Johnson v Johnson Union

8/3/2019 Johnson v Johnson Union

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JOHNSON & JOHNSON (PHILS.), G.R. No. 172799

INC., JANSSEN PHARMACEUTICA,

AND/OR RAFAEL BESA, Present:

Petitioners,

QUISUMBING,J.,

Chairperson,

CARPIO,

- versus - CARPIO MORALES,

TINGA, andVELASCO, JR., JJ.

JOHNSON OFFICE & SALES UNION-

FEDERATION OF FREE WORKERS(FFW), MA. JESUSA BONSOL and Promulgated:

RIZALINDA HIRONDO,

Respondents. July 6, 2007

x----------------------------------------------------------------------------------x

D E C I S I O N

TINGA,J.:

The instant petition for review on certiorari under Rule 45 of

the 1997 Rules of Civil Procedure seeks the reversal of the Decision

dated 31 January 2006 and Resolution dated 23 May 2006 of the

Court of Appeals in CA-G.R. SP No. 86963. The Court of Appeals

Decision affirmed two resolutions of the National Labor RelationsCommission (NLRC) directing the reinstatement of respondents Ma.

Jesusa Bonsol and Rizalinda Hirondo to their former positions in

Johnson & Johnson (Phils.), Inc. while the Resolution denied

petitioners motion for reconsideration.

The instant petition originated from the complaint for illegal

dismissal filed by respondents Ma. Jesusa Bonsol and Rizalinda

Hirondo against petitioners Johnson & Johnson (Phils.), Inc. and Janssen Pharmaceutica, one of the formers divisions. On 11

November 1999, the Labor Arbiter dismissed the complaint,

prompting respondents to elevate the matter to the NLRC. On 14

December 2001, the NLRC rendered a Resolution, modifying the

decision of the Labor Arbiter. The NLRC ruled that the violations of

company procedure committed by respondents did not constitute

serious misconduct or willful disobedience warranting their

dismissal; hence, respondents were entitled to reinstatement.

The dispositive portion of the Resolution reads in part:

WHEREFORE, premises considered, theinstant Appeal is hereby PARTIALLY GRANTED.Accordingly, the Decision appealed from is herebyMODIFIED to the effect complainants-appellants[private respondents] were illegally dismissed; thatthey are entitled to reinstatement to their respectiveformer position[s] without loss of seniority rights and

privileges but without any backwages or in thealternative, to payment of separation pay each


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equivalent to one-half (1/2) month pay for every yearof service; that they merit payment of their claimsfor thirteenth (13th) month pays, service incentiveleave pays and attorneys fees equivalent to ten[percent] (10%) of their monetary awards forthirteenth (13th) month pay and service incentiveleave pay.

The foregoing awarded claim of Complainants-Appellants are computed as follows:

1. Ma. Jesusa Bonsol Salary:P15,000/mo.

1. Separation Pay:From May 1992 to Dec. 28, 1998

7 yrs.P15,000.00 x 7 yrs. x [m]o.

P52,500.00

2. 13th Month Pay15,000.00

Service Incentive Leave Pay:P15,000 x 12 / 365 = P493.15 x 5 day

2,465.75

2. Attorneys Fees:P15,000.00 + 2,4465.75 x 10%

1,746.57

Total P71,712.32

2. Rizalinda Hirondo Salary:P12,000/mo.

1. Separation Pay:From April 17, 1995 to December 28,

1998 = 4 yrs.P12,000 x 4 yrs. x mo.

P24,000.00

2. 13th Month Pay12,000.00

Service Incentive Leave Pay:

P12,000 x 12 / 265 = P394.52 x 5 days1,972.60

2. Attorneys Fees:

P12,000.00 + 1,972.60 x 10%1,397.26

P39,369.86

GRAND TOTAL

P111,082.18=========

As regards the other issues, the Decision isSUSTAINED.

SO ORDERED.

Petitioners sought partial reconsideration but the NLRC

denied the motion in a Resolution dated 11 February 2002. Neither

party appealed from the resolution decision of the NLRC within the

reglementary period. The Resolution dated 14 December 2001

became final and executory.

On 5 March 2002, petitioners filed a Motion to Set Case for

Conference before the NLRC, manifesting their willingness to pay

respondents separation pay and other monetary awards.

According to petitioners, in the conferences called by the NLRC,

none of the respondents were in attendance. The Labor Arbiter

even suggested to petitioners to prepare the check payment.

Instead, in a motion dated 18 December 2002, respondents sought

the issuance of a writ of execution to implement the Resolution

dated 14 December 2001 and prayed for their immediate

reinstatement to their former positions. Petitioners opposed the

motion.


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At the conference held on 31 March 2004, petitioners

reiterated their intention to satisfy respondents monetary award

but the latter refused and insisted on their reinstatement.

Thereafter, petitioners filed a Manifestation and Motion, arguing

that the 14 December 2001 Resolution granted petitioners the right

to choose between the payment of separation pay and the

reinstatement of respondents based on the finding that while their

termination was illegal, respondents were not entirely faultless as

they did not follow the exact procedure in the performance of their

duties. Petitioners also claimed that reinstatement was no longer

feasible in view of the strained relations between the parties.

On 18 June 2004, the NLRC issued a Resolution, which

directed the reinstatement of respondents pursuant to the 14

December 2001 Resolution. The NLRC recognized respondents

right to choose between reinstatement and separation pay and

disregarded petitioners claim of strained relations. Petitioners

motion for reconsideration was denied in the Resolution dated 28

July 2004

Aggrieved, petitioners filed a petition for certiorari with the

Court of Appeals. They contended that respondents Motion for the

Issuance of a Writ of Execution had the effect of altering the 14

December 2001 Resolution, which had already become final and

executory and which clearly granted petitioners the option to either

reinstate respondents to their former positions or to pay the

monetary award. Petitioners also argued against respondents

reinstatement in view of the strained relations between the parties.

On 31 January 2006, the Court of Appeals rendered theassailed Decision dismissing the petition for certiorari and affirming

the resolutions of the NLRC dated 18 June 2004 and 28 July 2004.On 23 May 2006, the Court of Appeals denied petitioners motionfor reconsideration.

Hence, the instant petition, imputing the following errors onthe Court of Appeals:

I. THE HONORABLE COURT OF APPEALS

DISREGARDED THE LITERAL IMPORT AND SPIRIT OFTHE NLRCS RESOLUTION DATED 14 DECEMBER 2001WHICH GIVES TO PETITIONERS THE EXCLUSIVEOPTION WHETHER TO REINSTATE INDIVIDUALRESPONDENTS TO THEIR FORMER POSITIONS OR TOGRANT THEM SEPARATION PAY IN LIEU OFREINSTATEMENT.

II. THE HONORABLE COURT OF APPEALS

CONTRADICTED ITS OWN FINDING THAT THEDECISION OF THE NLRC DATED 14 DECEMBER 2001IS ALREADY FINAL AND EXECUTORY WHEN IT

MODIFIED THE LITERAL IMPORT OF SAID DECISION BYHOLDING THAT THE OPTION TO CHOOSE BETWEENREINSTATEMENT OR SEPARATION PAY BELONGS TOTHE INDIVIDUAL RESPONDENTS.

III. THE HONORABLE COURT OF APPEALS

SHOULD HAVE RULED THAT THE REINSTATEMENT OFINDIVIDUAL RESPONDENTS TO THEIR FORMERPOSITIONS IS NO LONGER POSSIBLE IN VIEW OF THEFACT THAT THE RELATIONS BETWEEN THE PARTIESHAD BECOME SO STRAINED THAT REINSTATEMENTWILL NO LONGER BE TO THE BEST INTERESTS [sic]

OF ALL CONCERNED.

Petitioners contend that the intent of the 14 December 2001

Resolution was to grant petitioners the option to reinstate

respondents to their former positions without the payment of

backwages, or in the alternative, to pay them separation pay,

because the dispositive portion of the Resolution was directed

toward or addressed to petitioners, who are legally obliged to


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implement the ruling. According to petitioners, the NLRC erred and

modified the Resolution dated 14 December 2001, which had

become final and executory, when it stated in its 18 June 2004

Resolution that respondents have the right to choose between their

reinstatement and getting paid the monetary award when no such

categorical pronouncement can be gathered from the 14 December

2001 Resolution.

The petition has no merit.

Well-entrenched is the rule that an illegally dismissed

employee is entitled to reinstatement as a matter of right. Over the

years, however, case law developed that where reinstatement is

not feasible, expedient or practical, as where reinstatement would

only exacerbate the tension and strained relations between the

parties, or where the relationship between the employer and

employee has been unduly strained by reason of their

irreconcilable differences, particularly where the illegally dismissed

employee held a managerial or key position in the company, it

would be more prudent to order payment of separation pay instead

of reinstatement. In other words, the payment of separation

compensation in lieu of the reinstatement of an employee who was

illegally dismissed from work shall be allowed if and only if the

employer can prove the existence of circumstances showing that

reinstatement will no longer be for the mutual benefit of the

employer and employee.

The NLRC Resolution dated 14 December 2001 expressly

recognized respondents right to reinstatement in view of the

illegality of their termination. Thus, the dispositive portion of said

resolution ordered respondents reinstatement without, however,

the payment of backwages as a primary relief.

