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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos.

L-58674-77 July 11, 1990 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. DOMINGO PANIS, Presiding Judge of the Court of First Instance of Zambales & Olongapo City, Branch III and SERAPIO ABUG, respondents. CRUZ, J: The basic issue in this case is the correct interpretation of Article 13(b) of P.D. 442, otherwise known as the Labor Code, reading as follows: (b) Recruitment and placement' refers to any act of canvassing, enlisting, contracting, transporting, hiring, or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. Four informations were filed on January 9, 1981, in the Court of First Instance of Zambales and Olongapo City alleging that Serapio Abug, private respondent herein, "without first securing a license from the Ministry of Labor as a holder of authority to operate a fee-charging employment agency, did then and there wilfully, unlawfully and criminally operate a private fee charging employment agency by charging fees and expenses (from) and promising employment in Saudi Arabia" to four separate individuals named therein, in violation of Article 16 in relation to Article 39 of the Labor Code. 1 Abug filed a motion to quash on the ground that the informations did not charge an offense because he was accused of illegally recruiting only one person in each of the four informations. Under the proviso in Article 13(b), he claimed, there would be illegal recruitment only "whenever two or more persons are in any manner promised or offered any employment for a fee. " 2 Denied at first, the motion was reconsidered and finally granted in the Orders of the trial court dated June 24 and September 17, 1981. The prosecution is now before us on certiorari. 3 The posture of the petitioner is that the private respondent is being prosecuted under Article 39 in relation to Article 16 of the Labor Code; hence, Article 13(b) is not applicable. However, as the first two cited articles penalize acts of recruitment and placement without proper

authority, which is the charge embodied in the informations, application of the definition of recruitment and placement in Article 13(b) is unavoidable. The view of the private respondents is that to constitute recruitment and placement, all the acts mentioned in this article should involve dealings with two or m re persons as an indispensable requirement. On the other hand, the petitioner argues that the requirement of two or more persons is imposed only where the recruitment and placement consists of an offer or promise of employment to such persons and always in consideration of a fee. The other acts mentioned in the body of the article may involve even only one person and are not necessarily for profit. Neither interpretation is acceptable. We fail to see why the proviso should speak only of an offer or promise of employment if the purpose was to apply the requirement of two or more persons to all the acts mentioned in the basic rule. For its part, the petitioner does not explain why dealings with two or more persons are needed where the recruitment and placement consists of an offer or promise of employment but not when it is done through "canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring (of) workers. As we see it, the proviso was intended neither to impose a condition on the basic rule nor to provide an exception thereto but merely to create a presumption. The presumption is that the individual or entity is engaged in recruitment and placement whenever he or it is dealing with two or more persons to whom, in consideration of a fee, an offer or promise of employment is made in the course of the "canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring (of) workers. " The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. Any of the acts mentioned in the basic rule in Article 13(b) win constitute recruitment and placement even if only one prospective worker is involved. The proviso merely lays down a rule of evidence that where a fee is collected in consideration of a promise or offer of employment to two or more prospective workers, the individual or entity dealing with them shall be deemed to be engaged in the act of recruitment and placement. The words "shall be deemed" create that presumption. This is not unlike the presumption in article 217 of the Revised Penal Code, for example, regarding the failure of a public officer to produce upon lawful demand funds or property entrusted to his custody. Such failure shall be prima facie evidence that he has put them to personal use; in other words, he shall be deemed to have malversed such funds or property. In the instant case, the word "shall be deemed" should by the same token be given the force of a disputable presumption or of prima facie evidence of engaging in recruitment and placement. (Klepp vs. Odin Tp., McHenry County 40 ND N.W. 313, 314.) It is unfortunate that we can only speculate on the meaning of the questioned provision for lack of records of debates and deliberations that would otherwise have been available if the Labor Code had been enacted as a statute rather than a presidential decree. The trouble with presidential decrees is that they could be, and sometimes were, issued without previous

public discussion or consultation, the promulgator heeding only his own counsel or those of his close advisers in their lofty pinnacle of power. The not infrequent results are rejection, intentional or not, of the interest of the greater number and, as in the instant case, certain esoteric provisions that one cannot read against the background facts usually reported in the legislative journals. At any rate, the interpretation here adopted should give more force to the campaign against illegal recruitment and placement, which has victimized many Filipino workers seeking a better life in a foreign land, and investing hard- earned savings or even borrowed funds in pursuit of their dream, only to be awakened to the reality of a cynical deception at the hands of theirown countrymen. WHEREFORE, the Orders of June 24, 1981, and September 17, 1981, are set aside and the four informations against the private respondent reinstated. No costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 91552-55 March 10, 1994 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO MANUNGAS, JR. y GO @ "PERCY", accused-appellant. The Solicitor General for plaintiff-appellee. Rolando Gamalinda for accused-appellant. NOCON, J.: This is an appeal by accused-appellant Fernando Manungas, Jr. alias "Percy" from the decision 1 dated October 31, 1989 of the Regional Trial Court of Lingayen, Pangasisnan, Branch 38 in Criminal Cases Nos. L-3993, L-3994, L-3996 and L-4000 finding him guilty beyond reasonable doubt of the crimes of ESTAFA and ILLEGAL RECRUITMENT, the dispositive portion of which reads: In the light of what has been stated and discussed above, the court finds and holds the accused Fernando Manungas y Go alias "Percy" guilty beyond peradventure of doubt of the crimes filed against him and conformable thereto, hereby pronounces judgment as follows:

In Criminal Case No. L-3993, the court declares accused, Fernando Manungas y Go alias "Percy" guilty of estafa for the sum of P16,800.00 as alleged in the information filed against him and there being no aggravating nor mitigating circumstance, and applying the Indeterminate Sentence Law in his favor, said accused is hereby sentenced to suffer the prison term from two (2) years, eleven (11) months and ten years (10) days as minimum to five (5) years, five (5) months and eleven (11) days of prision correccional as maximum and to pay the costs of the proceedings. The court further orders the accused to reimburse the offended party, Wilfrey Mabalot, the sum of sixteen thousand eight hundred (P16,800.00) pesos which is the amount of money paid and delivered to him by said complaining witness without subsidiary imprisonment in case of insolvency. In Criminal Case No. L-3994, the court likewise declares the accused, Fernando Manungas y Go alias "Percy" guilty of estafa for the sum of P17,550.00 as charged in the information. And there being no aggravating nor mitigating circumstance present, and applying the Indeterminate Sentence Law in his favor, the accused is hereby sentenced to suffer an indeterminate prison term from two (2) years, eleven (11) months and ten (10) days as minimum to five (5) years, five (5) months and (11) days ofprision correccional as maximum and to pay the costs of the proceedings. The court further directs the accused to reimburse the offended party, Danilo Ramirez the sum of seventeen thousand five hundred fifty (P17,550.00) pesos which the accused took from the complaint without subsidiary imprisonment in case of insolvency. In Criminal Case No. L-3996, the court also declares the accused, Fernando Manungas y Go alias "Percy" guilty of estafa for eighteen thousand six hundred (P18,600.00) pesos as charged in the information filed against him. There being no aggravating nor mitigating circumstance present, and applying the Indeterminate Law in his favor, said accused is hereby sentenced to suffer an indeterminate prison term from two (2) years, eleven months (11) months and ten (10) days asminimum to five (5) years, five (5) months and eleven (11) days of prision correccional as maximumand to pay the costs of the proceedings. The court also directs the accused to reimburse the offended party the sum of eighteen thousand six hundred (P18,600.00) pesos which is the amount paid and delivered by the offended party to him without subsidiary imprisonment in case of insolvency. In Criminal Case No. L-4000, the court likewise holds the accused, Fernando Manungas y Go alias "Precy" guilty of the crime of Illegal Recruitment on Large Scale as charged in the information filed against him, defined and penalized under the provisions of Article 39, par. (a) of Presidential Decree No. 2018 amending

