GEORGE C. CUSTODIO, COMPLAINANT, VS. APOLONIO F. FULINARA, DEPUTY PROVINCIAL SHERIFF OF THE PROVINCE OF ZAMBALES AT IBA, ZAMBALES, RESPONDENT.

In a verified complaint dated July 22, 1977, George C. Custodio
charges Apolonio F. Fulinara,
Deputy Provincial Sheriff of the Court of First Instance of Zambales,
with dishonesty, neglect of duty, and conduct prejudicial to the best interest
of the service and other actionable grounds provided under Section 1 of
Presidential Decree No. 6.

Upon respondent’s answer, this Court, on October 11, 1978, referred the case to the
Executive Judge of the Court of First Instance of Zambales
for investigation, report and recommendation. 
Executive Judge Ramon Mabutas, Jr. conducted
the investigation and on January 11,
1979 submitted to this Court his Report containing the summary of
the evidence adduced, his findings and recommendation, to wit:

“EVIDENCE ADDUCED

George C. Custodio, first witness
presented, testified that:  He was the
one who filed the complaint with the Supreme Court against Apolonio
Fulinara; his complaint against Fulinara
is in connection with the latter’s dishonesty in the performance of his duty as
deputy provincial sheriff and for breach of promise; he engaged the services of
Fulinara relative to a case–Civil Case No. 86–he had
against Cirilo Llagas,
which case had been tried by the Cabangan Municipal
Court; he was the plaintiff in said case, which was for collection of a sum of
money, while Cirilo Llagas
was the defendant; the case arose from the repair of a tractor owned by Cirilo Llagas–and he was
collecting P500.00 for his services; he won and was awarded by the Cabangan Municipal Court the sum of P500.00.

“Fulinara neglected his duty in that
he failed to execute the decision of the Cabangan
Municipal Court; he had engaged the services of Fulinara
in connection with the writ of execution which was issued by the Cabangan Municipal Court; the writ was given to Fulinara and the latter (Fulinara)
asked for a jeep to be used in towing the subject tractor to the municipal
building of Cabangan; however, Fulinara
was not able to accomplish the towing of said tractor; Fulinara
had told him that the tractor would be impounded until Llagas
would pay his (witness) services in connection with the repair thereof; failing
to impound said tractor, Fulinara told him that he
was not able to locate the same (tractor)–Llagas
might have hidden it.

“Fulinara then asked him if he would
be willing to spend for publication relative to the public auction of a certain
lot belonging to Cirilo Llagas;
for said purpose, he gave to Fulinara the amount of
P500.00 about the first week of December, 1976–the latter (Fulinara)
promising to return the same after collecting from Cirilo
Llagas; Fulinara did not
issue any receipt for the P500.00–Fulinara merely
told him that the receipt for publication would be given to him upon his (Fulinara’s) return from the Olongapo
News; however, Fulinara never gave him any
receipt upon his return from the Olangapo News–up
to the present (witness testified on December 4, 1978); neither has Fulinara returned the P500.00.

“He demanded from Fulinara the
return of the P500.00 sometime in June, 1977; sometime that month, he also went
to the office of the Olongapo News–and
got the information that Fulinara did not publish the
planned auction sale; however, he did not tell Fulinara
about his going to the office of the Olongapo
News to make verification because he might be insulted; Fulinara
had been telling him that the publication of the auction sale could not be
effected because they were busy at the Olongapo
News; he repeatedly went to see Fulinara
regarding the matter–sometimes at the latter’s residence in San Felipe, other
times at his office in Iba; however, Fulinara never told him the truth–that he (Fulinara) failed to publish the auction sale; neither has
he (Fulinara) returned the P500.00, as promised; he
had even tactfully told Fulinara that if he (Fulinara) could not cause the publication of the auction
sale, he better return the P500.00 to him (witness); he made such demand to Fulinara twice–the first in June, 1977 and the second was
about three to six months later.

“Contrary to the averment of Fulinara
in his answer, it was not he (witness) who gave the two tax declarations for
the projected auction sale–it was Fulinara who gave
them to him; Fulinara told him that said tax
declarations covered the two parcels of land that would be published at the Olongapo News for auction sale; later, Fulinara told him that the publication at the Olangapo News could not be made because it
was ‘occupied’; he made verification from the Provincial Assessor’s Office
whether or not the parcels covered by the tax declarations had been mortgaged;
he secured Tax Declarations Nos. 6439 (Exhibit ‘A’), 6441 (Exhibit ‘A-1’), 3572
(Exhibit ‘A-2’) and 3571 (Exhibit ‘A-3’) from the Office of the Provincial
Assessor; he found that two of the parcels covered by said tax declarations were
mortgaged, while the other two were not–making Fulinara’s
averment in his answer inaccurate; he likewise made a verification from the
Municipal Court of Cabangan whether or not Fulinara made a return of the writ of execution in Civil
Case 86 (Exhibit ‘B’).