Petitioners are mistaken in holding that they have the

prerogative to choose whether to reinstate respondents to their

former positions or to just pay their monetary award. Neither party

can claim that it has the categorical right to choose between

reinstatement and the payment of the monetary award. Ultimately,

the NLRC has the authority to execute its judgment and to settle

any issue that may arise pertaining to the manner or details of

implementing its judgment.

In the instant case, although the opposing parties yielded to

the judgment of the NLRC and did not anymore elevate the labor

dispute to the appellate court, they are now at odds as to how the

14 December 2001 Resolution should be implemented. Thus, the

NLRC properly exercised its authority to resolve the controversy

when it issued the Resolution dated 18 June 2004, where it

categorically ordered the reinstatement of respondents to their

former positions, in consonance with its earlier ruling. The NLRC

upheld the continuing primacy of reinstatement as the available

relief and made short shrift of petitioners avowal that separation

pay should be awarded in lieu of reinstatement. Effectively, the

NLRC and the Court of Appeals disregarded petitioners claim that

the relation between the parties was so strained that only the

payment of the monetary award was feasible under the

circumstances. The Court defers, as it should, to the common

finding of the NLRC and Court of Appeals since the issue of the

existence of strained relations between the parties is factual in

nature.


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The subsequent resolution did not in any manner modify the 14December 2001 Resolution, which had become final and executory,contrary to petitioners contention, because the dispositive portionof the 14 December 2001 Resolution particularly stated thatrespondents were entitled to reinstatement to their formerpositions. In other words, the primary relief granted to respondentswas reinstatement to their former positions. What constitutes analteration of a final and executory judgment is when a court or, in

the instant case, the NLRC, executes an award that is not amongthose stated in the dispositive portion of the judgment. That is notthe case here.

That the dispositive portion of the 14 December 2001

Resolution contained the phrase or in the alternative, [private

respondents are entitled] to payment of separation pay x x x does

not mean that petitioners were granted the option to pay the

separation pay in lieu of reinstating respondents. More than

anything else, the statement was in the nature of an affirmation of

the state of the law rather than an adjudication of a right in favor of

petitioners.

Moreover, a reading of a courts judgment must not be

confined to the dispositive portion alone; rather, it should be

meaningfully construed in unanimity with the ratio decidendi

thereof to grasp the true intent and meaning of a decision. A

reading of the Resolution dated 14 December 2001 shows that

after finding that respondents termination was illegal, the NLRC

held that they were entitled to reinstatement, thus:

Having been illegally dismissed ascomprehensively discussed above, complainants-appellants are normally entitled to reinstatement totheir respective former positions without loss ofseniority rights and privileges and to payment ofbackwages and other benefits.

However, inasmuch, as they are not entirelyfaultless as they did not follow exact procedures inthe performance of their duties in the instant case,like paying for medicines immediately upon theirbeing pulled out of Alstar, not later on, and payingwith checks belonging to their customers, not withtheir personal checks, Complainants-Appellantsshould thus be reinstated to their former position

without loss of seniority rights and previliges [sic] butwithout any backwages whatsoever or in thealternative, should thus be paid separation pay eachequivalent to one-half (1/2) month pay for every yearof service.

The NLRC ruling expressly recognized respondents

entitlement to reinstatement because of the illegality of their

dismissal, although they were no longer entitled to backwages. As

found by the NLRC, respondents violated certain company policies,

the effect of which was the forfeiture of the award of backwages.

Petitioners argue that the aforementioned finding of theNLRC that respondents were not entirely blameless grants themthe right to choose between reinstating respondents or giving themseparation pay.

Nothing in the body of the 14 December 2001 Resolutionsupports petitioners conclusion. As already stated, the finding ofthe NLRC that respondents were not entirely faultless merelycaused them the forfeiture of their backwages and did not deny

them reinstatement to their former positions.

WHEREFORE, the instant petition for review on certiorari is

DENIED and the Decision dated 31 January 2006 and Resolution

dated 23 May 2006 of the Court of Appeals in CA-G.R. SP No. 86963

are AFFIRMED. Costs against petitioners.

SO ORDERED.


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[G.R. No. 175366, August 11, 2008]

J-PHIL MARINE, INC. AND/OR JESUS CANDAVA AND NORMAN

SHIPPING SERVICES, PETITIONERS, VS. NATIONAL LABOR

RELATIONS COMMISSION AND WARLITO E. DUMALAOG,RESPONDENTS

CARPIO MORALES, J.:

Warlito E. Dumalaog (respondent), who served as cook aboard

vessels plying overseas, filed on March 4, 2002 before the National

Labor Relations Commission (NLRC) a pro-forma complaint[1]

against petitioners manning agency J-Phil Marine, Inc. (J-Phil), its

then president Jesus Candava, and its foreign principal Norman

Shipping Services for unpaid money claims, moral and exemplary

damages, and attorney's fees.

Respondent thereafter filed two amended pro forma complaints[2]

praying for the award of overtime pay, vacation leave pay, sick

leave pay, and disability/medical benefits, he having, by his claim,

contracted enlargement of the heart and severe thyroid

enlargement in the discharge of his duties as cook which rendered

him disabled.

Respondent's total claim against petitioners was P864,343.30 plus

P117,557.60 representing interest and P195,928.66 representing

attorney's fees.[3]


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By Decision[4] of August 29, 2003, Labor Arbiter Fe Superiaso-

Cellan dismissed respondent's complaint for lack of merit.

On appeal,[5] the NLRC, by Decision of September 27, 2004,

reversed the LaborArbiter's decision and awarded US$50,000.00

disability benefit to respondent. It dismissed respondent's other

claims, however, for lack of basis or jurisdiction.[6] Petitioners'

Motion for Reconsideration[7] having been denied by the NLRC,[8]

they filed a petition for certiorari[9] before the Court of Appeals.

By Resolution[10] of September 22, 2005, the Court of Appeals

dismissed petitioners' petition for, inter alia, failure to attach to the

petition all material documents, and for defective verification and

certification. Petitioners' Motion for Reconsideration of the

appellate court's Resolution was denied;[11] hence, they filed the

present Petition for Review on Certiorari.

During the pendency of the case before this Court, respondent,against the advice of his counsel, entered into a compromise

agreement with petitioners. He thereupon signed a Quitclaim and

Release subscribed and sworn to before the Labor Arbiter.[12]

On May 8, 2007, petitioners filed before this Court a

Manifestation[13] dated May 7, 2007 informing that, inter alia, they

and respondent had forged an amicable settlement.

On July 2, 2007, respondent's counsel filed before this Court a

Comment and Opposition (to Petitioners' Manifestation of May 7,

2007)[14] interposing no objection to the dismissal of the petition

but objecting to "the absolution" of petitioners from paying

respondent the total amount of Fifty Thousand US Dollars

(US$50,000.00) or approximately P2,300,000.00, the amount

awarded by the NLRC, he adding that:

There being already a payment of P450,000.00, and invoking the

doctrine of parens patriae, we pray then [to] this Honorable

Supreme Court that the said amount be deducted from the [NLRC]

judgment award of US$50,000.00, or approximately P2,300,000.00,

and petitioners be furthermore ordered to pay in favor of hereinrespondent [the] remaining balance thereof.

x x x x[15] (Emphasis in the original; underscoring supplied)

Respondent's counsel also filed before this Court, purportedly on

behalf of respondent, a Comment[16] on the present petition.

The parties having forged a compromise agreement as respondent

in fact has executed a Quitclaim and Release, the Court dismisses

the petition.

Article 227 of the Labor Code provides:

Any compromise settlement, including those involving labor

standard laws, voluntarily agreed upon by the parties with the

assistance of the Department of Labor, shall be final and binding

upon the parties. The National Labor Relations Commission or any

court shall not assume jurisdiction over issues involved therein

except in case of non-compliance thereof or if there is prima facie

evidence that the settlement was obtained through fraud,

misrepresentation, or coercion. (Emphasis and underscoring

supplied)

In Olaybar v. NLRC,[17] the Court, recognizing the conclusiveness

of compromise settlements as a means to end labor disputes, held

that Article 2037 of the Civil Code, which provides that "[a]

compromise has upon the parties the effect and authority of res

judicata," applies suppletorily to labor cases even if the

compromise is not judicially approved.[18]

That respondent was not assisted by his counsel when he enteredinto the compromise does not render it null and void. Eurotech Hair

Systems, Inc. v. Go[19] so enlightens:

A compromise agreement is valid as long as the consideration is

reasonable and the employee signed the waiver voluntarily, with a

full understanding of what he was entering into. All that is required

for the compromise to be deemed voluntarily entered into is

personal and specific individual consent. Thus, contrary to

respondent's contention, the employee's counsel need not be

present at the time of the signing of the compromise agreement.

[20] (Underscoring supplied)


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It bears noting that, as reflected earlier, the Quitclaim and Waiver

was subscribed and sworn to before the Labor Arbiter.

Respondent's counsel nevertheless argues that "[t]he amount of

Four Hundred Fifty Thousand Pesos (P450,000.00) given to

respondent on April 4, 2007, as `full and final settlement of

judgment award,' is unconscionably low, and un-[C]hristian, to say

the least."[21] Only respondent, however, can impugn the

consideration of the compromise as being unconscionable.