Articles 38 and 39 of P.D. No. 442, otherwise known as the Labor Code of the Philippines, and conformable thereto, hereby sentences the said accused to suffer the penalty of Life Imprisonment and to pay a fine of One Hundred Thousand (P100,000.00) pesos without subsidiary imprisonment in case of insolvency pursuant to law. The accused shall serve the penalties herein imposed against him successively or one after the other according to their severity. 2 Based on the evidence adduced before the trial court, the facts of the case are as follows: Sometime in April of 1987, accused-appellant Fernando Manungas, Jr. went to Barangay Legaspi, Tayug, Pangasinan where he stayed in the house of Arturo and Lilia de Vera to recruit workers for employment abroad. During his stay, accused-appellant was able to convince complainants Wilfrey Mabalot, Danilo Ramirez, Leonardo Estanoco and Crisanto Collado to apply as janitors in Saudi Arabia. He told them to bring all the necessary documents for the processing of their applications to his office in Manila. On April 29, 1987, complainants went to accused-appellant's office located at Room 611, L and S Bldg., 1414 Roxas Blvd., Ermita, Manila and paid accused-appellant P250.00 each for their medical examination. Thereafter, accused-appellant required the complainants to pay, on various occasions, placement fees and other expenses incurred in the processing of their papers and issued corresponding receipts for said amounts. The total amount paid by the complainants to accused-appellant are the following: Wilfrey Mabalot P16,800.00; Danilo Ramirez P17,550.00, Leonardo Estanoco 18,600.00, and Crisanto Collado 13,300.00 When complainants failed to leave for Saudi Arabia, they requested Luis "Jing" Ramirez, to verify with the Philippine Overseas Employment Administration (POEA) whether accusedappellant was licensed to recruit workers for abroad. They subsequently learned that he was not as shown by the Certification issued by the POEA. 3 Thereafter, complaints filed against accused-appellant complaints for Estafa defined under par. 2(a), Article 315 of the Revised Penal Code and Illegal Recruitment on a Large Scale. In due course, informations fro three (3) counts of Estafa (Criminal Cases Nos. L-3993, L-3994 and L-3996) and Illegal Recruitment on a Large Scale (Criminal Case No. L-4000) were filed against accused-appellant before the Regional Trial Court of Lingayen, Pangasinan. On the other hand, accused-appellant maintained that he was the operations manager of the ZG Recruitment and Placement Agency, a duly licensed recruitment agency. Sometime in April 1987, he went to Barangay Legaspi, Tayug, Pangasinan and recruited complainants to work in Saudi Arabia as janitors. Unfortunately, the job order for the janitorial services was awarded to Express Placement Agency instead of ZG Recruitment and Placement agency. Thereafter, accused-appellant transferred complainants' application for overseas employment to Nora Cunanan of Express Placement Agency. Accused-appellant also turned over the fees paid by the complainants to Nora Cunanan as evidenced by the receipts 4 issued by the latter.

When Nora Cunanan absconded with the money of the complainants, accused-appellant filed an estafa case against Nora Cunanan after securing a Special Power of Attorney from the complainants to prosecute and collect their money. However, he was not able to attend the hearing as he was arrested in connection with the these cases. Accused-appellant maintains that he did not make false representations to the complainants when he requited the latter for employment abroad as he had told complainants that he is only an employee of a licensed recruitment agency in Manila. He further claims that he was not motivated by any deceitful intentions and had not caused any damage to the complainants because the amounts of money given to him by the latter were actually spent for their medical tests and other documents necessary for their overseas employment. Article 13 (b) of the Labor Code defines "Recruitment and Placement" as: Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. In the instant case, accused-appellant told complainants to submit to him their pictures, birth certificates, NBI clearances and the necessary documents for the processing of their employment in Saudi Arabia. Thereafter, accused-appellant collected from each of the complainants payment for the their respective passport, training fee, placement fee, medical tests and other sundry expenses which unquestionably constitutes acts of recruitment within the meaning of the law. Besides, there is illegal recruitment when one gives the impression of his ability to send a worker abroad 5 and there is evidence that accused-appellant had represented to the complainants that he could send them abroad as janitors in Saudi Arabia. And because of his representation, complainants gave their hard-earned money to accusedappellant in consideration of the same representation. As pointed out by the Solicitor General in his brief: It may be that at the time appellant recruited private complainants, he was then the operations manager of the ZGR Placement Agency, a duly licensed recruitment agency. But, as amply established by the evidence, the recruitment of private complainants was appellant's own personal undertaking. He did not do it for the agency. This is clearly shown by the sequence of events that led to the consum[m]ation of the transaction in question. Thus: it was appellant who talked private complainants into applying for employment abroad; when private complainants signified their interest, he alone was the one who informed them of the documents that they have to secure; he too was the one who demanded and received from them the fees for medical examination, passport, authentication, training, placement and psycho and AIDS test; also, he was the one who assured them of employment abroad and of the return of their money in the event of their

non-deployment; moreover, it was he who undertook to inform private complainants of their departure. But that is not all. When private complainants failed to receive notice of their departure as promised them by appellant, they had somebody verify with the POEA if appellant was a licensed recruiter. This circumstance shows all the more that indeed appellant represented himself to be the recruiter, otherwise it would have been the status of the agency with which he allegedly worked for, that private complainants would have requested to be verified. 6 As to accused-appellant's claim that he did not misappropriate the money given to him by the complainants as he had turned over the latters' placement fees to Nora Cunanan, who subsequently absconded with the complainant's money, the trial court correctly held that: The version of the defense has the nature of a cock and bull story which is difficult and hard to accept. It is something that is fantastic and ridiculous. It is within the realm of fiction and patently a mere fabrication to exculpate the accused from the consequences of his nefarious and deceitful activities. If it is really true that the complainants were transferred and accommodated by the agency of Nora Cunanan, why did not the accused and Mrs. Lydia Zamora who appear to be both intelligent take the necessary prudence and caution of putting the supposed agreement to transfer in writing considering the amounts of funds involved in the alleged transfer. Logic and common sense dictate that under such a situation, the accused and Mrs. Zamora take ordinary care of their concerns. To impress the court that there was really a transfer made, the accused claimed that there was a estafa case filed against Mrs. Cunanan before the City Fiscal's Office in Manila. It is however surprising why Atty. Jose Torrefranca who was engaged by the accused to file the estafa case did not present any letter-complaint or any charged sheet filed against Mrs. Cunanan. He did not even mention the Fiscal who investigated the case. More intriguing is the fact that counsel does not know what happened to the alleged case of estafa after he filed the same. Likewise, when Mrs. Lydia Zamora declared, she claimed that the case filed against Nora Cunanan was before the Regional Trial Court and not in the City Fiscal's Office. Defense also made capital of the special power of atty. executed by the complainants (exhibit 4) and their letters sent to the accused (exhibits 5, 6, 7 and 8) to convince the court that the real culprit in the whole mess in Nora Cunanan. The complainants made convincing explanation why they signed the special power of attorney. Wilfrey Mabalot declared that when the accused asked him to sign the document, he was told that its purpose is to facilitate their departure and when he signed the letter exhibit "6" he was just told to sign by the accused and because the latter was in [a] hurry, he signed without knowing its contents. He likewise explained that being a mere high school graduate he was not able to understand the imports of its contents. Danilo Ramirez explained that when he signed the special power of attorney, he did not read the contents because the accused was in [a] hurry in returning to Manila and that he sent the three letters to the accused while he was

confined in jail because Manungas asked him to help him (accused) recover the money given to Mrs. Cunanan. Leonardo Estanoco declared, that he signed exhibit "4" because the accused told him that the document will be used to facilitate the processing of their papers. He did not understand its contents because he only understands little English. 7 Thus accused-appellant is guilty of the crimes of Estafa and Illegal Recruitment. Under Article 38 of the Labor Code, as amended, the crime of illegal recruitment is qualified when the same is committed against three (3) or more persons. A person who violates any of the provisions under Article 13(b) and Article 34 of the Labor Code can be charged and convicted separately of illegal recruitment and estafa [Revised Penal Code, Article 315, 2(a)] because illegal recruitment is a malum prohibitum where the criminal intent of the accused is not necessary for a conviction while estafa is a malum in se where criminal intent of the accused is necessary for a conviction. WHEREFORE, finding the accused-appellant guilty of the crimes of estafa and illegal recruitment in a large scale, decision of the trial court is hereby AFFIRMED. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 129577-80 February 15, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BULU CHOWDURY, accusedappellant. PUNO, J.: In November 1995, Bulu Chowduly and Josephine Ong were charged before the Regional Trial Court of Manila with the crime of illegal recruitment in large scale committed as follows: That sometime between the period from August 1994 to October 1994 in the City of Manila, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, representing themselves to have the capacity to contract, enlist and transport workers for employment abroad, conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously recruit the herein complainants: Estrella B. Calleja, Melvin C. Miranda and Aser S. Sasis, individually or as a group for employment in Korea without first obtaining the