“Before filing the complaint against Fulinara
with the Supreme Court, he consulted Fiscal Nacin–and
the latter advised him to approach Fulinara and
inquire whether or not he (Fulinara) had caused the
execution of the writ issued in connection with the decision of the Municipal
Court of Cabangan in Civil Case 86; he consulted
Fiscal Nacin sometime in December, 1977 and he went
to see Fulinara on the same date; he had seen Fulinara several times after seeking the advice of Fiscal Nacin–during the months of January, February and March;
confronting Fulinara, he told him (Fulinara) to cause the execution of the writ; he saw Fulinara several times at the latter’s residence in San
Felipe, other times at the office of the Clerk of Court in Iba;
however, he never consulted the officer-in-charge of the Office of the Clerk of
Court; his meetings with Fulinara yielded no positive
result–Fulinara had so many ‘alibis’; Fulinara told him that he could retrieve the amount of
P500.00 after collecting from Llagas; up to the present,
however, he has not received his P500.00, which amount he gave to Fulinara for the publication of the public auction.

“Regulus Cruz, second witness,
testified that:  He brought along with
him a certification (Exhibit ‘C’) regarding the landholdings of a certain Cirilo Llagas of Cabangan, this province–adverting to Tax Declarations Nos.
3571, 3572, 6439 and 6441; the signature above the typewritten name Santiago Y.
Parong (Exhibit ‘C-1’) is that of the assistant
provincial assessor; he also brought along with him the tax declarations
mentioned in said certification–Tax Declarations Nos. 3571 (Exhibit ‘D’), 3572
(Exhibit ‘D-1’), 6439 (Exhibit ‘D-2’) and 6441 (Exhibit ‘D-3’), all in the name
of Cirilo Llagas; the
parcel of land covered by Tax Declaration No. 3571 was mortgaged to the rural
bank of Botolan for the amount of P2,000.00, as per
document executed on December 5, 1968; the parcel covered by Tax Declaration
No. 3572 was also mortgaged to the same rural bank for the amount of P2,000.00,
as per document executed on December 5, 1963; however, the parcels covered by
Tax Declarations Nos. 6439 and 6441 have no annotations—they were not
encumbered (counsel manifested that Exhibit ‘A’ is the same as Exhibit ‘D-2’,
Exhibit ‘A-1’ the same as Exhibit ‘D-3’, Exhibit ‘A-2’ the same as Exhibit
‘D-1’, and Exhibit ‘A-3’ the same as Exhibit ‘D’); he did not know whether or
not Fulinara got any tax declaration from the
provincial assessor’s office.

“Luz Darusin, third witness,
testified that:  Being the clerk-stenographer
of the Municipal Circuit Court of Botolan-Cabangan,
she is in-charge of the records thereof–aside from attending the hearings and
transcribing the stenographic notes taken; as records custodian, she had in her
possession the record of Civil Case No. 86, entitled George Custodio
versus Cirilo Llagas
(counsel marked the original writ of execution found on page 20 of said record
as Exhibit ‘E’); Exhibit ‘E’ was indorsed, in a first indorsement,
dated November 2, 1976 (Exhibit ‘F’), to the provincial sheriff’s office in Iba, as evidenced by a registry receipt (Exhibit ‘F-1’) and
a registry return card (Exhibit ‘F-2’); so far, there is no return of the
original writ of execution that was issued; there was also a motion, dated May
12, 1978 (Exhibit ‘G’), for the issuance of an alias writ of execution filed by
the plaintiff, thru counsel; said motion was granted, as evidenced by an order
(Exhibit ‘H’) of the Municipal Court–and an alias writ of execution (Exhibit
‘I’)was thereby issued; she had issued a certification (Exhibit ‘B’) in
connection therewith; the record does not yield any proof that said alias writ
was sent to the provincial sheriff.

FINDINGS AND RECOMMENDATION

“After judiciously weighing the evidence adduced, it appears
that respondent Deputy Provincial Sheriff Apolonio Fulinara is guilty of the charges hurled against him.  Parenthetically, his non-appearance alone
during the scheduled hearings–in spite of notices sent to him–constituted a
virtual admission of such charges and the evidence adduced buttressing the
same.  In his answer, the averments of
which he failed to substantiate, he virtually admitted receipt of P500.00 from
complainant George Custodio and another P500.00 from Cirilo Llagas, but that said
complainant refused to receive it (paragraph 6 of Answer) and that he
(complainant) was in hiding (Paragraphs 10 and 11, idem.).  However, his (Fulinara’s)
repeated and consistent absence during the hearings (he was even given a day to
present his evidence after the complainant rested) torpedoed such
pretension.  (Subject deputy provincial
sheriff has been absent without leave since January, 1978).  Also, why did he not make a return of the
writ of execution he apparently executed? 
If he had no evil intention, why did he not turn over the money in his
hands to the officer-in-charge of the office of the Clerk of Court–if the
complainant really refused to receive it? 
Above all, if his answer really project the truth, why did he not show
up–not even once–during the series of settings?