The relation of attorney and client is in many respects one ofagency, and the general rules of agency apply to such relation.[22]The acts of an agent are deemed the acts of the principal only ifthe agent acts within the scope of his authority.[23] Thecircumstances of this case indicate that respondent's counsel isacting beyond the scope of his authority in questioning thecompromise agreement.

That a client has undoubtedly the right to compromise a suit

without the intervention of his lawyer[24] cannot be gainsaid, the

only qualification being that if such compromise is entered into with

the intent of defrauding the lawyer of the fees justly due him, the

compromise must be subject to the said fees.[25] In the case at

bar, there is no showing that respondent intended to defraud his

counsel of his fees. In fact, the Quitclaim and Release, the

execution of which was witnessed by petitioner J-Phil's president

Eulalio C. Candava and one Antonio C. Casim, notes that the 20%

attorney's fees would be "paid 12 April 2007 - P90,000."

WHEREFORE, the petition is, in light of all the foregoing discussion,

DISMISSED.

Let a copy of this Decision be furnished respondent, Warlito E.

Dumalaog, at his given address at No. 5-B Illinois Street, Cubao,

Quezon City.

SO ORDERED.

LAGUNA METTS G.R. No. 185220

CORPORATION,vs.COURT OF APPEALS

CORONA, J.:

This petition arose from a labor case filed by private respondentsAries C. Caalam and Geraldine Esguerra against petitioner Laguna

Metts Corporation (LMC).[1] The labor arbiter decided in favor ofprivate respondents and found that they were illegally dismissed by


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LMC. On appeal, however, the National Labor Relations Commission(NLRC) reversed the decision of the labor arbiter in a decision datedFebruary 21, 2008. Private respondents motion for reconsiderationwas denied in a resolution dated April 30, 2008.

Counsel for private respondents received the April 30, 2008resolution of the NLRC on May 26, 2008. On July 25, 2008, he filed amotion for extension of time to file petition for certiorari under Rule

65 of the Rules of Court.[2] The motion alleged that, for reasons[3]stated therein, the petition could not be filed in the Court ofAppeals within the prescribed 60-day period.[4] Thus, a 15-dayextension period was prayed for.[5]

In a resolution dated August 7, 2008,[6] the Court of Appealsgranted the motion and gave private respondents a non-extendibleperiod of 15 days within which to file their petition for certiorari.LMC moved for the reconsideration of the said resolution claimingthat extensions of time to file a petition for certiorari are no longerallowed under Section 4, Rule 65 of the Rules of Court, as amendedby A.M. No. 07-7-12-SC dated December 4, 2007.[7] This was

denied in a resolution dated October 22, 2008. According to theappellate court, while the amendment of the third paragraph ofSection 4, Rule 65 admittedly calls for stricter application todiscourage the filing of unwarranted motions for extension of time,it did not strip the Court of Appeals of the discretionary power togrant a motion for extension in exceptional cases to serve the endsof justice.

Aggrieved, LMC now assails the resolutions dated August 7, 2008and October 22, 2008 of the Court of Appeals in this petition forcertiorari under Rule 65 of the Rules of Court. It contends that theCourt of Appeals committed grave abuse of discretion when it

granted private respondents motion for extension of time to filepetition for certiorari as the Court of Appeals had no power to grantsomething that had already been expressly deleted from the rules.

We agree.

Rules of procedure must be faithfully complied with and should notbe discarded with the mere expediency of claiming substantialmerit.[8] As a corollary, rules prescribing the time for doing specificacts or for taking certain proceedings are considered absolutelyindispensable to prevent needless delays and to orderly andpromptly discharge judicial business. By their very nature, these

rules are regarded as mandatory.[9]

In De Los Santos v. Court of Appeals,[10] we ruled:

Section 4 of Rule 65 prescribes a period of 60 days within which tofile a petition for certiorari. The 60-day period is deemedreasonable and sufficient time for a party to mull over and toprepare a petition asserting grave abuse of discretion by a lowercourt. The period was specifically set to avoid any unreasonabledelay that would violate the constitutional rights of the parties to a

speedy disposition of their case. (emphasis supplied)

While the proper courts previously had discretion to extend theperiod for filing a petition for certiorari beyond the 60-day period,[11] the amendments to Rule 65 under A.M. No. 07-7-12-SCdisallowed extensions of time to file a petition for certiorari with thedeletion of the paragraph that previously permitted suchextensions.

Section 4, Rule 65 previously read:

SEC. 4. When and where petition filed. The petition shall be filed

not later than sixty (60) days from notice of the judgment orresolution. In case a motion for reconsideration or new trial istimely filed, whether such motion is required or not, the sixty (60)day period shall be counted from notice of the denial of saidmotion.

The petition shall be filed in the Supreme Court or, if it relates tothe acts or omissions of a lower court or of a corporation, board,officer or person, in the Regional Trial Court exercising jurisdictionover the territorial area as defined by the Supreme Court. It mayalso be filed in the Court of Appeals whether or not the same is inaid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid

of its appellate jurisdiction. If it involves the acts or omissions of aquasi-judicial agency, and unless otherwise provided by law orthese rules, the petition shall be filed in and cognizable only by theCourt of Appeals.

No extension of time to file the petition shall be grantedexcept for compelling reason and in no case exceeding 15 days.[12] (emphasis supplied)

With its amendment under A.M. No. 07-7-12-SC, it now reads:

SEC. 4. When and where to file petition. The petition shall be filed

not later than sixty (60) days from notice of the judgment orresolution. In case a motion for reconsideration or new trial is


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timely filed, whether such motion is required or not, the sixty (60)day period shall be counted from the notice of the denial of themotion.

If the petition relates to an act or an omission of a municipal trialcourt or of a coporation, a board, an officer or a person, it shall befiled with the Regional Trial Court exercising jurisdiction over theterritorial area as defined by the Supreme Court. It may also be

filed in the Court of Appeals or with the Sandiganbayan, whether ornot the same is in aid of the courts appellate jurisdiction. If thepetition involves an act or an omission of a quasi-judicial agency,unless otherwise provided by law or these rules, the petition shallbe filed with and be cognizable only by the Court of Appeals.

In election cases involving an act or omission of a municipalor a regional trial court, the petition shall be filed exclusively withthe Commission on Elections, in aid of its appellate jurisdiction.

As a rule, an amendment by the deletion of certain words orphrases indicates an intention to change its meaning. It is

presumed that the deletion would not have been made if there hadbeen no intention to effect a change in the meaning of the law orrule. The amended law or rule should accordingly be given aconstruction different from that previous to its amendment.[13]

If the Court intended to retain the authority of the proper courts togrant extensions under Section 4 of Rule 65, the paragraphproviding for such authority would have been preserved. Theremoval of the said paragraph under the amendment by A.M. No.07-7-12-SC of Section 4, Rule 65 simply meant that there can nolonger be any extension of the 60-day period within which to file apetition for certiorari.

The rationale for the amendments under A.M. No. 07-7-12-SC isessentially to prevent the use (or abuse) of the petition forcertiorari under Rule 65 to delay a case or even defeat the ends of justice. Deleting the paragraph allowing extensions to file petitionon compelling grounds did away with the filing of such motions. Asthe Rule now stands, petitions for certiorari must be filed strictlywithin 60 days from notice of judgment or from the order denying amotion for reconsideration.

In granting the private respondents motion for extension of time tofile petition for certiorari, the Court of Appeals disregarded A.M. No.

07-7-12-SC. The action amounted to a modification, if not outrightreversal, by the Court of Appeals of A.M. No. 07-7-12-SC. In so

doing, the Court of Appeals arrogated to itself a power it did notpossess, a power that only this Court may exercise.[14] For thisreason, the challenged resolutions dated August 7, 2008 andOctober 22, 2008 were invalid as they were rendered by the Courtof Appeals in excess of its jurisdiction.

Even assuming that the Court of Appeals retained the discretion togrant extensions of time to file a petition for certiorari for

compelling reasons, the reasons proffered by private respondentscounsel did not qualify as compelling. Heavy workload is relativeand often self-serving.[15] Standing alone, it is not a sufficientreason to deviate from the 60-day rule.[16]

As to the other ground cited by private respondents counsel,suffice it to say that it was a bare allegation unsubstantiated byany proof or affidavit of merit. Besides, they could have filed thepetition on time with a motion to be allowed to litigate in formapauperis. While social justice requires that the law look tenderly onthe disadvantaged sectors of society, neither the rich nor the poorhas a license to disregard rules of procedure. The fundamental rule

of human relations enjoins everyone, regardless of standing in life,to duly observe procedural rules as an aspect of acting with justice,giving everyone his due and observing honesty and good faith.[17]For indeed, while technicalities should not unduly hamper our questfor justice, orderly procedure is essential to the success of thatquest to which all courts are devoted.[18]

WHEREFORE, the petition is hereby GRANTED. The resolutionsdated August 7, 2008 and October 22, 2008 of the Court of Appealsin CA-G.R. SP No. 104510 are REVERSED and SET ASIDE and thepetition in the said case is ordered DISMISSED for having been filedout of time.


