A.M. No. P-96-1199




Manila THIRD DIVISION A.M. No. P-96-1199 October 13, 1997 JUDGE VLADIMIR BRUSOLA, complainant, vs. EUDARLIO B. VALENCIA, JR., Staff Assistant II respondent. R E S O L U T I O N FRANCISCO, J.: This administrative case arose from a letter-complaint dated December 23, 1992 of Hon. Vladimir Brusola, Acting Presiding Judge of Branch 5, RTC, Legazpi City, complaining about the habitual absenteeism of herein respondent Eudarlio B. Valencia, Jr., Staff Assistant II, RTC, Branch 5, Legazpi City. Also forwarded are the leave applications of said respondent for the period from March 17 to June 30, 1992 which applications were disapproved by Judge Brusola with the request that the matter be looked into and thereafter the respondent-employee be strongly recommended to be dropped from the roll of employees. The reasons given by Judge Brusola in disapproving respondent's aforementioned leave applications are as follows: 1. The alleged attending physician who issued the medical certificate is a private doctor and the same is not made under oath; 2. The veracity is seriously doubtful because subject employee is a resident of Legazpi City while the alleged doctor is a resident of and with clinic at Sorsogon, another province 55 kilometers away thus, a daily home visit from March 17 to 31 or 15 days is highly unbelievable; 3. That the sick leave application was filed after the lapse of more than eight (8) months of absenting himself; 4. That respondent has no more leave credits; 5. That there is a pattern of habitual absenteeism if not AWOL; 6. That the leave application was filed merely to remedy unauthorized absence or AWOL. 1 Likewise, the respondent's vacation leave from April 1 to 15; April 20 to 30; May 4 to 5; May 18 to 29; June 1 to 15; and June 16 to 30, 1992 were also disapproved by Judge Brusola basically on the same grounds stated above. On April 7, 1993, the matter was referred to Hon. Executive Judge Rafael Santelices, RTC, Legazpi City for investigation. And on May 24, 1995, this Court received the report and recommendation of Judge Wenceslao R. Villanueva, Jr., the details of which were summarized by the Office of the Court Administrator in his memorandum dated April 23, 1996 as follows: The initial hearing was set on May 4, 1993. Respondent filed his Answer dated July 6, 1993 denying the specifications alleged under Paragraphs 1 to 8 of the letter-complaint, especially the context thereof, for the reason that the matter treated therein has been rendered moot and academic by the findings reached and the administrative penalty imposed by the Supreme Court per letter dated June 4, 1992 of the Deputy Clerk of Court and Chief Administrative Officer Adelaida Cabe-Baumann to the respondent whereby the respondent was found to have incurred eighty-four (84) days of unauthorized absences and was accordingly penalized by considering said period to be leave without pay. That as penalty, the corresponding amount of salary was withheld from respondent; and that said penalty was imposed at the instance of the complainant although the factual basis supplied by the complainant is incorrect. In support of his action of recommending disapproval of respondent's sick and vacation leave applications, Judge Brusola testified, among others, that the vacation and sick leave applications of respondent from March 17 to June 30, 1992 were received by him only on one occasion — on December 9, 1992 or six (6) to eight (8) months after the leaves were taken (TSN, p. 27, November 3, 1994). That when these applications for leave were received by his office and were examined, he noted that the application is only in support of a remedy to cover up his unauthorized absences on those aforementioned dates (TSN, p. 38, November 3, 1994); and finding that the reasons for the leave to be not meritorious, he decided to prepare his letter dated December 23, 1992 stating therein the reasons why the leave applications should be disapproved considering that in the leave form, the reason for its approval or disapproval on the space thereon provided is not sufficient (TSN, pp. 27-28, November 3, 1994). Elucidating further on his reasons for recommending his disapproval of the leave applications, Judge Brusola alleged that the attending physician of respondent is a private doctor and the medical certificates he issued are not under oath. That the medical certificates attached to the sick leave applications should have been under oath so that the doctor could be held liable if he issues false medical certificates. That the doctor, who is a resident of Sorsogon and has a clinic there was to travel a distance of 100 kilometers just