required license and/or authority from the Philippine Overseas Employment Administration.1 They were likewise charged with three counts of estafa committed against private complainants.2 The State Prosecutor, however, later dismissed the estafa charges against Chowdury3 and filed an amended information indicting only Ong for the offense. 4 Chowdury was arraigned on April 16, 1996 while Ong remained at large. He pleaded "not guilty" to the charge of illegal recruitment in large scale. 5 Trial ensued. The prosecution presented four witnesses: private complainants Aser Sasis, Estrella Calleja and Melvin Miranda, and Labor Employment Officer Abbelyn Caguitla. Sasis testified that he first met Chowdury in August 1994 when he applied with Craftrade Overseas Developers (Craftrade) for employment as factory worker in South Korea. Chowdury, a consultant of Craftrade, conducted the interview. During the interview, Chowdury informed him about the requirements for employment. He told him to submit his passport, NBI clearance, passport size picture and medical certificate. He also required him to undergo a seminar. He advised him that placement would be on a first-come-first-serve basis and urged him to complete the requirements immediately. Sasis was also charged a processing fee of P25,000.00. Sasis completed all the requirements in September 1994. He also paid a total amount of P16,000.00 to Craftrade as processing fee. All payments were received by Ong for which she issued three receipts. 6 Chowdury then processed his papers and convinced him to complete his payment.7 Sasis further said that he went to the office of Craftrade three times to follow up his application but he was always told to return some other day. In one of his visits to Craftrade's office, he was informed that he would no longer be deployed for employment abroad. This prompted him to withdraw his payment but he could no longer find Chowdury. After two unsuccessful attempts to contact him, he decided to file with the Philippine Overseas Employment Administration (POEA) a case for illegal recruitment against Chowdury. Upon verification with the POEA, he learned that Craftrade's license had already expired and has not been renewed and that Chowdury, in his personal capacity, was not a licensed recruiter. 8 Calleja testified that in June 1994, she applied with Craftrade for employment as factory worker in South Korea. She was interviewed by Chowdury. During the interview, he asked questions regarding her marital status, her age and her province. Toward the end of the interview, Chowdury told her that she would be working in a factory in Korea. He required her to submit her passport, NBI clearance, ID pictures, medical certificate and birth certificate. He also obliged her to attend a seminar on overseas employment. After she submitted all the documentary requirements, Chowdury required her to pay P20,000.00 as placement fee. Calleja made the payment on August 11, 1994 to Ong for which she was issued a receipt.9 Chowdury assured her that she would be able to leave on the first week of

September but it proved to be an empty promise. Calleja was not able to leave despite several follow-ups. Thus, she went to the POEA where she discovered that Craftrade's license had already expired. She tried to withdraw her money from Craftrade to no avail. Calleja filed a complaint for illegal recruitment against Chowdury upon advice of POEA's legal counsel. 10 Miranda testified that in September 1994, his cousin accompanied him to the office of Craftrade in Ermita, Manila and introduced him to Chowdury who presented himself as consultant and interviewer. Chowdury required him to fill out a bio-data sheet before conducting the interview. Chowdury told Miranda during the interview that he would send him to Korea for employment as factory worker. Then he asked him to submit the following documents: passport, passport size picture, NBI clearance and medical certificate. After he complied with the requirements, he was advised to wait for his visa and to pay P25,000.00 as processing fee. He paid the amount of P25,000.00 to Ong who issued receipts therefor.11 Craftrade, however, failed to deploy him. Hence, Miranda filed or complaint with the POEA against Chowdury for illegal recruitment.12 Labor Employment Officer Abbelyn Caguitla of the Licensing Branch of the POEA testified that she prepared a certification on June 9, 1996 that Chowdury and his co-accused, Ong, were not, in their personal capacities, licensed recruiters nor were they connected with any licensed agency. She nonetheless stated that Craftrade was previously licensed to recruit workers for abroad which expired on December 15, 1993. It applied for renewal of its license but was only granted a temporary license effective December 16, 1993 until September 11, 1994. From September 11, 1994, the POEA granted Craftrade another temporary authority to process the expiring visas of overseas workers who have already been deployed. The POEA suspended Craftrade's temporary license on December 6, 1994. 13 For his defense, Chowdury testified that he worked as interviewer at Craftrade from 1990 until 1994. His primary duty was to interview job applicants for abroad. As a mere employee, he only followed the instructions given by his superiors, Mr. Emmanuel Geslani, the agency's President and General Manager, and Mr. Utkal Chowdury, the agency's Managing Director. Chowdury admitted that he interviewed private complainants on different dates. Their office secretary handed him their bio-data and thereafter he led them to his room where he conducted the interviews. During the interviews, he had with him a form containing the qualifications for the job and he filled out this form based on the applicant's responses to his questions. He then submitted them to Mr. Utkal Chowdury who in turn evaluated his findings. He never received money from the applicants. He resigned from Craftrade on November 12, 1994.14 Another defense witness, Emelita Masangkay who worked at the Accreditation Branch of the POEA presented a list of the accredited principals of Craftrade Overseas Developers 15 and a list of processed workers of Craftrade Overseas Developers from 1988 to 1994. 16 The trial court found Chowdury guilty beyond reasonable doubt of the crime of illegal recruitment in large scale. It sentenced him to life imprisonment and to pay a fine of P100,000.00. It further ordered him to pay Aser Sasis the amount of P16,000.00, Estrella

Calleja, P20,000.00 and Melvin Miranda, P25,000.00. The dispositive portion of the decision reads: WHEREFORE, in view of the foregoing considerations, the prosecution having proved the guilt of the accused Bulu Chowdury beyond reasonable doubt of the crime of Illegal Recruitment in large scale, he is hereby sentenced to suffer the penalty of life imprisonment and a fine of P100,000.00 under Art. 39 (b) of the New Labor Code of the Philippines. The accused is ordered to pay the complainants Aser Sasis the amount of P16,000.00; Estrella Calleja the amount of P20,000.00; Melvin Miranda the amount of P25,000.00.17 Chowdury appealed. The elements of illegal recruitment in large scale are: (1) The accused undertook any recruitment activity defined under Article 13 (b) or any prohibited practice enumerated under Article 34 of the Labor Code; (2) He did not have the license or authority to lawfully engage in the recruitment and placement of workers; and (3) He committed the same against three or more persons, individually or as a group.18 The last paragraph of Section 6 of Republic Act (RA) 8042 19 states who shall be held liable for the offense, thus: The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having control, management or direction of their business shall be liable . The Revised Penal Code which supplements the law on illegal recruitment defines who are the principals, accomplices and accessories. The principals are: (1) those who take a direct part in the execution of the act; (2) those who directly force or induce others to commit it; and (3) those who cooperate in the commission of the offense by another act without which it would not have been accomplished.21 The accomplices are those persons who may not be considered as principal as defined in Section 17 of the Revised Penal Code but cooperate in the execution of the offense by previous or simultaneous act. 22 The accessories are those who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manner: (1) by profiting themselves or assisting the offenders to profit by the effects of the crime; (2) by concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery; and (3) by harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder,
20

or an attempt at the life of the chief executive, or is known to be habitually guilty of some other crime.23 Citing the second sentence of the last paragraph of Section 6 of RA 8042, accused-appellant contends that he may not be held liable for the offense as he was merely an employee of Craftrade and he only performed the tasks assigned to him by his superiors. He argues that the ones who should be held liable for the offense are the officers having control, management and direction of the agency. As stated in the first sentence of Section 6 of RA 8042, the persons who may be held liable for illegal recruitment are the principals, accomplices and accessories. An employee of a company or corporation engaged in illegal recruitment may be held liable as principal, together with his employer,24 if it is shown that he actively and consciously participated in illegal recruitment.25 It has been held that the existence of the corporate entity does not shield from prosecution the corporate agent who knowingly and intentionally causes the corporation to commit a crime. The corporation obviously acts, and can act, only by and through its human agents, and it is their conduct which the law must deter, The employee or agent of a corporation engaged in unlawful business naturally aids and abets in the carrying on of such business and will be prosecuted as principal if with knowledge of the business, its purpose and effect, he consciously contributes his efforts to its conduct and promotion, however slight his contribution may be.26 The law of agency, as applied in civil cases, has no application in criminal cases, and no man can escape punishment when he participates in the commission of a crime upon the ground that he simply acted as an agent of any party. 27 The culpability of the employee therefore hinges on his knowledge of the offense and his active participation in its commission. Where it is shown that the employee was merely acting under the direction of his superiors and was unaware that his acts constituted a crime, he may not be held criminally liable for an act done for and in behalf of his employer. 28 The fundamental issue in this case, therefore, is whether accused-appellant knowingly and intentionally participated in the commission of the crime charged. We find that he did not. Evidence shows that accused-appellant interviewed private complainants in the months of June, August and September in 1994 at Craftrade's office. At that time, he was employed as interviewer of Craftrade which was then operating under a temporary authority given by the POEA pending renewal of its license. 29 The temporary license included the authority to recruit workers.30 He was convicted based on the fact that he was not registered with the POEA as employee of Craftrade. Neither was he, in his personal capacity, licensed to recruit overseas workers. Section 10 Rule II Book II of the Rules and Regulation Governing Overseas Employment (1991) requires that every change, termination or appointment of officers, representatives and personnel of licensed agencies be registered with the POEA. Agents or representatives appointed by a licensed recruitment agency whose appointments are not previously approved by the POEA are considered "non-licensee" or "non-holder of authority" and therefore not authorized to engage in recruitment activity. 31