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[G.R. No. 162739, February 12, 2008]

AMA COMPUTER COLLEGE-SANTIAGO CITY, INC., Petitioner,

vs. CHELLY P. NACINO, substituted by the Heirs of Chelly P.

Nacino, Respondent.

R E S O L U T I O N

NACHURA, J.:

Before this Court is a Petition for Review on Certiorari[1] under Rule

45 of the Rules of Civil Procedure seeking the reversal of the Court

of Appeals (CA) Resolution[2] dated June 23, 2003, the dispositive

portion of which provides:

WHEREFORE, for being procedurally flawed, this petition for

certiorari is hereby DENIED DUE COURSE, and consequently

DISMISSED. Needless to say, the prayer for temporary restraining

order, being merely an adjunct to the main suit, must be pro tanto

DENIED.

SO ORDERED.

and of the CA Resolution[3] dated March 3, 2004 which denied

petitioner's motion for reconsideration.

Petitioner AMA Computer College Santiago City, Inc. (AMA)

employed Chelly P. Nacino (Nacino) as Online Coordinator of thecollege. On October 30, 2002, ostensibly upon inspection, the

Human Resources Division Supervisor, Mariziel C. San Pedro (San

Pedro) found Nacino absent from his post. On the same day, San

Pedro issued a Memorandum[4] requiring Nacino to explain his

absence. Nacino filed with San Pedro a written explanation[5]

claiming that he had to rush home at 1315 hours (1:15 PM)

because he was suffering from LBM (loose bowel movement) and

that the facilities in the school were inadequate and inefficient, but

he had gone back to the school at 1410 hours (2:10 PM). Not

satisfied with the explanation, San Pedro sought anotherexplanation because the earlier explanation does not conform

to a previous investigation conducted. [6] Nacino furnished San

Pedro the same written explanation he had earlier submitted. San

Pedro then filed a formal complaint against Nacino for false

testimony, in addition to the charge of abandonment. An

Investigating Committee[7] was constituted to investigate the

complaint and, pending investigation, Nacino was placed under

preventive suspension for a maximum of thirty (30) days, effective

November 8, 2002.[8] The Investigating Committee found Nacinoguilty as charged, and was dismissed from the service on

December 5, 2002.[9]

Aggrieved, Nacino filed on December 13, 2002 a Complaint[10] for

Illegal Suspension and Termination before the National Conciliation

and Mediation Board (NCMB) in Tuguegarao City. On January 10,

2003, Maria Luanne M. Jali-jali (Jali-jali), AMA's representative,

signed the submission Agreement, accepting the jurisdiction of

Voluntary Arbitrator Nicanor Y. Samaniego (Voluntary Arbitrator)

over the controversy.

Before the Voluntary Arbitrator, the parties agreed to settle the

case amicably, with Nacino discharging and releasing AMA from all

his claims in consideration of the sum of P7,719.81. The

Decision[11] embodying the Compromise Agreement and the

corresponding Quitclaim and Release,[12] both dated February 21,

2003, were duly prepared and signed, but the check in payment of

the consideration for the settlement had yet to be released.

On April 1, 2003, Nacino died in an accident. On April 15, 2003, the

Voluntary Arbitrator rendered the assailed Decision,[13] ordering

Nacino's reinstatement and the payment of his backwages and13th month pay. Therein, the Voluntary Arbitrator manifested that,

due to AMA's failure to pay the sum of P7,719.81, Nacino withdrew

from the Compromise Agreement, as shown by the conduct of a

hearing on March 15, 2003 where both parties appeared and were

directed to file their position papers. The Voluntary Arbitrator also

stated that Nacino complied, but AMA failed to file its position

paper and to appear before him despite summons. On May 7, 2003,

the Voluntary Arbitrator issued a Writ of Execution[14] upon motion

of Nacino's surviving spouse, one Bernadeth V. Nacino. AMA filed a

Motion to Quash the said Writ but the Voluntary Arbitrator allegedlyrefused to receive the same.[15] Thus, on May 22, 2003, the heirs


12/26

of Nacino were able to garnish AMA's bank deposits in the amount

of P52,021.70.

On June 16, 2003, AMA filed a Petition[16] for Certiorari under Rule

65 before the CA. On June 23, 2003, the CA dismissed the said

petition because it was a wrong mode of review. It held that the

proper remedy was an appeal by way of Rule 43 of the Rules of

Civil Procedure. Accordingly, the CA opined, an erroneous appeal

shall be dismissed outright pursuant to Section 2, Rule 50 of the

Rules of Civil Procedure.

AMA filed its Motion for Reconsideration but the CA denied it in its

Resolution dated March 3, 2004.

Hence, this petition based on the sole ground that:

THE COURT OF APPEALS COMMITTED SERIOUS ERROR OF LAW IN

DISMISSING THE PETITION FOR CERTIORARI UNDER RULE 65 OF

THE 1997 RULES OF CIVIL PROCEDURE FILED BY HEREIN

PETITIONER.

AMA claims that Jali-jali was misinformed and misled in signing the

Submission Agreement, subjecting AMA to the jurisdiction of the

Voluntary Arbitrator; that the Voluntary Arbitrator's Decision was

issued under the Labor Code and, as such, the same is not

appealable under Rule 43, as provided for by Section 2[17] thereof,

but under Rule 65 of the Rules of Civil Procedure; and that the

petition for certiorari is the only plain, speedy and adequate

remedy in this case since the Voluntary Arbitrator acted with grave

abuse of discretion in disregarding the parties' compromise

agreement, in rendering the assailed Decision, and in issuing the

Writ of Execution without affording AMA its right to due process.

On the other hand, the heirs of Nacino refused to receive this

Court's Resolution requiring them to file their Comment[18] and, as

such, were considered to have waived their right to file the same.

[19]

The instant petition lacks merit.

Pertinent is our ruling in Centro Escolar University Faculty and

Allied Workers Union-Independent v. Court of Appeals,[20] where

we held:

We find that the Court of Appeals did not err in holding that

petitioner used a wrong remedy when it filed a special civil action

on certiorari under Rule 65 instead of an appeal under Rule 43 of

the 1997 Rules of Civil Procedure. The Court held in Luzon

Development Bank v. Association of Luzon Development Bank

Employees that decisions of the voluntary arbitrator under the

Labor Code are appealable to the Court of Appeals. In that case,

the Court observed that the Labor Code was silent as regards the

appeals from the decisions of the voluntary arbitrator, unlike those

of the Labor Arbiter which may be appealed to the National Labor

Relations Commission. The Court noted, however, that the

voluntary arbitrator is a government instrumentality within the

contemplation of Section 9 of Batas Pambansa Blg. (BP) 129 which

provides for the appellate jurisdiction of the Court of Appeals. The

decisions of the voluntary arbitrator are akin to those of theRegional Trial Court, and, therefore, should first be appealed to the

Court of Appeals before being elevated to this Court. This is in

furtherance and consistent with the original purpose of Circular No.

1-91 to provide a uniform procedure for the appellate review of

adjudications of all quasi-judicial agencies not expressly excepted

from the coverage of Section 9 of BP 129. Circular No. 1-91 was

later revised and became Revised Administrative Circular No. 1-95.

The Rules of Court Revision Committee incorporated said circular in

Rule 43 of the 1997 Rules of Civil Procedure. The inclusion of the

decisions of the voluntary arbitrator in the Rule was based on the

Court's pronouncements in Luzon Development Bank v. Association

of Luzon Development Bank Employees. Petitioner's argument,

therefore, that the ruling in said case is inapplicable in this case is

without merit.

We are not unmindful of instances when certiorari was granted

despite the availability of appeal, such as (a) when public welfare

and the advancement of public policy dictates; (b) when the

broader interest of justice so requires; (c) when the writs issued are

null and void; or (d) when the questioned order amounts to an

oppressive exercise of judicial authority. [21] However, none ofthese recognized exceptions attends the case at bar. AMA has


13/26

sadly failed to show circumstances that would justify a deviation

from the general rule.

While it is true that, in accordance with the liberal spirit which

pervades the Rules of Court and in the interest of justice, a petition

for certiorari may be treated as having been filed under Rule 45,

the petition for certiorari filed by petitioner before the CA cannot be

treated as such, without the exceptional circumstances mentioned

above, because it was filed way beyond the 15-day reglementary

period within which to file the Petition for Review.[22] AMA received

the assailed Decision of the Voluntary Arbitrator on April 15, 2003

and it filed the petition for certiorari under Rule 65 before the CA

only on June 16, 2003.[23] By parity of reasoning, the same

reglementary period should apply to appeals taken from the

decisions of Voluntary Arbitrators under Rule 43. Based on the

foregoing disquisitions, the assailed Decision of the Voluntary

Arbitrator had already become final and executory and beyond the

purview of this Court to act upon.[24]

Verily, rules of procedure exist for a noble purpose, and to

disregard such rules in the guise of liberal construction would be to

defeat such purpose. Procedural rules are not to be disdained as

mere technicalities. They may not be ignored to suit the

convenience of a party. Adjective law ensures the effective

enforcement of substantive rights through the orderly and speedy

administration of justice. Rules are not intended to hamper litigants

or complicate litigation. But they help provide for a vital system of

justice where suitors may be heard following judicial procedure and

in the correct forum. Public order and our system of justice are well

served by a conscientious observance by the parties of theprocedural rules.[25] Peti denied.