to visit daily his patient, the respondent herein, in Legazpi City, who was allegedly sick of acute gastritis from March 17 to March 31, 1992 or influenza from April 20 to 30, 1992 or acute nasal pharyngitis from May 18 to 31, 1992 or acute respiratory tract infection from June 16 to 30, 1992, is highly doubtful (TSN, p. 30, November 3, 1994). That respondent has no more leave credits in his favor since respondent had been declared AWOL on October 16, 1991 and the Supreme Court withheld already his salary for the period when he did not report for work. That the respondent who is an employee of Regional Trial Court, Branch 5, and therefore under the administrative supervision of the complainant has not reported for work and has not shown his face in office from March 17, 1992 up to June 30, 1992 (TSN, p. 51, November 3, 1994). Testifying on his own behalf, respondent alleged, among others, that he filed his leave applications on December 9, 1992 because previously, he already tendered his leave applications to Miss Almonte who refused to receive his leave applications. That it was sometime in the month of March, 1992, when he first tendered his leave applications. That Miss Almonte refused to accept his leave applications because according to her it was already filed late. That he explained to her that he could not file a sick leave in advance as he does not know when he is going to be sick. That he also directly filed his daily time records to the Office of the Court Administrator because Miss Almonte refused to receive his daily time records. Another reason also why he submitted his daily time records including his leave applications and medical certificates to the Court Administrator was because Judge Brusola automatically denied it (TSN, pp. 6-8, January 31, 1995, Eudarlio Valencia, Jr.). But in the leave applications he filed through his wife on December 9, 1992, the ground stated in his leave applications, among others, was that respondent was sick as evidenced by the medical certificate. With respect to his vacation leave of absence, the ground for filing late was that his doctor advised him to rest also substantiated by medical certificates which were all first tendered to Miss Almonte but which the latter refused to receive it. The original documents which he attempted to file with Miss Almonte were already lost in his drawer when he was detailed in the Office of the Clerk of Court. He renewed the filing of his leave applications because he wanted to file his leave applications and the reason why he filed his leave applications for vacation leave, not sick leave, after he has incurred his absence and not before was because he was staying in his father's house in Sorsogon and that his doctor advised him to rest and this is the reason why he cannot come to Legazpi. Although he has living quarters here in Legazpi City, he had been treated in Sorsogon for the reason that his father, who is also an RTC Judge, was the one paying the doctor's fees as well as medicines because he has only a meager salary as an employee. Whenever he was on vacation leave, he requested his wife to tell Miss Almonte that he will be coming back to office after he has already recovered. His wife really informed Miss Almonte verbally sometime in April, 1992 that he will be on vacation leave from April 1 to 15, 1992. When he was again on vacation leave from May 4 to 15, 1992, he tried to file his vacation leave in advance (TSN, p. 20, January 31, 1995) through his wife but Miss Almonte refused to receive it also. Miss Almonte refused to receive his previous leave applications delivered through his wife because Miss Almonte wanted to make it appear that the leave applications were filed very late and that she wanted the respondent to be removed from office so that he can be replaced. Respondent does not deny that he was absent in office from March 17, 1992 up to the end of June, 1992; neither does he deny that he filed his leave applications, through his wife, only on December 9, 1992 (TSN, p. 6, Jan. 31, 1995, E. Valencia). However, he tries to justify the late filing of his leave applications as follows: 1. That he had already previously tendered for about three (3) times his leave applications to Miss Virginia Almonte, RTC, Branch Clerk of Court, the first of which was sometime in April, 1992, but Miss Almonte refused to accept the same; 2. That he cannot file his application for sick leave in advance because he does not know when he is going to be sick. That his sick leave applications are evidenced by medical certificates; 3. That his vacation leave applications were filed after he had incurred his absences and not