SECOND DIVISION
[A.M. No. P-15-3404. December 2, 2015.]
JUDGE CESAR P BORDALBA, complainant,vs. RENE M. FERNAN, PROCESS SERVER, BRANCH 1, MUNICIPAL TRIAL COURT IN CITIES, SURIGAO CITY, SURIGAO DEL NORTE, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated 02 December 2015 which reads as follows: AaCTcI
"A.M No. P-15-3404 [Formerly OCA IPI No. 13-4023-P] (Judge Cesar P. Bordalba v. Rene M. Fernan, Process Server, Branch 1, Municipal Trial Court in Cities, Surigao City, Surigao del Norte)
In his verified complaint, 1 dated November 13, 2012, before the Office of the Court Administrator (OCA), Judge Cesar P. Bordalba (complainant), Presiding Judge of the Municipal Trial Court in Cities, Branch 1, Surigao City (MTCC), accused Rene M. Fernan (respondent), the MTCC process server, of gross inefficiency and dereliction of duty resulting in the delay of the administration of justice.
Complainant's Position
According to complainant, respondent was remiss in his duties as he had failed to serve subpoenas and other court processes in numerous instances. He alleged that as early as May 20, 1998, the previous presiding judge of the MTCC had cited respondent in contempt and meted out a penalty of P200.00 fine for the delay of almost two (2) years in making a return of service of the order requiring the submission of counter-affidavits of the accused in a criminal case.
Complainant further claimed that on April 29, 2005, the Clerk of Court of the MTCC sent a letter to respondent enumerating the list of criminal cases and required him to serve the orders thereof, which were either unserved or not returned, despite the lapse of a reasonable period of time; that on March 28, 2008, he issued a memorandum to respondent for his failure to serve the orders in criminal case covered by the Rules on Summary Procedure, which were pending before the MTCC from 2003 up to 2007, requiring the accused therein to submit their counter-affidavit; and on August 27, 2009, respondent failed to serve the judgment in another criminal case, which delayed the release of the accused therein for 21 days, and for which a memorandum was again sent to him to explain his side but he did not comply. EcTCAD
Further, on November 8, 2011, one of the lawyers of the parties in a criminal case complained that he received the notice of hearing only in the morning of the date of the hearing. On the same date, the reception of evidence for the prosecution in another criminal case was postponed because respondent failed to timely serve the subpoena to the witness. In both instances, he was made to explain but failed to do so.
Again, on February 3, 2012, the continuation of the reception of evidence in a criminal case was postponed because respondent failed to serve the subpoena to the witness on time.
Respondent's Position
In his Comment, 2 dated February 25, 2013, respondent admitted all the allegations against him. He acknowledged that his performance as a process server had dipped in recent years due to personal/family issues he encountered.
Respondent did not offer any excuse or defense and expressed willingness to accept the consequences of his shortcomings, but he begged for forgiveness and pleaded for mercy in hopes that his punishment be tempered. Respondent also claimed that his personal problems had passed and expressed readiness to perform his duties as expected of him. He vowed that given another chance, he would no longer repeat his errors and wrongdoings.
Report and Recommendation
In its Report and Recommendation, 3 dated August 17, 2015, the OCA found respondent guilty of gross neglect of duty.
The OCA found that respondent's repeated failure to serve summons seriously compromised the court's efficiency and hampered public service, for which the penalty of dismissal from the service should be imposed. It, however, considered respondent's contriteness, his promise to reform his ways and the fact that this was his first offense in his twenty-three (23) years of service, as mitigating circumstances, warranting the imposition of a fine, instead of dismissal from service.
The OCA recommended that the case be re-docketed as a regular administrative matter; that respondent be found guilty of gross neglect of duty and be fined in the amount P40,000.00; and that he be sternly warned that a repetition of the same or similar acts shall be dealt with more severely by the Court. HSAcaE
The Court's Ruling
The Court adopts the recommendation of the OCA.
Simple neglect of duty is the failure of an employee to give proper attention to a required task or to discharge a duty due to carelessness or indifference. 4 Gross neglect of duty, on the other hand, is characterized by want of even the slightest care, or by conscious indifference to the consequences, or by flagrant and palpable breach of duty. 5
The OCA is correct in finding that the repeated failure of respondent to perform his duty as process server constituted gross neglect of duty. A process server's primary duty is to serve court notices, which precisely require utmost care on his part by ensuring that all notices assigned to him are duly served on the parties. His failure to serve summons resulting in the delay of the resolution of the case constitutes gross neglect of duty. 6 It is irritating and exasperating to his superior who is expected to render justice within a reasonable time.
Respondent categorically admitted all the allegations against him. His failure to diligently and competently perform his duties as process server caused delay in numerous cases, including the delay of the release of the accused in one criminal case. Gross neglect of duty is a grave offense which merits the penalty of dismissal from service even for the first offense. 7
The Court, nevertheless, agrees with the recommendation of OCA that only a fine, instead of dismissal, be meted out to respondent for his infractions, in light of the surrounding circumstances. In Office of the Court of Administrator v. Perez, 8 the Court tempered the penalty of dismissal for a clerk of court found guilty of gross neglect of duty, a grave offense, and instead imposed a fine, to wit:
However, jurisprudence on administrative cases abounds with instances wherein the Court has refrained from imposing the actual penalties in view of mitigating circumstances. Certain conditions such as length of service, the respondent's acknowledgement of his or her transgressions and feeling of remorse, family circumstances, humanitarian and equitable considerations have altered the implications of a respondent's infractions.
Likewise, it has been a guiding principle for the Court that where a penalty less punitive would suffice, whatever missteps may be committed by labor ought not to be visited with a consequence so severe. It is not only for the law's concern for the workingman; there is, in addition, his family to consider. Unemployment brings untold hardships and sorrows on those dependent on wage earners. 9
Respondent has been with the Judiciary for twenty-three (23) years. He had performed his duties faithfully for many of those years, except recently when he committed those infractions averred in the present complaint. Respondent admitted his shortcomings with humility and never tried to exculpate himself but instead asked for forgiveness. He promised that he would not waste a second chance as he would strive to perform better than he did before. These circumstances, taken together, justify mitigating the penalty to be imposed. HESIcT
WHEREFORE, finding respondent Rene M. Fernan, Process Server of the Municipal Trial Court in Cities, Branch 1, Surigao City, GUILTY of gross neglect of duty, the Court hereby imposes the penalty of FINE in the amount of P40,000.00 with a STERN WARNING that a repetition of the same or a similar act will be dealt with more severely. (Carpio, J., on official leave; Del Castillo, J., designated Acting Chairperson per Special Order No. 2281 and Velasco, Jr., J., designated Acting Member per Special Order No. 2282, both dated November 13, 2015; Brion, J., on official leave; Perez, J., designated Acting Member, per Special Order No. 2301, dated December 1, 2015)
SO ORDERED."
Very truly yours,
(SGD.) MA. LOURDES C. PERFECTODivision Clerk of Court
Footnotes
1. Rollo, pp. 1-14.
2. Id. at 31-33.
3. Id. at 34-36.
4. Re: Report of Atty. Caridad A. Pabello, A.M. No. 2014-07-SC, July 8, 2015.
5. Office of Court Administrator v. Viesca, A.M. No. P-12-3092, April 14, 2015.
6. Rodrigo-Ebron v. Adolfo, 550 Phil. 499 (2007).
7. Office of the Court Administrator v. Viesca, supra note 5.
8. A.M. No. P-12-3074, March 17, 2014, 719 SCRA 248.
9. Id. at 258-259.