[G.R. No. 166096, September 11, 2008]

PHILIPPINE NATIONAL BANK, PETITIONER, VS. RAMON

BRIGIDO L. VELASCO, RESPONDENT.

REYES, R.T., J.:

THIS is a tale of a bank officer-depositor clinging to his position

after violating bank regulations and falsifying his passbook tocover up a false transaction.

Before the Court is a petition for review on certiorari under Rule 45

of the 1997 Rules of Civil Procedure seeking the reversal of the

Decision[1] and Resolution[2] of the Court of Appeals (CA). The

appealed decision reversed those of the National Labor Relations

Commission (NLRC)[3] and the Labor Arbiter[4] which dismissed

the complaint for illegal dismissal and damages of Ramon Brigido L.

Velasco against Philippine National Bank (PNB).

The Facts

Ramon Brigido L. Velasco, a PNB audit officer, and his wife, Belen

Amparo E. Velasco, maintained Dollar Savings Account No. 010-

714698-9[5] at PNB Escolta Branch. On June 30, 1995, while on

official business at the Legazpi Branch, he went to the PNB

Ligao, Albay Branch and withdrew US$15,000.00 from the dollar

savings account. At that time, the account had a balance of

US$15,486.07. The Ligao Branch is an off-line branch, i.e., one with

no network connection or computer linkage with other PNB

branches and the head office. The transaction was evidenced byan Interoffice Savings Account Withdrawal Slip, also known as the

Ticket Exchange Center (TEC).[6]

On July 10, 1995, PNB Escolta Branch received the TEC covering the

withdrawal. It was included among the proofsheet entries of

Cashier IV Ruben Francisco, Jr. The withdrawal was not, however,

posted in the computer of the Escolta Branch when it received said

advice. This means that the withdrawal was not recorded. Thus,

the account of Velasco had an overstatement of US$15,000.00.

Sometime in September 1995, while Velasco was on a provincialaudit, he claimed calling through phone a kin in Manila who just

arrived from abroad. This kin allegedly told him that his New York-

based brother, Gregorio Velasco, sent him various checks through

his kin totaling US$15,000.00 and that the checks would just be

deposited in time in Velasco's account.

On October 6, 1995, Velasco updated his dollar savings account by

depositing US$12.78, reflecting a balance of US$15,486.01. He

was allegedly satisfied with the updated balance, as he thought

that the US$15,000.00 in his account was the amount given by his

brother.


14/26

On different dates, Velasco made several inter-branch withdrawals

from the dollar savings account, to wit:

PNB Branch Date Amount

PNB Legaspi November 7, 1995 US $2,000.00

PNB Legaspi November 13, 1995 3,329.97

Cash Dept. November 23, 1995 4,000.00

Total US $9,329.97

Mrs. Belen Velasco also withdrew several amounts on the dollar

account, viz.:

PNB Branch Date Amount

PNB CEPZ December 6, 1995 US$11,494.00

PNB Frisco January 2, 1996 1,292.32

Total US$12,786.32

Subsequently, the dollar savings account of the spouses was

closed.

On February 6, 1996, in the course of conducting an audit at

PNB Escolta Branch, Molina D. Salvador, a member of the Internal

Audit Department (IAD) of PNB, discovered that the inter-branch

withdrawal made on June 30, 1995 by Velasco at PNB Ligao, Albay

Branch in the amount of US$15,000.00 was not posted; and thatno deposit of said amount had been credited to the dollar savings

account.

On February 7, 1996, Velasco was notified of the glitch when he

reported at the IAD. He said it was only in the evening that he was

able to verify from his kin that the latter was not able to deposit in

his account the US$15,000.00.[7]

The following day, or on February 8, 1996, Velasco went to Dolorita

Donado, assistant vice president of the Internal Audit Department

and team leader of the Escolta Task Force, and delivered three (3)checks in the amount of US$5,000.00 each or a total of

US$15,000.00. However, Donato returned the checks to Velasco

and instructed him that he should personally deposit the checks.

On February 14, 1996, he deposited the checks and the amount

was consequently applied to his unposted withdrawal of

US$15,000.00.

Meanwhile, on February 9, 1996, PNB vice president, B.C. Hermoso,

required[8] Velasco to submit a written explanation concerning theincident.

On February 12, 1996, he submitted his sworn letter-explanation.

[9] He described the inter-branch withdrawal at PNB Ligao, Albay

Branch on June 30, 1995 as "no-book," i.e., without the

corresponding presentation to the bank teller of the savings

passbook. He stated, among others, that his withdrawal was

accommodated as the statement of account showed a balance of

US$15,486.01, and that he is personally known to the officers and

staff, being a former colleague at the PNB Ligao, Albay Branch.

On February 27, 1996, PNB Ligao, Albay Branch division chief III,

Rexor Quiambao, financial specialist II, Emma Gacer, and division

chief II, Renato M. Letada, confirmed the "no-book" withdrawal.[10]

On March 5, 1996, PNB formally charged Velasco with "Dishonesty,

Grave Misconduct, and/or Conduct Grossly Prejudicial to the Best

Interest of the Service for the irregular handling of Dollar Savings

Account No. 010-714698-9."[11] The administrative charge alleged

that: (1) he transacted a no-book withdrawal against his Dollar

Savings Account No. 010-714698-9 at PNB Ligao, Albay Branch in

violation of Section 1216 of the Manual of Regulations for Banks;

(2) in transacting the no-book withdrawal, he failed to present any

letter of introduction as required under General Circular 3-72/92;

(3) the irregular inter-branch withdrawal was aggravated by the

failure of Escolta Branch to post/enter the withdrawal into the

computer upon receipt of the TEC advice, resulting in the

overstatement of the account balance by US$15,000.00; and (4)

since he was presumed to be fully aware that neither the deposit

nor withdrawal of the US$15,000.00 was reflected on the passbook,

he was able to appropriate the amount for his personal benefit, free

of interest, to the damage and prejudice of PNB.[12]


15/26

On April 8, 1996, PNB withheld his rice and sugar subsidy,

dental/optical/outpatient medical benefits, consolidated medical

benefits, commutation of hospitalization benefits, clothing

allowance, longevity pay, anniversary bonus, Christmas bonus and

cash gift, performance incentive award, and mid-year financial

assistance.[13] On April 10, 1996, he was placed under preventive

suspension for a period of ninety (90) days.[14]

On May 2, 1996, Velasco submitted his sworn Answer[15] to the

administrative charge against him. Unlike his previous answer, he

here claimed that his withdrawal on June 30, 1995 was "with

passbook." As proof, he attached a copy of his passbook[16]

bearing the withdrawal entry of US$15,000.00 on June 30, 1995.

Explaining the inconsistency with his sworn letter-explanation on

February 12, 1996, he said his initial answer was made under

pressing circumstances. He was unable to find his passbook

which was then kept by his wife who could not be contacted at that

moment.

On October 2, 1996, the Administrative Adjudication Office (AAO) of

PNB composed of Fernando R. Mangubat, Jr., Wilfredo S. Verzosa,

Celso D. Benologa, and Jesse L. Figueroa exonerated Velasco of the

charges of dishonesty and conduct prejudicial to the best interest

of service. However, he was found guilty of grave misconduct,

mitigated by length of service and absence of actual loss to PNB.

Thus, he was meted the penalty of forced resignation with benefits.

[17]

On October 31, 1996, Velasco was formally notified of the findings

of the AAO after its approval by the management. As of that time,he had been employed with PNB for eighteen (18) years, holding

the position of Manager 1 of the IAD. He was earning P14,932.00

per month plus a monthly allowance of P3,940.00 or a total salary

of P18,872.00 per month.

On December 22, 1997, he filed a Complaint[18] against PNB for

illegal suspension, illegal dismissal, and damages before the NLRC.

Labor Arbiter, NLRC, and CA Dispositions

On July 9, 1999, Labor Arbiter Pablo C. Espiritu gave judgment, the

dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered as follows:

1. Dismissing the complaint for illegal dismissal against

respondents for want of merit.

2. Ordering PNB to pay complainant unpaid wages for theperiod May 12, 1996 to October 31, 1996 in the amount of

P103,796.00.

3. Dismissing complainant's claims for damages and other

monetary claims for lack of merit.

SO ORDERED.[19]

In his ruling, the Labor Arbiter opined that as an employee and

officer of PNB for eighteen (18) years, Velasco is expected to know

bank procedures, including the expected entries in a savingspassbook. Even if it should be assumed that he presented his

passbook when he withdrew US$15,000.00 at the PNB Ligao Branch

on June 30, 1995, he should have known that there was something

wrong with the amounts credited to his account when he made an

update on October 6, 1995. Being an audit officer, and fully aware

of his withdrawal of US$15,000.00, he should have made inquiries

on the inconsistency of the entries in his passbook.[20]

The Labor Arbiter also found as flimsy the argument that the

additional US$15,000.00 was the amount given to Velasco by his

brother from the United States. As early as October 6, 1995, whenhe updated his passbook, Velasco should have known that (1) his

brother's checks in the amount of US$15,000.00 have not been

deposited in his dollar savings account and (2) he appears to have

been improperly credited with US$15,000.00.[21]

Moreover, the Labor Arbiter held that the entry in the passbook

purportedly reflecting the withdrawal of US$15,000.00 is a forgery.