Upon examination of the records, however, we find that the prosecution failed to prove that accused-appellant was aware of Craftrade's failure to register his name with the POEA and that he actively engaged in recruitment despite this knowledge. The obligation to register its personnel with the POEA belongs to the officers of the agency. 32 A mere employee of the agency cannot be expected to know the legal requirements for its operation. The evidence at hand shows that accused-appellant carried out his duties as interviewer of Craftrade believing that the agency was duly licensed by the POEA and he, in turn, was duly authorized by his agency to deal with the applicants in its behalf. Accused-appellant in fact confined his actions to his job description. He merely interviewed the applicants and informed them of the requirements for deployment but he never received money from them. Their payments were received by the agency's cashier, Josephine Ong. Furthermore, he performed his tasks under the supervision of its president and managing director. Hence, we hold that the prosecution failed to prove beyond reasonable doubt accused-appellant's conscious and active participation in the commission of the crime of illegal recruitment. His conviction, therefore, is without basis. This is not to say that private complainants are left with no remedy for the wrong committed against them. The Department of Justice may still file a complaint against the officers having control, management or direction of the business of Craftrade Overseas Developers (Craftrade), so long as the offense has not yet prescribed. Illegal recruitment is a crime of economic sabotage which need to be curbed by the strong arm of the law. It is important, however, to stress that the government's action must be directed to the real offenders, those who perpetrate the crime and benefit from it. IN VIEW WHEREOF, the assailed decision of the Regional Trial Court is REVERSED and SET ASIDE. Accused-appellant is hereby ACQUITTED. The Director of the Bureau of Corrections is ordered to RELEASE accused-appellant unless he is being held for some other cause, and to REPORT to this Court compliance with this order within ten (10) days from receipt of this decision. Let a copy of this Decision be furnished the Secretary of the Department of Justice for his information and appropriate action. 1wphi1.nt SO ORDERED.

SECOND DIVISION [G.R. No. 132311. September 28, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MINA LIBRERO, accusedappellant. DECISION BELLOSILLO, J.: MINA LIBRERO appeals from the Decision of the Regional Trial Court [1]convicting her of Illegal Recruitment in Large Scale in Crim. Case No. 97-593 and eight (8) counts ofEstafa in Crim. Cases Nos. 97-594, 97-597, 97-598, 97-599, 97-560, 97-561, 97-562 and 97-563. The Information for Illegal Recruitment in Large Scale charged that in October 1996 in Makati City accused-appellant Mina Librero, representing herself as having the capacity to deploy complainants Liza Peclaro, Elizalde Capillo, Elenor Gramonte, Ramonito Bautista, Allan Joseph Nones, Arthur Osias, Edgar Amparo, Leonardo Fortun, John William Green and Andres Apatas to either Taiwan or Brunei as factory workers, salesladies or domestic helpers, in conspiracy with one Ana Laurente, feloniously recruited them and collected from them as placement fees various amounts ranging from P20,000.00 to P75,000.00 which complainants paid to the two (2) recruiters who did not possess any license or authority from the Philippine Overseas Employment Administration (POEA) as required by law and and who were unable to reimburse the amounts despite demands therefor.[2] The eight (8) Informations for Estafa under Art. 315, par. 2, subpar. (a), of the Revised Penal Code charged that on or about October 7 and 25, 1996, November 6, 18, 21 and 27, 1996, and January 9 and 24 1997, in Makati City, accused-appellant Mina Librero together with Ana Laurente feloniously recruited John William Green, Leonardo Fortun, Elizalde Caspillo, Edgar Amparo, Arthur Osias, Allan Joseph Nones, Ramonito Bautista as factory workers in Taiwan for a consideration ranging from P38,000.00 to P75,000.00, Andres Apatas as a metal worker in Taiwan for P75,000.00, Liza Peclaro as saleslady in Brunei for P50,000.00 as well as Elenor Gramonte as domestic helper in Taiwan for P20,000.00 knowing fully well that they (Mina Librero and Ana Laurente) had no power or lawful authority whatsoever to do so and succeeded in exacting the aforesaid amounts from complainants to the latter's damage and prejudice.[3] Of the ten (10) original complaining witnesses eight (8) testified for the prosecution. Criminal Cases Nos. 97-595 and 97-596 were provisionally dismissed with the conformity of

complainants Leonardo Fortun and Elizalde Caspillo. [4] Only Mina Librero was tried as Ana Laurente has remained at large. ARTHUR OSIAS testified that on 15 November 1996 he went to the KGW International Office (KGW) at Raman Condominium, Pasong Tamo, Makati City, to apply for a job abroad. [5] There he met accused-appellant Mina Librero who promised him a job as a factory worker in Taiwan with a monthly salary of P15,360.00 or its equivalent in Taiwanese dollars. [6] She required him to submit his passport and NBI clearance and gave him a referral for medical examination. [7] He was told to give P75,000.00 as placement fee for the job abroad. That day he paid Librero P55,000.00, a fact he noted down in his diary. [8] Upon payment of the balance of P20,000.00 on 18 November 1996[9]she issued him a receipt for the full amount of P75,000.00. In the first week of January 1997 when she failed to send him abroad as agreed Osias demanded from her the refund of his money. Osias never got to leave nor receive his money back. ALLAN JOSEPH NONES went to KGW in the second week of November and met accusedappellant Mina Librero. She told him that if he had P75,000.00 cash for placement fee she could send him immediately to Taiwan as a factory worker. [10] Nones at once gave her P65,000.00 on 18 November 1996 and P10,000.00 on 21 November 1996. Librero issued Nones the corresponding receipts.[11] Then she required him to submit his passport, medical certificate and NBI clearance, which he promptly submitted, as well as a certificate of attendance at the Pre-departure Orientation Seminar (PREDOS) which he would submit after the seminar. Librero undertook to send Nones abroad in the third week of November 1996. When she failed to send him as scheduled, she again promised to deploy him in the first week of December 1996. Nones even waited after the third and fourth promises. But after the first week of January 1997, he demanded a refund of his money which she could not give. So, Nones verified Librero's status from the POEA only to find out that she had no license. [12] RAMONITO BAUTISTA and Mina Librero met on 16 October 1996 at Raman Condominium, Pasong Tamo, Makati City. Librero represented to Bautista that she could immediately send him to Taiwan as a factory worker for a monthly salary of P15,000.00 in Taiwanese dollars if he would shell out P75,000.00.[13] On 19 November 1996 at the KGW office Bautista paid Librero the P75,000.00 placement fee for which she issued a receipt. [14] Librero assured Bautista since the last week of November 1996 that she would send him abroad. However, in the first week of February 1997 Bautista got disgruntled that he went to Librero's office only to find out that Librero was no longer there. Bautista never got his money back.[15]