“The position held by the respondent is one invested with
public trust and confidence.  Like any
other public office, that of a sheriff exists for the purpose of effecting the
ends for which government has been instituted, which are the common good, and
not the profit, honor, or private interest of any one man, family, or class of
men.  A sheriff is supposed to assist in
a fair and speedy administration of justice–he is principally charged with
serving court processes, orders, writs, etc. 
He should, therefore, discharge his duties–including making returns of
the services effected by him–promptly and well. 
Otherwise, there will be a derailment in the administration of
justice.  From the evidence adduced, it
appears that the respondent failed to live up to his sworn duties–to comply
with the implied promises he made when he took his oath as a deputy provincial
sheriff.  Hence, we have no other alternative–if
we have to maintain clean and resplendent the ivory-like altar of justice–but
to recommend the immediate separation of Apolonio Fulinara from service, without prejudice to further
prosecution under pertinent laws.”

The findings and recommendation of the Investigating Judge, being
supported by substantial evidence, are well taken.  In particular, Our attention has been called
to the statement in the Report that the investigation was conducted ex parte because “the respondent consistently
refused/failed to appear in spite of notices sent to him.” We have examined
the records and have noted that the case had been set and reset for hearing no
less than nine (9) times with sixteen (16) scheduled days in all, the last two
(2) settings, after complainant had rested his case, having been intended to
give respondent all the chances to present his evidence.  Yet not even once had respondent appeared for
the investigation.

The unexplained and consistent failure of the respondent to
appear and produce his evidence in the investigation creates the inference that
his defense that he tried his best to enforce the Writ of Execution but failed
because the defendant was insolvent and that he attempted to return to
complainant the amount of P500.00, but the latter refused to accept it, is
unworthy of credence.  Failure of a party
to introduce evidence material to his case, after promising to produce them,
creates the presumption that they would be unfavorable to the contention of the
party who made the promise.^[1]
Similarly, failure of respondent to refute by himself or through other
witnesses his accuser’s assertions, creates an inference that the charges could
be true.  The inference is not without
basis.  A person charged with serious
misconduct, if innocent, and is given the opportunity to refute the charges,
has every inducement to deny, contradict or explain the accusation by stating
facts which would exonerate him.  The
truth would be his protection.  There can
be no reason why respondent should withhold the evidence for his defense considering
that it is necessary for his exoneration. 
In any event, the evidence submitted is sufficient to prove the charge
of serious misconduct.

This occasion is as good as any to emphasize again that sheriffs
and deputy sheriffs in the cities and provinces are officers of the court.  They form an integral part of the
administration of justice because they are called upon to serve court writs,
execute all processes, and carry into effect the orders of the court.  They should discharge their duties with
utmost dispatch.  Undue and unreasonable
delays, such as obtaining in the case at bar, not only prejudice the parties,
but more important, also undermine the faith of the people in the effectiveness
of the administration of justice.

In the case at bar, respondent failed to effect the immediate
enforcement of the Writ of Execution referred to him by the complainant and to
make a return of the writ.  He collected
from the complainant the amount of P500.00 under the pretext that he amount
would be used to defray the expenses of publication of the auction sale yet
failed to return the same when the publication did not materialize; and worst,
by his lack of integrity, he caused the complainant to incur additional
expenses and unnecessary trouble.  All
these acts of the respondent are highly prejudicial to the interest of the
service.  In the language of Justice Makasiar, they “vitiate the integrity of the court
personnel as well as the court itself.”^[2]

WHEREFORE, this Court, finding the charge of neglect of
duty, dishonesty and grave misconduct sufficiently proven, hereby orders the
DISMISSAL of respondent from the service, with prejudice to re-employment in
any branch of the government service, effective upon receipt hereof.

SO ORDERED.

Barredo, (Chairman), Aquino, Concepcion, Jr., Santos,
and Abad
Santos, JJ., concur.

^[1] Halili v. De la Cruz, L-3321, May 16, 1951, 88 Phil. 699.

^[2] Ganaden v. Bolasco, Adm.
Matter No. P-124, May 16, 1975,
64 SCRA 50, 53.