It was done to conform to the defense of Velasco that he presented

his passbook on June 30, 1995.[22]


16/26

On the charge of illegal suspension, the Labor Arbiter held that the

preventive suspension of Velasco was reasonable in view of the

sensitive nature of his position. It was also necessary to protect the

records of PNB.[23] It follows that the withholding of his company

benefits is reasonable.[24] Nonetheless, he should be paid his

salary from May 12, 1996 up to October 31, 1996.[25]

His claim for damages and attorney's fees must be denied because

PNB did not violate his rights.[26]

Dissatisfied with the decision of the Labor Arbiter, both Velasco[27]

and PNB[28] appealed to the NLRC.

On July 31, 2000, the NLRC affirmed with modification the Labor

Arbiter decision, disposing, thus:

WHEREFORE, the decision appealed from is hereby MODIFIED to

the extent that the award of unpaid salaries is hereby REDUCED to

the complainant's salaries from May 27, 1996 to July 31, 1996.

Other dispositions in the appealed decision stands (sic) affirmed.[29]

In sustaining the Labor Arbiter, the NLRC held that Velasco's lack of

knowledge of the non-posting of his withdrawal is not credible.

Even a cursory look at his passbook shows that no deposit of

US$15,000.00 was ever made. That there was still a balance of

more than US$15,000.00 in his account after the withdrawal he

made on June 30, 1995 could only mean that the withdrawal was

never posted. Worse, based also on the entries in his passbook, it

is clear that the withdrawal on June 30, 1995 was a "no-book"

transaction. The withdrawal of US$15,000.00 was not taken into

consideration in the determination of the balance of June 30, 1995

and the succeeding dates. Thus, it is clear that the entry in

question was falsified. It was made merely to bolster his

subsequent claim that he presented his passbook when he

withdrew on June 30, 1995.[30]

The NLRC concluded that the falsification of the passbook shows

deceit on the part of Velasco. He took advantage of his position.

The posting of the falsified entry could not have been made

without, or was at least facilitated by, his being an employee of thebank. Thus, his subsequent withdrawals amounted to losses on

the part of the bank. He made those withdrawals from his

account with full knowledge that the balance of his passbook of

more than US$15,000.00 was attributed to the non-posting of the

June 30, 1995 withdrawal.[31]

The NLRC also held that he had been preventively suspended

for more than thirty (30) days as of May 27, 1996. Since he was

paid his salaries from August 1, 1996 to October 31, 1996, he may

recover only his salary from May 27, 1996 to July 31, 1996.[32]

Like the Labor Arbiter, the NLRC held that Velasco may not recover

damages. His dismissal was not done oppressively or in bad faith.

Neither was he subjected to unnecessary embarrassment or

humiliation.[33]

His motion for reconsideration having been denied, Velasco

elevated the matter to the CA by way of petition for review on

certiorari under Rule 43 of the Rules of Court.[34] On April 22,

2004, the CA rendered the assailed decision, the fallo stating, thus:

WHEREFORE, for the foregoing discussions, We REVERSE and SET

ASIDE the findings of public respondent NLRC and Labor Arbiter and

hereby enter a decision ordering PNB to pay petitioner a separation

pay equivalent to half-month salary for every year of service, plus

backwages from the time of his illegal termination up to the finality

of this decision.

SO ORDERED.[35]

According to the CA, the failure of Velasco to present his passbook

and a letter of introduction does not constitute misconduct.Assuming for the sake of argument that he committed a serious

misconduct in not properly monitoring his account with ordinary

diligence and prudence, the same may be said of PNB when it

failed to make the necessary posting of his withdrawal.[36] Lastly,

the alleged offense of Velasco is not work-related to constitute just

cause for his dismissal.[37]

Issues

PNB has filed the instant petition for review on certiorari, putting

forth the following issues for Our resolution, viz.:


17/26

1. WHETHER OR NOT THE COURT OF APPEALS ERRED AND

GRAVELY ABUSED ITS DISCRETION IN FINDING THAT RESPONDENT

HAS BEEN ILLEGALLY DISMISSED BY THE PETITIONERS.

2. WHETHER OR NOT THE COURT OF APPEALS ERRED AND

GRAVELY ABUSED ITS DISCRETION IN DIRECTING PNB TO PAY

RESPONDENT SEPARATION PAY AND BACKWAGES.[38]

(Underscoring supplied)

We add a third issue which was raised by PNB before the CA but

was, however, left unresolved: whether Velasco took the correct

recourse when he elevated the decision of the NLRC to the CA by

way of petition for review on certiorari under Rule 43.

Our Ruling

I. Appeal does not lie from the decision of the NLRC.

We first address the procedural question on the propriety of the

Rule 43 petition. Rule 43 provides for appeal from quasi-judicialagencies to the CA by way of petition for review. Petition for review

on certiorari or appeal by certiorari is a recourse to the Supreme

Court under Rule 45.

The mode of appeal resorted to by Velasco is wrong because

appeal is not the proper remedy in elevating to the CA the decision

of the NLRC. Section 2, Rule 43 of the 1997 Rules of Civil

Procedure is explicit that Rule 43 "shall not apply to judgments or

final orders issued under the Labor Code of the Philippines."

The correct remedy that should have been availed of is the specialcivil action of certiorari under Rule 65. As this Court held in the

case of Pure Foods Corporation v. NLRC,[39] "the party may also

seasonably avail of the special civil action for certiorari, where

the tribunal, board or officer exercising judicial functions has acted

without or in excess of its jurisdiction, or with grave abuse of

discretion, and praying that judgment be rendered annulling or

modifying the proceedings, as the law requires, of such tribunal,

board or officer."[40] In any case, St. Martin Funeral Homes v.

National Labor Relations Commission[41] settled any doubt as to

the manner of elevating decisions of the NLRC to the CA by holding

that "the legislative intendment was that the special civil action of

certiorari was and still is the proper vehicle for judicial review of

decisions of the NLRC."[42]

That the decision of the NLRC is not subject to appeal could

have been a ground for the CA to dismiss the appeal of Velasco.

[43] But even assuming, arguendo, that his petition could be

liberally treated as one for certiorari under Rule 65, the recourse

should not have prospered.

II. Velasco committed serious misconduct, hence, his dismissal is

justified.

Article 282 of the Labor Code enumerates the just causes where

an employer may terminate the services of an employee,[44] to

wit:

a) Serious misconduct or willful disobedience by the employee

of the lawful orders of his employer or representative in connectionwith his work;

b) Gross and habitual neglect by the employee of his duties;

c) Fraud or willful breach by the employee of the trust reposed in

him by his employer or duly authorized representative;

d) Commission of a crime or offense by the employee against the

person of his employer or any immediate member of his family or

his duly authorized representative; and

e)Other causes analogous to the foregoing.

In Austria v. National Labor Relations Commission,[45] the Court

defined misconduct as "improper and wrongful conduct. It is the

transgression of some established and definite rule of action, a

forbidden act, a dereliction of duty, willful in character, and implies

wrongful intent and not mere error in judgment."[46] In Camus v.

Civil Service Board of Appeals,[47] misconduct was described as

"wrong or improper conduct."[48] It implies a wrongful intention

and not a mere error of judgment.[49]


18/26

Of course, ordinary misconduct would not justify the termination of

the services of an employee. The law is explicit that the

misconduct should be serious. It is settled that in order for

misconduct to be serious, "it must be of such grave and aggravated

character and not merely trivial or unimportant."[50] As amplified

by jurisprudence, the misconduct must (1) be serious; (2) relate to

the performance of the employee's duties; and (3) show that the

employee has become unfit to continue working for the employer.

[51]

Measured by the foregoing yardstick, We rule that Velasco

committed serious misconduct that warrants termination from

employment.

A. The misconduct is serious. Velasco violated bank rules when he

transacted a "no-book" withdrawal by his failure to present his

passbook to the PNB Ligao, Albay Branch on June 30, 1995. Section

1216 of the Manual of Regulations for Banks and Other Financial

Intermediaries state that "[b]anks are prohibited fromissuing/accepting `withdrawal authority slips' or any other similar

instruments designed to effect withdrawals of savings deposits

without following the usual practice of requiring the depositors

concerned to present their passbooks and accomplishing the

necessary withdrawal slips."

Further, he failed to present any letter of introduction as mandated

under General Circular 3-72-92 which requires that "[b]efore going

out-of-town, the Depositor secures a Letter of Introduction from the

branch/office where his Peso Savings Account is maintained."

The presentation of passbook and letter of introduction is not

without a valid reason. As aptly stated by the IAD of PNB:

Considering that the PNB Ligao, Albay Branch is an offline branch,

it is a must that an LOI and the passbook be presented by the

depositor before any withdrawal is allowed. This procedure is

required in order for the negotiating branch to determine or

ascertain the available balance and the specimen signature of the

withdrawing party. Moreover, the maintaining branch upon

issuance of the LOI shall place a "hold" on the account in the

computer as an internal control procedure.[52]

True, a strict reading of General Circular 3-72-92 would lead one to

conclude that only persons with peso savings account are required

to secure a letter of introduction. However, simple logic dictates

that those maintaining dollar savings account are also included. No

cogent reason would be served by the rule if only persons with

peso savings account are required to get a letter of introduction.