ANDRES APATAS went to the Raman Condominium in Makati City on 18 November 1996 to apply for the supposed "reserved position" of metal cutter in Taiwan.[16] At KGW he met Librero who assured him that he could work in Taiwan as metal cutter earning P14,860.00 a month in Taiwanese dollars if he could give a placement fee of P75,000.00.[17] On 27 November 1996 Apatas gave P75.000.00 to Librero for which the latter issued the corresponding receipt.[18] When Librero failed to send him abroad and return his money Apatas filed a complaint with the POEA.[19] EDGAR AMPARO, in his desire to work abroad, made some inquiries and learned that somebody from KGW could send workers abroad. On 6 November 1996 he went to the KGW office where he saw Librero who introduced herself as one of the ranking employees of KGW. [20] She told him that if he submitted pictures, his passport, application form and other documents as well as P75,000.00 as placement fee she could easily send him abroad. Although Amparo submitted the required documents he could give only P55,000.00 as downpayment for which Librero gave him a receipt [21] written on a piece of paper.[22] He was just as unlucky as the others.[23] ELENOR GRAMONTE heard of Mina Librero from a friend, a certain Ma. Luisa who was also an applicant for a job abroad. On 24 August 1996 Gramonte went to the KGW where she met Librero. She told Gramonte that she could deploy her abroad as a domestic helper in Taiwan if the latter could submit her passport, NBI clearance, medical certificate and P30,000.00 as placement fee. Gramonte submitted the required documents but paid only P20,000.00 on 24 January 1997[24] for which she was issued a receipt for the amount.[25] On 10 February 1997, the date she was supposed to be sent abroad, Gramonte went to Librero's office only to find out that it was already closed. Gramonte looked for Librero at her home and called her up but she was never deployed abroad; her money was not also returned.[26] JOHN WILLIAM GREEN met Librero in Cavite City in September 1996 who told him that she was recruiting workers for abroad. Interested in taking advantage of the opportunity, Green went to Raman Building, Pasong Tamo, Makati City, to apply. He met Librero who assured him that he could be sent abroad as soon as he give her P45,000.00 as placement fee.[27] So, on 23 September 1996 Green gave P25,000.00 to Librero who brought him to Amberlyn Service Contractor Corporation (AMBERLYN) at Pasong Tamo, Makati City. A receipt signed by Ana Laurente[28] was later issued to Green. Librero then promised Green that he could leave on or before 14 November 1996. But the trip never materialised, although Green was a little fortunate than the others. At least he was able to get back from Librero P2,000.00 of his P25,000.00 placement fee.[29] LIZA PECLARO also met Librero in Cavite City on 12 November 1996 during its town fiesta. Librero informed her that she could send workers abroad and that she owned KGW.

[30]

On 15 November 1996 Peclaro went to the KGW office in Makati City and filled up application forms for a saleslady job in Brunei with a monthly salary of P15,000.00 in Brunei dollars.[31] She also had a medical examination. On 9 January 1997 she paid the P50,000.00 placement fee.[32] Librero however gave a receipt only for P40,000.00[33] with a promise to Peclaro that the latter could leave in a week's time. When Librero failed to fulfill her commitment Peclaro asked for a refund and refused the plane ticket offered to her with her name on it. She never got a refund. Edwin Cristobal testified as Senior Labor and Employment Officer of the POEA Licensing Branch.[34] He confirmed that until 29 January 1997 Librero was not registered with any licensed agency of the POEA.[35] Cristobal stated that a person should be connected with an agency in order to recruit workers for overseas jobs because the POEA did not grant individual licenses.[36] He further explained that all employees of a registered agency regardless of their positions must be reported to the POEA otherwise they could not be involved with any recruitment activities. [37] He reiterated that per POEA records Librero was not listed as a personnel of KGW.[38] On 29 September 1997 the trial court convicted Mina Librero as charged and rendered judgment as follows: (a) In Crim. Case No. 97-593 she was sentenced to life imprisonment and to pay a fine of P500,000.00 and the costs; (b) In Crim. Case No. 97-594 she was sentenced to suffer imprisonment from six (6) years of prision correccional to ten (10) years of prision mayor; to pay John William Green the sum of P43,000.00, and to pay the cost; (c) In Crim. Case No. 97-597 she was sentenced to suffer imprisoment from six (6) years of prision correccional to eleven (11) years of prision mayor, to pay Edgar Amparo P55,000.00, and to pay the cost; (d) In Crim. Case No. 97-598 she was sentenced to suffer imprisonment from eight (8) years of prision mayor to thirteen (13) years of reclusion temporal, to pay Arthur Osias P75,000.00, and to pay the costs; (e) In Crim. Case No. 97-599 she was sentenced to suffer imprisonment from eight (8) years of prision mayor to thirteen (13) years of reclusion temporal, to pay Allan Joseph Nones P75,000.00, and to pay the costs; (f) In Crim. Case No. 97-600 she was sentenced to suffer imprisonment from eight (8) years of prision mayor to thirteen (13) years of reclusion temporal, to pay Ramonito Bautista P75,000.00, and to pay the costs; (g) In Crim. Case No. 97-601 she was sentenced to suffer imprisonment from eight (8) years of prision mayor to thirteen (13) years ofreclusion temporal, to pay Andres Apatas P75,000.00, and to pay the costs; (h) In Crim. Case No. 97-602 she was sentenced to suffer imprisoment from six (6) years of prision correccional to ten (10) years of prision mayor, to pay Liza Peclaro P50,000.00, and to pay the costs; and, (i) In Crim. Case No. 97-603 she was sentenced to suffer imprisonment from two (2) years four (4) months and one (1) day of prision correccional to six (6) years and one (1) day of prision mayor, to pay Elenor Gramonte P20,000.00, and to pay the costs.

Accused-appellant Librero now assails her conviction and contends that the court a quo erred (a) in not dismissing the Information as defective for including Ana Asuncion Laurente as coaccused, whose name and participation have never been mentioned by the complainants before the POEA or the DOJ; (b) in not taking into account the apparent and obviously inconsistent statements of complainants, especially as to the number of employees and condition of Librero's office; (c) in not finding Librero to be a mere employee; (d) in not blaming the complainants for recklessly giving their money to somebody without prior verification from the POEA; (e) in not finding that a person as an individual alone could not secure a license as a recruitment agency and therefore could not be charged with illegal recruitment without including the management of the agency; and, (f) in not considering the receipts issued by Librero as those by a mere employee whose amounts she turned over to co-accused Laurente who is the Vice-President of the agency. We affirm her conviction. We reject the contention of accused-appellant Librero that the charges in the Informations against her were defective for the sole reason that Laurente, her co-accused, was never mentioned by complainants either at the POEA or the DOJ. It should be noted that the records showed that complainant Green linked Ana Laurente with Librero's recruiting activities. He testified that accused-appellant brought him over to Laurente's office where he was given a receipt signed by Laurente. [39] Moreover, the settled rule is that the determination of who should be criminally charged in court is essentially an executive function, not a judicial one. As the officer authorized to direct and control the prosecution of all criminal actions, the prosecutor is tasked to ascertain whether there is sufficient ground to engender a well-founded belief that an offense has been committed and that the accused is probably guilty thereof.[40] Contrarily, accused-appellant in her second, third, fifth and sixth assigned errors insists that she was only a mere employee of Ana Laurente. As such, she should be acquitted on the theory that as an employee she need not secure a license, did not personally profit from the undertaking, and had no knowledge of the illegality of their recruitment activities. That accused-appellant was a mere employee of her co-accused Ana Laurente is a matter of affirmative defense. Thus, it is her duty to prove, with the quantum of evidence required by law, the employment relationship between her and Laurente, the legitimacy of the operations of Laurente's agency and accused-appellant's involvement therein during the period that complainants relied on her representations. [41] But this, accused-appellant absolutely failed to do. Firstly, accused-appellant claims to be an employee of AMBERLYN under Laurente since 1 September 1996. The records of POEA however show that as of 14 February 1997 the name of Librero did not appear in the list of employees submitted by AMBERLYN. [42] The presumption then is that she was not an employee of AMBERLYN. As Edwin Cristobal of the