before because he was staying in his father's house in Sorsogon and his doctor advised him to rest (TSN, p. 6, Jan. 31, 1995, E. Valencia); 4. That although he and his family (wife and 5 children) have lived in Legazpi City, on those occasions, as stated in his sick leave of absence, he had been treated in Sorsogon, Sorsogon, for the reason that his father was the one who paid for his doctor's fees as well as his medicines (TSN, p. 14, Jan. 31, 1995, E. Valencia). Having found the charges against respondent meritorious, investigating Judge Villanueva recommended the imposition on respondent of a FINE corresponding to one (1) month salary with a stern warning that a similar infraction in the future will be dealt with more severely. It indeed appears that respondent is guilty of frequent and unauthorized absences, as charged. The following observations made by the investigating judge truly rendered respondent's attempt to justify his infraction unsatisfactory, to wit: (1) There is no proof whatsoever of respondent's allegations, except respondent's own testimony, that before December 9, 1992, he had personally or through his wife tried to tender his leave applications in Branch 5, but that the Branch Clerk of Court thereof, Atty. Almonte, refused to receive it. On the contrary, Atty. Almonte categorically stated that before December 9, 1992, there was no time or moment at all when respondent or his wife ever tried to file in her office respondent's March 17 to June 30, 1992 leave applications. Atty. Almonte testified, as follows: COURT: Q. Now, respondent Eudarlio Valencia, Jr. has been on sick or vacation leave from March 17, 1992 to June 30, 1992. When was it when he filed his sick or vacation leave in your office? WITNESS: A. It was December 9, 1992. Q. Who filed it in your office? A. It was brought by his wife. Q. You accepted it? A. I received it and then I endorsed it to the Judge. Q. Now, for his absences from March 17, 1992 to June, 1992, did he personally, referring to the respondent or his wife or any person for that matter, attempt to file his application for leave of absence in your office? A. That it was that time that the applications were presented to the office by the wife. That was December 9, 1992. Q. Now, my question is, before that date December 9, 1992, was there anybody, respondent himself, his wife or any person for that matter also who attempted to file his vacation or sick leave in your office? A. There was none, your honor. Q. You are sure of that? A. Yes, your honor. Q. Respondent categorically stated that sometime on March and June his wife or himself tried to file his application for sick leave of absence but you refused. Do you recall that? A. I did not refuse because I would have indicated stamp received on whatever he will file as it could be shown by this document. Q. Was there any time or moment when the respondent tried to file his applications but you refused because of late filing? A. No I did not refuse because I could not refuse it, if it was filed then I have to refer it to the Judge because I could not act on that anymore. Q. But you will accept it? A. Sure. 2 (2) Respondent contends that he could not file in advance his application for sick leave because he can not anticipate when he will have an illness, nevertheless, it is incumbent on him to file his sick leave application immediately after his recovery. And even assuming, although it is incredible because his wife and children stays in Legazpi City, that during the time that he was sick or was on vacation leave, he was staying with his parents in Sorsogon, respondent could still timely file his leave applications through his wife, a court stenographer of RTC, Branch 4 of Legazpi City, who frequently visits him every Saturday and Sunday in Sorsogon, Sorsogon.ℒαwρhi৷ (3) Complainant Judge Brusola's action recommending disapproval of respondent's sick and vacation leave applications in his letter-complaint for the reasons stated therein is self-explanatory. More, the records show that Ms. Rowena Benipayo of the Supreme Court Administrative Services sent respondent a letter, dated November 19, 1992, requiring respondent to submit his Daily Time Records for the months of March, April, May and June, 1992. 3 Subsequently, on January 13, 1993, Ms. Benipayo also sent a letter to Atty. Almonte, Clerk of Court of RTC, Branch 5, attaching thereto the Daily Time Record of respondent for the Clerk of Court's verification and signature. 