justice solemnly dispensed.[32]

This is a necessary consequence that a judge must bear for the privilege of occupying an exalted position. Among civil servants, a judge is indeed in a class all its own. After all, in the vast government bureaucracy, judges are beacon lights looked upon as the embodiment of all what is right, just and proper, the ultimate weapons against justice and oppression.[33]

Be that as it may, we cannot in conscience hold that a judge who was placed under preventive suspension pending investigation is not entitled to the payment of back salaries, allowances and other economic benefits for the entire duration of the preventive suspension. The inequity of the doctrine as applied to judges is clearly apparent, given the peculiar circumstance in which a judge finds himself preventively suspended by the Court “until further orders”.

In this case, Judge Iturralde was preventively suspended for 13½ months, during which period he was not paid his salaries, allowances and other benefits. Except for a teaching job that the Court permitted him to undertake pending resolution of the administrative case, Judge Iturralde has no other source of income. He thus incurred several loans to provide for his family’s basic needs.

It would thus be unjust to deprive Judge Iturralde of his back salaries, allowances an other economic benefits for the entire period that he was preventively suspended. As we have said in Gloria v. Court of Appeals, preventive suspension pending investigation is not a penalty but only a measure intended to enable the disciplining authority to conduct an unhampered formal investigation.[34] We held that ninety (90) days is ample time to conclude the investigation of an administrative case. Beyond ninety (90) days, the preventive suspension is no longer justified. Hence, for purposes of determining the extent of back salaries, allowances and other benefits that a judge may receive during the period of his preventive suspension, we hold that the ninety-day maximum period set in Gloria v. Court of Appeals, should likewise be applied.

Concededly, there may be instances when an investigation would extend beyond ninety (90) days and such may not be entirely unjustified. Nevertheless, we believe that in such a situation, it would be unfair to withhold his salaries and other economic benefits for the entire duration of the preventive suspension, moreso if the delay in the resolution of the case was not due to his fault. Upon being found innocent of the administrative charge, his preventive suspension exceeding the ninety-day (90) period actually becomes without basis and would indeed be nothing short of punitive. It must be emphasized that his subsequent acquittal completely removed the cause for his preventive suspension in the first place. Necessarily, therefore, we must rectify its effects on just and equitable grounds.

Finally, RATA and EME should be included in the allowances and benefits that Judge Iturralde must receive. In an unsigned resolution of the Court dated September 2, 1993 in G.R. No. 104539 entitled Baraulio S. Dayday v. Hon. Bartolome S. Carale as Chairman of the National Labor Relations Commission and Hon. Eufemio C. Domingo, as Chairman of the Commission on Audit, we had occasion to hold that:

The question of whether the NLRC Commissioners who were unlawfully removed from office upon the enactment of R.A. No. 6715, are entitled to RATA although they ceased to discharge their duties as such upon their unlawful removal from office, was laid to rest by the Resolution dated January 19, 1993 of this Court in G.R. No. 91730 entitled, “Conrado B. Maglaya vs. Hon. Catalino Macaraig, etc., et.al., where we held:

“Certain it is that had not the petitioner been unlawfully removed from his office as NLRC Commissioner and had therefore continued discharging his duties as such during the time of his illegal separation, he would have received his RATA during that period, being unquestionably entitled thereto, in addition to his salaries and other monetary benefits under the law. His illegal removal from that position of course effectively precluded his discharging the duties and responsibilities of his office, resulting in his being deprived also illegally, of the right to receive his RATA, salaries and other benefits. The Court perceives no reason why the movant should be penalized by the loss of some monetary benefits attached to his position as Commissioner, from which he had been unlawfully excluded for a time, upon the theory that precisely because of that unlawfully exclusion, and during the period thereof, he had not performed his duties and functions.”

Similarly, we do not perceive any reason why Judge Iturralde should be penalized by the loss of some monetary benefits that are attached to his position, when he certainly would have been entitled thereto had he not been charged with an administrative offense that turned out to be baseless. While it is true that he was excluded from office not by some illegal act, he was nonetheless prevented from assuming office through no fault of his own. We hold, therefore, that the above pronouncement, upon which COA Decision No. 93-3436 was based, should likewise apply to Judge Iturralde. He is thus entitled to RATA and EME as well as the other economic benefits appended to his position.

ACCORDINGLY, Judge Philbert I. Iturralde is entitled to back salaries, allowances and other economic benefits, INCLUDING RATA and EME, during the period of his preventive suspension in A.M. No. RTJ-99-1437, EXCLUDING that which accrued during the ninety (90) – day period of preventive suspension pending investigation. The FMO-OCA is thus ordered to RE-COMPUTE the total amount thereof and to RETURN to Judge Iturralde any overpayment that the latter has made or for Judge Iturralde to REFUND the balance due on the re-computed amount, if any.

Very truly yours,

(Sgd.) LUZVIMINDA D. PUNO

Clerk of Court

[14] G.R. No. L-43203, 29 December 1980, 101 SCRA 857.

[23] Cristobal v. Melchor, supra, citing Tamala v. Legaspi, 121 Phil. 541 (1965).

[25] Id. at 765, citing Miranda v. Commission on Audit, G.R. No. 84613, 16 August 1991, 200 SCRA 657, and cases cited therein.

[26] See also Caniete v. Secretary of Education, Culture and Sports, 389 Phil. 364 (2000).

[27] Section 11, Article VIII, 1987 Constitution.

[29] Section 12, 2^nd paragraph, A.M. No. 01-8-10-SC.

[30] The former Rule 140 simply provides:

SEC. 3. Answer; hearing. – Upon the filing of respondent’s answer or upon the expiration of the time for its filing, the court shall assign one of its members, a Justice of the Court of Appeals or a judge of first instance to conduct the hearing of the charges. The Justice or judge so assigned shall set a day for the hearing, and notice thereof shall be served on both parties. At such hearing, the parties may present oral or written evidence.

SEC. 4. Report. – After the hearing, the justice or judge shall file with the Supreme Court a report of his findings of fact and conclusions of law, accompanied by the evidence presented by the parties and the other papers in the case.

[32] Alumbres v. Caoibes, 425 Phil. 55, 64 (2002), citing Merilo-Bedural v. Edroso, A.M. No. 00-1395, 12 October 2000, 343 SCRA 593.

[33] Employees of the RTC of Dagupan City v. Judge Falloran-aliposa, 384 Phil. 168, 191, citing Lao v. Abellita III, 356 Phil. 575 (19998).