POEA averred, all the employees, whatever be their positions in the recruitment agency, were required to be registered with the POEA. Secondly, defense witness Josephine Basco tried to impress the trial court that she saw accused-appellant working at AMBERLYN. She even testified to seeing a meeting between the two (2) on 16 January 1997 wherein Laurente was giving accused-appellant instructions. [43] Yet accused-appellant herself testified that after Laurente was arrested on 22 December 1996, she no longer saw Laurente.[44] Thirdly, assuming that Basco was telling the truth, the fact is that all the complainants testified that they all applied at Librero's KGW office. Even Green, whose receipt was signed by Laurente, applied at KGW and was brought to AMBERLYN only for the receipt signing of his first payment. Green's second payment was also made at KGW and the receipt signed by accused-appellant. Fourthly, accused-appellant did not deny that she knew the complainants. [45] What she denies, however, is that the recruitment took place at KGW. The testimonies of the complainants on the matter are affirmative in nature and sufficiently corroborative of each other to be less than credible. It is hard to imagine how eight (8) people, not knowing each other and residing in different areas far from each other, could fabricate such a detailed and almost symmetrical account of their respective unpleasantexperiences with accused-appellant.[46] More so, when we bear in mind that accused-appellant has denied ever knowing the complainants before. In People v. Villas[47]we observed that it was contrary to human nature and experience for persons to conspire and accuse a stranger of a crime that would take the latter's liberty and send him to prison just to appease their feeling of rejection and vindicate the frustration of their dreams to work abroad. It is in this light that we find any inconsistencies that accusedappellant harps on in the testimonies of the complainants to be inconsequential. What is important is that they have positively identified accused-appellant as their illegal recruiter. [48] From the foregoing, the question that must be asked is: If accused-appellant indeed worked for Laurente under AMBERLYN, why was accused-appellant usually seen at work at the KGW office? It could only mean that the arrangement between Laurente and accused-appellant, whatever it may be, was not officially acknowledged or sanctioned by AMBERLYN. Hence, accused-appellant may not be allowed to take refuge behind AMBERLYN's mantle. What is clear from the evidence on record is that accused-appellant was categorically named by the complainants as their recruiter. She was the one pointed to by the complainants as representing herself to have the capacity to send them overseas with cushy jobs waiting for them. She was the one who received their payments and issued receipts.She informed them of the requirements for deployment abroad. She named KGW as her office and worked in an

office under the name of KGW. Yet at the time that she was working ostensibly for KGW she was not in the list of its employees nor was KGW licensed or existing because it was delisted from the roster of POEA licensed agencies on 16 August 1996. [49] Thus, the aforementioned facts show that accused-appellant was neither an employee of AMBERLYN nor of KGW. Not being an employee of registered recruiting agencies, accusedappellant necessarily had no license to recruit complainants, hence, her promises of employment abroad for a fee to the eight (8) complainants were tainted with the presumption of being within the purview of "illegal recruitment" in large scale under Sec. 6 of RA 8042 Sec.6. Definition. - For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-license or non-holder of authority contemplated under Art. 13 (f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines; Provided, that any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged x x x x Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage. Illegal recruitment is deemed committed x x x in large scale if committed against three (3) or more persons individually or as a group. Accused-appellant failed to rebut the presumption in the face of the overwhelming evidence of the prosecution. Her defenses of lack of profit and lack of criminal intent are pointless. It is the lack of the necessary license or authority which renders the recruitment activity unlawful or criminal.[50] Worth reiterating is the rule that illegal recruitment in large scale is malum prohibitum, not malum in se, and the fact alone that a person has violated the law warrants her conviction.[51] As if desperate in her bid to free herself from the predicament she was in, accused-appellant would put the blame on the complainants themselves, imputing recklessness to them in parting with their money. This Court recognizes the difficult times we are in and realizes that hopes for a better future for many Filipinos lie in overseas employment. [52] But illegal recruiters have taken undue advantage of this reality. These present-day predators should not be allowed to feast on the gullibility of their countrymen whose only desire is to improve their lot. The Court likewise affirms the conviction of accused-appellant for Estafa committed against the eight (8) complainants. Conviction under RA 8042 or The Labor Code of the Philippines does not preclude punishment under the Revised Penal Code for the crime of estafa.[53] The abovementioned facts established by the prosecution proved that the following elements of estafa had been committed by accused-appellant, to wit: (a) accused-appellant

defrauded another by abuse of confidence, or by means of deceit, and (b) the offended party suffered damage or prejudice capable of pecuniary estimation. [54] However, the trial court apparently erred in the computation of penalties for estafa. Article 315 of the Revised Penal Code provides Art. 315. Swindling (estafa) - Any person who shall defraud another by any of the means mentioned herein below shall be punished by: 1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over P12,000.00 pesos but does not exceed P22,000.00 pesos; and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional P10,000.00 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such case, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be; xxxx Under Sec. 1 of The Indeterminate Sentence Law, the maximum term of the penalty shall be "that which, in view of the attending circumstances, could be properly imposed"under The Revised Penal Code, and the minimum shall be "within the range of the penalty next lower to that prescribed" for the offense. In People v. Gabres[55] we elucidated The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided.The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence. The fact that the amounts involved in the instant case exceed P22,000.00 should not be considered in the initial determination of the indeterminate penalty; instead, that matter should be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for the estafa charge against accused-appellant is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence should be anywhere within six (6) months and one (1) day to four (4) years and two (2) months while the maximumterm of the indeterminate sentence should at least be six (6) years and one (1) day because the amounts involved exceeded P22,000.00, plus an additional one (1) year for each additional P10,000.00.

Accordingly, the penalties imposed by the trial court should thus be modified In Crim. Case No.97-594 the amount involved is P43,000.00. Hence, the minimum penalty should be reduced to four (4) years and two (2) months of prision correccional which is the maximum of the allowable minimum penalty of the indeterminate sentence. The maximum penalty should at least be six (6) years, eight (8) months and twenty-one (21) days of prision mayor (the maximum prescribed by Art. 315) plus a period of two (2) years [one (1) year for each additional P10,000.00] for a total maximum period of eight (8) years, eight (8) months and twenty-one (21) days of prision mayor. The same penalty should also be imposed in Crim. Case No. 97-602 where the amount involved is P50,000.00. In Crim. Case No. 97-597 the amount involved is P55,000.00. Again, the minimum penalty should also be reduced to four (4) years and two (2) months of prision correccional.The maximum penalty should again be at least six (6) years, eight (8) months and twenty-one (21) days of prision mayor plus three (3) years (for each additional P10,000.00) or a total maximum period of nine (9) years, eight (8) months and twenty-one (21) days of prision mayor. Criminal Cases Nos. 97-598, 97-599, 97-600 and 97-601 involve the uniform amount of P75,000.00. The minimum penalty in each case should be reduced to four (4) years and two (2) months of prision correccional. Each maximum penalty should be eleven (11) years, eight (8) months and twenty-one (21) days of prision mayor as the sum total of at least six (6) years, eight (8) months and twenty-one (21) days of prision mayor plus five (5) years [one (1) year for each additional P10,000.00]. Criminal Case No. 97-603 involves the amount of P20,000.00, thus the penalty imposed by the court a quo of two (2) years, four (4) months and one (1) day of prision correccional, to six (6) years and one (1) day of prision mayor is within the proper range. WHEREFORE, the appealed Decision finding accused-appellant MINA LIBRERO guilty of Illegal Recruitment in Large Scale and eight (8) counts of Estafa is AFFIRMEDsubject to the MODIFICATION insofar as the penalties therein imposed are concerned (1) In Crim. Case No. 97-593 accused-appellant MINA LIBRERO is sentenced to life imprisonment, and to pay the fine of P500,000.00, plus costs; (2) In Crim. Cases Nos. 97-594 and 97-602 accused-appellant MINA LIBRERO is sentenced to an indeterminate prison term of four (4) years and two (2) months of prision correccional as minimum to eight (8) years, eight (8) months and twenty-one (21) days of prision mayor as maximum. She is also ordered to pay John William Green the amount ofP43,000.00 and Liza Peclaro the amount of P50,000.00, plus the costs;

(3) In Crim. Case No. 97-597 accused-appellant MINA LIBRERO is sentenced to an indeterminate prison term of four (4) years and two (2) months of prision correccional as minimum to nine (9) years, eight (8) months and twenty-one (21) days of prision mayor as maximum and to pay Edgar Amparo the sum of P55,000.00 plus the costs; (4) In Crim. Cases Nos. 97-598, 97-599, 97-600 and 97-601 accused-appellant MINA LIBRERO is sentenced to an indeterminate prison term of four (4) years and two (2) months of prision correccional as minimum to eleven (11) years, eight (8) months and twenty-one (21) days of prision mayor as maximum, and to pay Arthur Osias, Allan Joseph Nones, Ramonito Bautista and Andres Apatas each the sum of P75,000.00, plus the costs; and, (5) In Crim. Case No. 97-603 accused-appellant MINA LIBRERO is sentenced to an indeterminate prison term of two (2) years, four (4) months and one (1) day of prisioncorreccional to six (6) years and one (1) day of prision mayor, and to pay Elenor Gramonte the sum of P20,000.00, plus the costs. SO ORDERED.

