SPECIAL THIRD DIVISION
[G.R. No. 161425. April 23, 2018.]
ANIANO DESIERTO [substituted by Simeon V. Marcelo], petitioner,vs. RUTH EPISTOLA AND RODOLFO GAMIDO, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedApril 23, 2018, which reads as follows:
"G.R. No. 161425 (Aniano Desierto [substituted by Simeon V. Marcelo] vs. Ruth Epistola and Rodolfo Gamido). — Before Us is a Motion for Partial Reconsideration of this Court's Resolution dated November 23, 2016 where We ruled that the CA erred in reversing and setting aside the findings of the Ombudsman. In the same Resolution, We affirmed the Ombudsman's conclusion that Gamido's actuations are tantamount to grave misconduct and that a penalty of suspension of one year was sufficient considering that respondents were first-time offenders. However, the petition was denied for being moot and academic since respondent Gamido was no longer the incumbent barangay chairman of Bone North and the validity or invalidity of his suspension could no longer affect his tenure.
In the present Motion for Partial Reconsideration, petitioners, through the Office of the Solicitor General (OSG), pray for this Court to impose an alternative penalty of a fine in an amount equivalent to respondent Gamido's salary as barangay chairman for a period of six months, to be deducted from his retirement benefits, accrued leave credits, or any receivable from his office, with prejudice to his re-employment in any branch, agency, or instrumentality of government, including government-owned or controlled corporations.
In support of this, petitioner cites Lauria-Liberato v. Lelina, 1 wherein this Court ruled that in cases where the respondents were found guilty of grave misconduct, but the penalty of dismissal was no longer possible due to their compulsory retirement, disciplinary sanctions of fine or forfeiture of benefits may be imposed, along with prejudice to the employee's reemployment in any branch or instrumentality of the government.
Petitioner also relies on a Memorandum dated April 4, 2013 issued by the Office of the Ombudsman, which provides that the dispositive portions of any decision or order rendered by the Ombudsman which imposes a penalty of suspension, shall have a colatilla that reads:
In the event that the penalty of Suspension can no longer be enforced due to respondent's separation from the service, the penalty shall be converted into a Fine in an amount equivalent to respondent's salary for [a number of months corresponding to the period of suspension but which should not exceed six (6) months], payable to the Office of the Ombudsman, and may be deductible from respondent's retirement benefits, accrued leave credits or any receivable from his/her office.
In Our Resolution dated April 5, 2017, the Court required respondents to file their comment on the pending motion. Records show that copies of this Resolution were received by respondents, but the copy sent to their counsel was returned unserved. After a lapse of almost one year from receipt of this Court's April 5, 2017 Resolution, respondents still have not filed their comment on the motion. On April 16, 2018, the Court resolved that the April 5, 2017 Resolution has been deemed served. Thus, the Court considers respondents to have waived their right to comment on the motion.
The motion filed by the OSG is meritorious.
The case of Largo v. Court of Appeals2 is applicable in the present case. In Largo, this Court imposed the penalty of a fine equivalent to six months' salary of petitioner Largo in lieu of suspension, considering that suspension is no longer possible due to his retirement. We ruled that this is in line with Section 19 of the Omnibus Rules Implementing Book V of Executive Order No. 292, which provides:
The penalty of transfer, or demotion, or fine may be imposed instead of suspension from one month and one day to one year except in case of fine which shall not exceed six months.
In the present case, it is undisputed that respondent Gamido has ceased to be the barangay chairman of Bone North. Accordingly, the penalty of suspension could no longer be imposed on him.
IN VIEW OF THE FOREGOING, the Court hereby resolves to GRANT the instant motion for partial reconsideration. The Resolution dated November 23, 2016 is hereby MODIFIED. Respondent Rodolfo Gamido is hereby declared GUILTY of grave misconduct punishable for a period of six months.
Considering, however, that the penalty of suspension may no longer be imposed due to respondent's separation from the service, the alternative penalty of a fine equivalent to his salary as barangay chairman for a period of six months is hereby imposed, to be deducted from his retirement benefits, accrued leave credits, or any receivable from his office, with prejudice to his re-employment in any branch, agency, or instrumentality of government, including government-owned or controlled corporations.
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1. A.M. No. P-09-2703, September 5, 2011 [Formerly OCA I.P.I. No. 99-654-P].
2. G.R. No. 177244, November 20, 2007.