4 In reply, Atty. Almonte informed Ms. Benipayo in a letter dated January 22, 1993 5 that respondent had been absent for the months of March, April, May and June, 1992, except on March 2, 4, 5, (a.m.) 11, 12, 13 and 16 (a.m.) without any application for leave filed in accordance with the Civil Service Rules; that the daily time records of respondent Valencia for the months of March, April, May and June, 1992, do not reflect his correct office attendance during said periods as his numerous and continuous absences were without prior permission and/or approval from the court and that in view thereof, she cannot sign the aforesaid daily time records of respondent. These aforementioned letters indubitably show respondent's tardiness in submitting his daily time records and leave applications in violation of the Civil Service Rules thereby rendering his absences from March 17 to June 30, 1992 as unauthorized absences. In his Answer to Judge Brusola's letter-complaint, respondent attached the letter dated June 4, 1992 of Supreme Court Deputy Clerk of Court and Chief Administrative Officer Adelaida Cabe-Baumann in an attempt to show that respondent who had incurred 84 days of "unauthorized absences" and tardiness equivalent to 23.5 days from March, 1991 to February 1992 (Exh. "2-A") was already administratively penalized whereby said period of "unauthorized absences" were considered to be "leave without pay" and as penalty, the corresponding amount of his salary was withheld. But this fact of unauthorized absences only bolsters complainant Judge Brusola's allegation of respondent's "pattern of habitual absenteeism if not AWOL." Relevant hereto is Section 22 of the Omnibus Rules Implementing Book V of E.O. No. 292, which considers an officer or employee in the Civil Service to be "habitually absent if he incurs unauthorized absences exceeding the allowable 2.5 days monthly credit under the Leave Law for at least 3 months in a semester or at least 3 consecutive months during the year." Also: Any employee shall be considered habitually tardy if he incurs tardiness, regardless of number of minutes, ten (10) times a month for at least 2 months in a semester or at least 2 consecutive months during the year. In case of claim of iii-health, heads of departments of agencies are encouraged to verify the validity of such claim and, if not satisfied with the reason given, should disapprove the application for sick leave. On the other hand, cases of employees who absent themselves from work before approval of the application should be disapproved outright. (Emphasis supplied). Applications for vacation leave of absence for one full day or more shall be submitted on the prescribed form for action by the proper chief of agency in advance, whenever possible, of the effective date of such leave.6 Employees applying for vacation leave, whenever possible, must submit in advance their applications for leave. This requirement must be complied with assiduously "its purpose being undoubtedly to enable the management to make the necessary adjustment in order that the work may not be paralyzed" 7 or hampered. Moreover, respondent's contention that the withholding of his salary amounts to a penalty does not hold water, for the object of the withholding of his salary is merely to bar him from receiving his salary for the period he did not work as he has no leave credits wherein his absences can be charged. This Court, however, can not agree with the recommended penalty of fine and warning by the investigating judge for it is not in accord with Civil Service Memorandum Circular No. 30, Series of 1989, which classified habitual absenteeism as a GRAVE OFFENSE. Under this Circular, frequent unauthorized absences or tardiness in reporting for duty, loafing, or frequent unauthorized absences from duty during regular office hours is penalized, if found guilty on the first offense, with suspension from six (6) months and one (1) day to one (1) year, and for the second offense with dismissal from the service. It is, therefore, the penalty of suspension that should be imposed on respondent. WHEREFORE, respondent EUDARLIO B. VALENCIA, JR. is hereby meted the penalty of suspension for six (6) months and one (1) day with a stern warning that his commission of similar acts in the future will account for his dismissal from the service. SO ORDERED. Narvasa, C.J., Romero, Melo and Panganiban, JJ., concur. Footnotes 1 Report of Hon. Wenceslao R. Villanueva, Jr., Designated Investigating Judge, April 20, 1995, pp. 1-2. 2 TSN, pp. 28-30, January 31, 1995, V. Almonte. 3 Records, p. 38. 4 Records, p. 39. 5 Records, p. 40. 6 Sec. 15, Rule XVI of the Omnibus Rules Implementing Book V of E.O. No. 292. 7 Operators, Inc. vs. National Labor Union, 108 Phil. 290, 292-293; Annotation on Absence, 14 SCRA 934. The Lawphil Project - Arellano Law Foundation