St., Ermita, Manila, where they conducted most of their recruitment activities. To entice complainants the accused represented to them that they were affiliated with Bemil Management Trading and Manpower Services, a duly licensed recruitment agency, and that they had the capacity to send workers to Taiwan, Brunei and Japan. Thus, on different dates, complainants went to the office of the accused and filed their applications together with their NBI Clearances, pictures and other supporting documents. The accused then collected from them placement fees: (a) Marissa Balina, P40,000.00, (b) Anna Marie Pili, P40,000.00, (c) Romulo Macaraeg, P25,000.00, (d) Ernesto Magadan, P20,000.00, (e) Domingo Magadan, Jr., P20,000.00, (f) Roger Castro, P24,000.00, and (g) Nemia Beri, P10,000.00, in addition to P900.00 for medicare and P70.00 for Pre-Departure Orientation Seminar (PREDOS). However, despite the promises and assurances made by the accused, not one of the complainants was deployed for employment abroad, nor were they able to recover the money they paid to the accused. Hence, complainants lodged separate complaints against the accused before the Philippine Overseas Employment Administration (POEA). [2] On 15 August 1997 PNP Senior Inspector Ligaya Cabal of the POEA-CIG Task Force AntiIllegal Recruitment spearheaded a police operation to entrap the accused. Elements of the PNP together with some members of the media proceeded to Ermita Building and placed it under surveillance. Police Officer Cabal, who was in civilian clothes, went alone to the office of the accused in the third floor and posed as a job applicant. The accused inquired if she was applying as there was a vacancy for chambermaid in Brunei. When Officer Cabal answered yes, the accused forthwith furnished her bio-data and visa application forms and instructed her to fill them up.[3] Officer Cabal promptly accomplished the bio-data and application forms. To obviate any suspicion on the part of the accused as to her true identity, she used the assumed name"Joy S. Garcia."[4] The accused then required Officer Cabal to pay the initial amount of P1,500.00 for medical and processing fees. At the instruction of the accused, a certain Teresita Reyoberos received the marked money from Officer Cabal and issued the corresponding receipt therefor.[5] The police dragnet having been laid, Officer Cabal with the use of her cellular phone made the pre-arranged signal to the police operatives waiting outside the building that the marked money had been delivered. [6] Accused Lourdes Gamboa and Teresita Reyoberos were thus apprehended, but the rest of their cohorts eluded arrest and remained at large. Later, however, Teresita Reyoberos was not included in the criminal information after State Prosecutor Zenaida M. Lim found that she was also a job applicant at the office of the accused who merely acceded to the request of accused Melba Mioza to temporarily man the office in her absence.[7] Consequently, only Lourdes Gamboa was hailed to court and indicted for Illegal Recruitment in Large Scale.

SECOND DIVISION [G.R. No. 135382. September 29, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LOURDES GAMBOA alias Des or Lourdes Gamboa y Golfe, BONIFACIO MIOZA (at large), MELBA MIOZA alias Melba, Eva Mioza (at large) and GLORIA SARMIENTO (at large), accused. LOURDES GAMBOA alias Des or Lourdes Gamboa y Golfe, accused-appellant. DECISION BELLOSILLO, J.: This is an appeal from the Partial Decision of the Regional Trial Court finding accused LOURDES GAMBOA alias Des or Lourdes Gamboa y Golfe guilty of Illegal Recruitment in Large Scale under RA 8042, otherwise known as The Migrant Workers and Overseas Filipinos Act of 1995, and imposing upon her life imprisonment and a fine ofP500,000.00. [1] From March 1996 to August 1997 the four (4) accused led by Bonifacio Mioza and Melba Mioza promised overseas employment for a fee to complaining witnesses Marissa Balina, Anna Marie Pili, Romulo Macaraeg, Ernesto Magadan, Domingo Magadan, Jr., Roger Castro and Nemia Beri. The accused were then holding office at Room 302, Ermita Building, Arquiza

In convicting accused-appellant Lourdes Gamboa of the crime charged, the trial court held x x x x the proofs adduced by the prosecution have clearly and conclusively demonstrated that the accused, conspiring and confederating with three others, has offered, enlisted and promised overseas employment to [complainants]. Against the mass of evidence arrayed by the prosecution, all that the accused could offer was her bare and unconfirmed denials and explanation x x x x The court, however, is not inclined to uphold and sustain the denials and explanations of the accused, which are negative in character and self-serving in nature. Her unconfirmed version cannot, certainly, outweigh and command greater evidentiary measure than the overwhelming testimonies of the Peoples principal witnesses, who narrated in vivid and clear-cut details the various aspects of her recruitment and placement activities. x x x x the evidence for the People has likewise conclusively established that the accused is neither personally licensed nor authorized by the POEA to recruit workers for overseas employment (Exhibit B).Although the defense has shown that the license and authority of the Bemil Management Trading and Manpower Services to recruit, process and deploy landbased workers had been renewed and validated for the period from October 26, 1995 to October 25, 1997 (Exhibit 11), the evidence clearly indicates that the accused was neither an employee of, nor was she connected with, the said management and manpower services. It was not also proved that any of her cohorts from whom the accused derived her authority to recruit workers were authorized personnel of Bemil, notwithstanding the fact that the POEA has records of the officers and employees of Bemil from the highest to the lowest. In this appeal, accused-appellant faults the court a quo in finding her guilty of Illegal Recruitment in Large Scale. The centerpiece of her defense is three-fold: first, the prosecution failed to prove conspiracy between her and the other accused; second, she was not responsible for the recruitment of the complaining witnesses nor for their non-deployment abroad since she was also a job applicant herself at the office of the other accused and was merely utilized as a worker thereat while waiting for her deployment abroad, just like Teresita Reyoberos; and third, she cannot be held liable for illegal recruitment since she never represented to the complainants that she had the capacity to send them abroad for employment. We find no reason to reverse accused-appellants conviction, hence, we affirm. Preliminarily, the proliferation of illegal job recruiters and syndicates preying on innocent people anxious to obtain employment abroad is one of the primary considerations that led to the enactment of The Migrant Workers and Overseas Filipinos Act of 1995 .[8] Aimed at affording greater protection to overseas Filipino workers, it is a significant improvement on existing laws in the recruitment and placement of workers for overseas employment. Otherwise known as the Magna Carta of OFWs, it broadened the concept of illegal recruitment under the Labor Code [9] and provided stiffer penalties thereto, especially

those that constitute economic sabotage, i.e., Illegal Recruitment in Large Scale andIllegal Recruitment Committed by a Syndicate.[10] In a litany of cases we held that to constitute Illegal Recruitment in Large Scale three (3) elements must concur: (a) the offender has no valid license or authority required by law to enable him to lawfully engage in recruitment and placement of workers; (b) the offender undertakes any of the activities within the meaning of "recruitment and placement" under Art. 13, par. (b), of the Labor Code, or any of the prohibited practices enumerated under Art. 34 of the same Code (now Sec. 6 of RA 8042); and, (c) the offender committed the same against three (3) or more persons, individually or as a group.[11] In the case at bar, there can be no question that the foregoing elements were sufficiently proved by the prosecution. The POEA certified that accused Melba Mioza and her group, which included accused-appellant Lourdes Gamboa, were neither licensed nor authorized to recruit workers for overseas employment. [12] That they recruited seven (7) persons - herein complaining witnesses Marissa Balina, Anna Marie Pili, Romulo Macaraeg, Ernesto Magadan, Domingo Magadan, Jr., Roger Castro and Nemia Beri - not to mention Police Officer Ligaya Cabal, who disguised herself as a job applicant, whom accused-appellant likewise attempted to recruit. Evidently, the illegal recruiters gavecomplainants the impression that they had the power and ability to send the latter to work in various foreign destinations, when in fact they had none. Relying on their assurances and promises of employment abroad, complainants, with much hope and expectation for immediate deployment, agreed to part with their hardearned money to expedite the processing and approval of their applications. We find no cogent reason likewise to disturb the lower courts findings on the existence of a conspiracy since each accused played a part in the recruitment of complainants. [13]Indeed, the testimonies of the complaining witnesses indubitably show a delineation of roles among the accused. Bonifacio Mioza and Melva Mioza were the managers/heads of the illegal recruitment office. Gloria Sarmiento was the field recruiter actively enlisting prospective job applicants together with Bonifacio and Melba Mioza. Accused-appellant Lourdes Gamboa was the office assistant who answered the queries of applicants and performed clerical work. Conspiracy to defraud aspiring overseas contract workers was evident from the acts of the malefactors whose conduct before, during and after the commission of the crime clearly indicated that they were one in purpose and united in its execution. Direct proof of previous agreement to commit a crime is not necessary as it may be deduced from the mode and manner in which the offense was perpetrated or inferred from the acts of the accused pointing to a joint purpose and design, concerted action and community of interest. [14] As such, all the accused, including accused-appellant, are equally guilty of the crime of illegal recruitment since in a conspiracy the act of one is the act of all. Accused-appellant assails the factual basis of the trial court in ruling that she engaged in illegal recruitment, arguing that she was just an applicant herself whom accused Melba