Otherwise, there can be a circumvention of the rule. Nemo potest

facere per alium qud non potest facere per directum. No one is

allowed to do indirectly what he is prohibited to do directly.

Sinuman ay hindi pinapayagang gawin nang hindi tuwiran ang

ipinagbabawal gawin nang tuwiran.

As an audit officer, Velasco should be the first to ensure that

banking laws, policies, rules and regulations, are strictly observed

and applied by its officers in the day-to-day transactions. The

banking system is an indispensable institution in the modern

world. It plays a vital role in the economic life of every civilized

nation. Whether banks act as mere passive entities for the

safekeeping and saving of money, or as active instruments ofbusiness and commerce, they have become an ubiquitous presence

among the citizenry, who have come to regard them with respect

and even gratitude and, most of all, confidence.[53]

The CA, however, opined that the failure of Velasco to abide by the

rules is not serious misconduct because (1) from the admission of

PNB itself, allowing bank personnel who are out-of-town to make a

"no-book" transaction without a letter of introduction is considered

a common practice, and (2) the approving officers of PNB Ligao

Branch should have also been administratively charged considering

that the "no-book" transaction could not have pushed throughwithout their approval.[54]

In Santos v. San Miguel Corporation,[55] petitioner, in his defense,

cited the prolonged practice of payroll personnel, including persons

in managerial levels, of encashing personal checks. Finding this

argument unmeritorious, the Court held that "[p]rolonged practice

of encashing personal checks among respondent's payroll

personnel does not excuse or justify petitioner's misdeeds. Her

willful and deliberate acts were in gross violation of respondent's

policy against encashment of personal checks of its personnel,

embodied in its Cash Department Memorandum dated September


19/26

6, 1989."[56] The Court even added that petitioner "cannot feign

ignorance of such memorandum as she is duty-bound to keep

abreast of company policies related to financial matters within the

corporation."[57] We apply the same principle here.

Suffice it to state that the option of who to charge or punish

belongs to PNB. As an employer, PNB is given the latitude to

determine who among its erring employees should be punished, to

what extent and what penalty to impose.[58] Too, by chargingVelasco, PNB is not estopped from charging its other employees

who might as well have been remiss with their job.

Of course, We are not unaware that Velasco had a change of heart.

In his sworn Letter-Explanation February 12, 1996, he admitted

that his June 30, 1995 withdrawal of US$15,000.00 was a "no-book"

transaction. However, in his sworn Answer dated April 30, 1996, he

claimed that he actually presented his passbook when he withdrew

on June 30, 1995.

To recall, he was charged with dishonesty, grave misconduct,

and/or conduct grossly prejudicial to the best interest of the service

for irregularly handling his dollar savings account. Thus, it is safe

to assume that when he prepared his February 12, 1996 sworn

Letter-Explanation, the circumstances surrounding his June 30,

1995 withdrawal at PNB Ligao, Albay Branch were still fresh on his

mind. The allegations against him were serious, which should have

put him on guard from preparing a haphazard explanation. He

should have been mindful that dire consequences would surely

befall him should the charges against him be proven. Lest it be

forgotten, the no-book withdrawal was confirmed by the concernedofficers of PNB Ligao, Albay Branch, namely, Quiambao, Gacer, and

Letada. These circumstances, taken together, lead to no other

conclusion than that Velasco changed his explanation from "no-

book" to "with book" transaction after realizing that he violated

bank rules and regulations.

Perez v. People,[59] is illustrative on this score. Perez, an acting

municipal treasurer, submitted two contradicting answers

explaining the location of the missing funds under his custody and

control: the first, reiterating his previous verbal admission before

the audit team that part of the money was used to pay for the loan

of his late brother, another portion was spent for the food of his

family, and the rest for his medicine; and the second, claiming that

the alleged missing amount was in the possession and custody of

his accountable personnel at the time of the audit examination.

This Court held that the sudden turnaround of Perez was merely an

afterthought. He "only changed his story to exonerate himself,

after realizing that his first Answer put him in a hole, so to

speak."[60] Neither did the Court believe that his alleged sicknessaffected the preparation of his first Answer. Perez "presented no

convincing evidence that his disease at the time he formulated that

Answer diminished his capacity to formulate a true, clear and

coherent response to any query. In fact, its contents merely

reiterated his verbal explanation to the auditing team on January 5,

1989 on how he disposed of the missing funds."[61]

We find no cogent reason to depart from Our ruling in Perez. The

claim of Velasco that his initial answer was made under pressing

circumstances is too flimsy an excuse. It partakes of the nature of

an alibi. As such, it constitutes a self-serving negative evidence

which cannot he accorded greater evidentiary weight than the

declaration of credible witnesses who testified on affirmative

matters.[62] The Court has consistently frowned upon the

defense of alibi, and received it with caution, not only because it

is inherently weak and unreliable but also because it can be easily

fabricated.[63]

Also worth noting is that Velasco never imputed any ill motive on

the part of Rexor, Gacer, and Letada who collectively narrated that

the June 30, 1995 withdrawal was a no-book transaction. Theyconfirmed his earlier version that he did not present his passbook

when he withdrew the US$15,000.00 on June 30, 1995. In any

case, the fact that he changed his stance puts his credibility in

doubt. Was he lying when he submitted his sworn letter-

explanation of February 12, 1996, or when he submitted his sworn

Answer dated April 30, 1996? Allegans contraria non est

audiendus. He is not to be heard who alleges things contradictory

to each other. Hindi dapat pakinggan ang nagsasabi ng mga bagay

na salungat sa isa't-isa.


20/26

Velasco did not only violate bank rules and regulations. What

compounds his offense was his unusual silence. He never informed

PNB about the huge overstatement of US$15,000.00 in his account.

He updated his passbook on October 6, 1995 by depositing

US$12.78. Thus, as early as that date, he should have known that

something was wrong with the credited balance in his passbook

and reported it immediately to the concerned officers of PNB. What

he did, instead, was to keep mum until PNB discovered the incident

and notified him on February 7, 1996, or almost eight (8) months

after his no-book withdrawal on June 30, 1995.

With his silence, he clearly intended to gain at the expense of PNB.

The omission to report is not trivial or inconsequential because it

gave him the opportunity to withdraw from his dollar savings

account more than its real balance, as what he actually did. He

took advantage of the overstatement of his account, instead of

protecting the interest of the bank. It would be impossible for him

not to detect the error at the time he deposited US$12.78 on

October 6, 1995, because his account had a big balance despitethe fact that no large amount of money was deposited.

His claim that he was satisfied with the updated balance of

US$15,486.01 on October 6, 1995, as he thought that the

US$15,000.00 in his account was the amount given by his brother,

is simply unbelievable. It is a desperate attempt at exculpation.

The deposit of the money from his brother should have been

reflected in the on-line computer of PNB. The deposit would

have also been posted for update upon the presentation of the

passbook on October 6, 1995. No deposit of US$15,000.00 was,

however, reflected in the passbook.

In Aboitiz Shipping Corporation v. Dela Serna,[64] Tiu v. National

Labor Relations Commission,[65] Five J Taxi v. National Labor

Relations Commission,[66] and Falguera v. Linsangan,[67] among

other cases, this Court consistently held that factual findings of

quasi-judicial agencies, which have acquired expertise in matters

entrusted to their jurisdiction, are accorded not only respect but

also finality if they are supported by substantial evidence.[68]

Thus, in the absence of proof that the Labor Arbiter or the NLRC

had gravely abused their discretion, this Court shall deem

conclusive and will not overturn their particular factual findings.

[69]

The Labor Arbiter and the NLRC are in unison that Velasco

transacted a no-book withdrawal and failed to present a letter of

introduction at PNB Ligao, Albay Branch on June 30, 1995. He also

forged his passbook to cover up his offense. Being duly supported

by substantial evidence, We sustain said finding. Fitness for

continued employment cannot be compartmentalized into tightlittle cubicles of aspects of character, conduct, and ability separate

and independent of each other. A service of irregularities, when

combined, may constitute serious misconduct which is a just cause

for dismissal.[70]

B. The serious misconduct relates to the performance of duties.

The CA ruled that the offense of Velasco was not work-related and

does not warrant dismissal. It likewise held that there is no proof

that his failure to be a good depositor affected his duties or

performance as an employee of PNB.[71]

At first glance, the acts committed by Velasco pertain only to his

being a depositor of PNB. But he has a dual personality. He was a

depositor and, at the same time, an officer of the bank.

On one hand, he failed to present his passbook and a letter of

introduction when he withdrew US$15,000.00 at PNB Ligao, Albay

Branch on June 30, 1995. This serious misconduct was aggravated

when he presented a falsified passbook to make it appear that he

did not commit any misdeed. On the other hand, he worked for

PNB for eighteen (18) long years, his last position having been asManager 1 of the IAD. As such, he was involved in the

examination of the books of account of PNB. Thus,

when he violated bank rules and regulations and tried to cover up

his infractions by falsifying his passbook, he was not only

committing them as a depositor but also, or rather more so, as an

officer of the bank. It is akin to falsification of time cards,[72] and

circulation of fake meal tickets,[73] which this Court held as a just

cause for terminating the services of an employee.

C. Velasco has become unfit to continue working at PNB. Takentogether, his acts render him unfit to remain in the employ of the


21/26

bank. That it is his first offense is of no moment because he holds

a managerial position. Employers are allowed wide latitude of

discretion in terminating managerial employees who, by virtue of

their position, require full trust and confidence in the performance

of their duties.[74] Managerial employees like Velasco are tasked

to perform key and sensitive functions and are bound by more

exacting work ethics.[75] Indeed, not even his eighteen (18) years

of service could exonerate him. As this Court held in Equitable

PCIBank v. Caguioa:[76]

The leniency sought by respondent on the basis of her 35 years

of service to the bank must be weighed in conjunction with the

other considerations raised by petitioners. As that service has been

amply compensated, her plea for leniency cannot offset her

dishonesty. Even government employees who are validly dismissed

from the service by reason of timely discovered offenses are

deprived of retirement benefits. Treating respondent in the same

manner as the loyal and code-abiding employees, despite the

timely discovery of her Code violations, may indeed have ademoralizing effect on the entire bank. Be it remembered that

banks thrive on and endeavor to retain public trust and

confidence, every violation of which must thus be accompanied by

appropriate sanctions.[77]

III. The CA erred in directing PNB to pay Velasco separation pay

and backwages. PNB has no other liability to Velasco, except his

unpaid wages from May 27, 1996 to July 31, 1996.

PNB was registered under the Corporation Code under SEC Reg. No.

ASO 96-005555 dated May 27, 1996.[78] Thus, on that day,employees of

PNB came under the jurisdiction of the Labor Code, whose Sections

8 and 9 of Rule XXIII, Book V of the Implementing Rules state:

Section 8. Preventive Suspension. - The employer may place the

worker concerned under preventive suspension if his continued

employment poses a serious and imminent threat to the life or

property of the employer or his co-workers.

Section 9. No preventive suspension shall last longer than thirty(30) days. The employer shall thereafter reinstate the worker in his

former or in a substantially equivalent position or the employer

may extend the period of suspension provided that during the

period of extension, he pays the wages and other benefits due to

the worker. In such case, the worker shall not be bound to

reimburse the amount paid to him during the extension if the

employer decides, after completion of the hearing, to dismiss the

worker.

PNB has the right to preventively suspend Velasco during thependency of the administrative case against him. It was obviously

done as a measure of self-protection. It was necessary to secure

the vital records of PNB which, in view of the position of Velasco as

internal auditor, are easily accessible to him.

Velasco was preventively suspended for more than thirty (30) days

as of May 27, 1996, while the records bear that Velasco was paid

his salaries from August 1, 1996 to October 31, 1996.[79] Thus,

the NLRC is correct in its holding that he may recover his salaries

from May 27, 1996 to July 31, 1996.

He is not entitled to separation and backwages because he was

not illegally dismissed.[80] We note though that PNB was not at all

insensitive to his plight, considering (1) his restitution of the

amount akin to no actual loss to the bank, and (2) his length of

service of eighteen (18) years.[81] As stated earlier, PNB imposed

on Velasco the penalty of forced resignation with benefits, instead

of dismissal. The records bear out that he was granted

P542,110.75 as separation benefits[82] which was used to offset

his loan in the bank, leaving an outstanding balance of P167,625.82

as of May 27, 1997.[83] We find that PNB acted humanely underthe circumstances.

One last word.

The law imposes great burdens on the employer. One needs only

to look at the varied provisions of the Labor Code. Indeed, the law

is tilted towards the plight of the working man. The Labor Code is

titled that way and not as "Employer Code." As one American

ruling puts it, the protection of labor is the highest office of our

laws.[84]


22/26

Corollary to this, however, is the right of the employer to expect

from the employee no less than adequate work, diligence and good

conduct.[85] As Mr. Justice Joseph McKenna of the United States

Supreme Court said in Arizona Copper Co. v. Hammer,[86] "[t]he

difference between the position of the employer and the employee,

simply considering the latter as economically weaker, is not a

justification for the violation of the rights of the former."[87]

WHEREFORE, the petition is GRANTED and the appealed DecisionREVERSED and SET ASIDE. The Decision of the National Labor

Relations Commission is REINSTATED.

[G.R. No. 116568. September 3, 1999]

DELFIN GARCIA, doing business under the name NAPCO-

LUZMART, Inc., petitioners, vs. NATIONAL LABOR

RELATIONS COMMISSION and CARLITO LACSON,

respondents.

D E C I S I O N

GONZAGA-REYES, J.:

Before us is a Petition for Certiorari under Rule 65 of the Rules of

Court to annul and set aside the decision of the National Labor

Relations Commission[1] in NLRC CA No. L-001268 dated April 12,

1994 which affirmed the decision of the Sub-Regional Arbitration

Branch No. I in Dagupan City finding that the private respondent

Carlito Lacson was constructively dismissed by the petitioner Delfin

Garcia doing business under the name NAPCO-LUZMART, Inc. and

awarding respondent backwages and separation pay.

The following facts as adopted by the National Labor Relations

Commission (NLRC) are uncontroverted:

Complainant Carlito Lacson was employed on March 5, 1987 as

boiler operator technician by Northwest Agro-Marine Products

Corporation (NAPCO). On December 12, 1990 respondent Luzmart,

Inc., acquired NAPCO in a foreclosure sale. Both companies were

managed by respondent Delfin Garcia.

On January 28, 1993, there was a mauling incident which involved

the complainant and Julius Z. Viray, his immediate supervisor and

allegedly a friend and compadre of respondent Garcia. As

complainant suffered injuries as a result thereof he reported the

matter to police authorities and he sought treatment at the TeofiloSison Memorial Provincial Hospital. Both the complainant and Viray

were asked to explain their sides. After the submission of the

written explanations, Delfin Garcia suspended both of them from

work for a period of one month effective April 15, 1993. In the

same suspension order, complainant was further directed to

explain in writing why he should not be dealt with disciplinary

action or terminated for his continued absences from February 15,

1993 up to the date of the memorandum order. Complainant filed

a complaint for illegal dismissal and other monetary claims but the

same was dismissed without prejudice. On September 1, 1993, thecomplainant refiled this case.[2]

The Labor Arbiter[3] ruled in favor of the respondent Carlito Lacson

(LACSON). Petitioner NAPCO-Luzmart (LUZMART) appealed to the

NLRC which affirmed the decision of the Labor Arbiter after finding

that the Labor Arbiter did not commit any reversible error. The

NLRC however deleted the award of attorneys fees in favor of

LACSON. Its decision, which adopted the conclusions of the Labor

Arbiter, reads:


23/26

In finding for the complainant, the Labor Arbiter ruled:

The issues to be resolved in this case are: (1) whether or not the

complainant was dismissed from his employment; (2) whether or

not he is entitled to his claim for overtime services, separation pay,

13th month pay, premium pay for working on holidays and rest

days, separation pay, 13th month pay and service incentive leave

pay; and, (3) whether or not the complainant is considered an

employee of the respondents since March 1987.

The first issue: Respondent Delfin Garcia insists that he did not

dismiss the complainant and that he can return to his work after his

one month suspension, (affidavit of respondent Garcia, marked as

Annex H of his position paper). On the other hand, complainant

Lacson maintains that he reported for work several times but

respondent Garcia refused to take him back and that the former

told him to look for another job.

Let us scrutinize the evidence. The incident involving the

complainant and Julius Viray, also an employee of the respondents,wherein Viray allegedly mauled the complainant, happened on

January 28, 1993. On February 1993, the complainant submitted

his handwritten explanation blaming Viray as the aggressor.

According to the complainant, Viray was drunk at the time of the

incident and although he avoided Viray, the latter armed with a

lead pipe, followed him and wanted to kill him (Annex C

complainant). Viray also submitted his handwritten explanation on

February 2, 1993 (see Annex E-1 of respondents position paper).

Viray only stated that a heated argument transpired. On March

31, 1993, respondent Garcia issued a Memorandum suspendingboth the complainant and Viray for one (1) month effective April

15, 1993 and at the same time required the complainant to explain

why he should not be terminated for being absent from Feb. 15,

1993, (Annex F, respondents). The question is, why did it take

respondent Delfin Garcia one (1) month or more to decide and

issue an order suspending the complainant and Viray? Why did he

not suspend the two immediately after the incident? This leads

credence to the complainants allegation that he reported for work

after submitting his explanation but respondent Garcia refused to

admit him back and told him to take a vacation or to look for

another work, hence he decided to file a complaint against him on

Feb. 4, 1993, which was later dismissed without prejudice, the

reason for the dismissal of which was not explained to us by the

complainant. Moreover, it is true that the complainant failed to

report for work since Feb. 15, 1993, why did respondent Garcia not

issue an order or memorandum after the complainant failed to

report for a number of days and directing the complainant to report

immediately otherwise his employment will be terminated? We

also agree with the complainants argument that the respondents

should not have asked him to explain his alleged failure to report

for work since Feb. 15, 1993, because he has already filed a

complaint against Garcia earlier.

The second issue; Annexes G, G-1 to G-14 of the

respondents, which are samples of respondents payroll, show that

Johnson v Johnson Union

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