Mioza utilized to help in the office work while waiting for deployment abroad. Her active participation however in the illegal recruitment process belies her profession of innocence.Complainant Roger Castro testified Q: What else happened? A: x x x Melba Mioza told Lourdes to prepare the application form, madam. Q: And what happened next? A: I was taught by Lourdes how to fill up, madam? Q: What? A: The application form, madam. Q: After filling up the application form, what did you do? A: x x x Lourdes asked me if I have the money to pay, madam. Q: And what did you tell her? x x x x A: I was told that on the 29th after I have paid in a months time I will be able to leave, madam. Q: And who was telling you these things? A: It was Lourdes Gamboa who told me that, madam x x x x Q: x x x but what were those documents being required of you to submit? A: NBI Clearance, my passport and we have (sic) to undergo training as a bell boy, madam. Q: Who told you to submit these documents? A: Lourdes Gamboa, madam.[15] Complaining witness Nemia Beri testified Q: What did Lourdes Gamboa tell you? A: She told me just to apply with them because if I will apply for Taiwan, it will take a long time, while in their office just 2 to 3 weeks, [after] I submit the papers. Q: Why, was she in what country? A: In Brunei.

Q: As what? A: Chambermaid. Q: What else did she tell you as to your employment as chambermaid? A: What I have to do is to submit all the necessary requirements to her and pay the amount x xxx Q: So you submitted those documents, to whom did you say? A: To Lourdes Gamboa. Q: Who required you to undergo training? A: Lourdes Gamboa, everytime I called her up when I am in Bicol, she always told me to come over in order to train. Q: Apart from the documents and training, were you required to pay additional fees? A: There is a need for me to pay P900.00 for medicare and P70.00 for PREDOS? PROSECUTOR LIM: Where did you undergo training of PREDOS? A: The PREDOS did not push through, I just paid the amount. Q: To whom did you pay the amount? A: To Lourdes Gamboa. Q: How much did you pay to Lourdes Gamboa? A: I paid her P70.00 x x x x Q: How much did you pay for the medicare? A: I paid P900.00. Q: To whom did you pay P900.00? A: I gave it to Lourdes Gamboa and in turn she gave it to Melba Mioza. [16] Furthermore, during the police entrapment operation appellant who actually recruited the poseur applicant, Officer Cabal it was accused-

Q: Now, you said you were met by Lourdes Gamboa at the office, what did she tell you, if any? A: She told me if Im applying in that agency, the vacancy is as chambermaid in Brunei, madam. Q: What else did she tell you? A: So, she [asked] me if Im interested and I said yes, madam x x x x Q: What else did she tell you? A: She told me to fill up the bio-data form and visa application, madam x x x x Q: Apart from these documents, these visa application form and bio-data, were you asked to fill up any document? A: Upon payment, madam. Q: Which payment? A: The P 1,500.00 marked money, madam. Q: Who told you to pay? A: Lourdes Gamboa, madam x x x x Q: Now, did you actually pay the P1,500? A: Yes, madam. Q: To whom did you pay? A: I paid to Ms. Lourdes Gamboa, madam. Q: Who received the amount? A: It was Teresita Reyoberos, madam. Q: Upon whose instruction? A: Lourdes Gamboa, madam.[17] The precise degree of participation of accused-appellant Lourdes Gamboa in the illegal recruitment scheme is very clear from the foregoing testimonies. She was present when the

complainants were being recruited and in fact personally recruited some of them, providing and assisting them in filling up the application forms, answering their queries, receiving documents and payments, and repeatedly assuring them that they would be able to leave for their respective jobs abroad. These acts demonstrated beyond any cavil of doubt that she was a knowing and willing participant in the recruitment activities of Melba Mioza and her group. Moreover, accused-appellants bare denials and self-serving assertion that she was a mere job applicant herself certainly cannot prevail over the positive assertions of Officer Cabal and the complainants who had no ill motive to testify falsely against her. At any rate, the lack of criminal intent on the part of an accused - assuming ex-gratia argumenti that accused-appellant was indeed unaware of the illegal nature of the recruitment business of her co-accused - is hardly a defense in the prosecution for illegal recruitment. It must be emphasized that Illegal Recruitment in Large Scale penalized under The Migrant Workers and Overseas Filipinos Act of 1995 , a special law, is malum prohibitum and not malum in se. The criminal intent of the accused is not necessary and the fact alone that the accused violated the law warrants her conviction. [18] Accused-appellant next insists that she did not represent to complainants or to Officer Cabal that she has the capacity to send them for overseas employment. That when she asked Officer Cabal, then disguised as a job applicant, if she was applying, the vacancy is for chambermaid in Brunei, she was merely echoing some facts known to her but was not in any way giving Officer Cabal any false representation. We are not persuaded. Suffice it to say that an illegal recruiter need not expressly represent to the victim that she has the ability to send workers abroad. It is enough that she gives the impression of her ability to enlist workers for job placement abroad in order to induce them to tender payment of fees, as what accusedappellant had done to the complainants in this case. [19] Finally, it is doctrinal that the trial courts evaluation of the testimony of witnesses is accorded the highest respect, for the trial court has an untrammeled opportunity to observe directly the demeanor of a witness on the stand and, thus, to determine whether he or she is telling the truth. Such assessment is generally binding on this Court, except when the same has been reached arbitrarily; or when the trial court has overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which could have affected the result of the case. Considering therefore the evidence extant on record, we fully agree with the trial court that accused-appellant, in conspiracy with the other accused in this case, engaged in a recruitment business which, as herein discussed, was illegal and in large scale. Section 7 of RA 8042 prescribes the penalty of life imprisonment and a fine of not less thanP500,000.00 nor more than P1,000,000.00 in cases where the illegal recruitment constitutes an offense involving economic sabotage.[20] Indeed, the alarming incidents of such nefarious crime rationalizes the

imposition of severe penalties under the axiom that extreme situations require extreme remedies. WHEREFORE, the assailed Partial Decision of the trial court dated 18 August 1998 convicting accused-appellant Lourdes Gamboa alias Des or Lourdes Gamboa y Golfe ofIllegal Recruitment in Large Scale, sentencing her to life imprisonment and to pay a fine of P500,000.00, and ordering her to restitute the sums of money collected from the complainants in this case in the total amount of P179,970.00, is AFFIRMED. As for accused Bonifacio Mioza, Melba Mioza and Gloria Sarmiento, who until now have remained at large, let this case be ARCHIVED without prejudice to its reinstatement as soon as the accused shall have been apprehended and brought to the jurisdiction of the court. SO ORDERED.

1. 2. 3. 4. 5. 6. 7. 8.

Constancio Macli-ing Jesssica Estay Sidolia Fias-eo John Mangili Nieva Lampoyas Sabado Agapito Joseph Oratil and Joel Oratil

in Taiwan without first obtaining or securing license or authority from the proper government agency CONTRARY TO LAW.[1] On the same day, eight separate informations for estafa were also filed against Jose Alolino and appellants Alona Buli-e (Buli-e for brevity) and Josefina Alolino (Josefina, for brevity). Except as to the dates, amounts involved [2] and the names of complainants, the following information in Criminal Case No. 11123-R typified the seven other informations for the crime of estafa: That on or about the 12th day of July, 1992, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable court, the above-named accused, conspiring, confederating and mutually aiding one another, did then and there willfully, unlawfully and feloniously defraud one Constancio Macli-ing by way of false pretenses, which are executed prior to or simultaneously with the commission of the fraud, as follows, to wit: the accused knowing fully well that they are not authorized job recruiters for persons intending to secure work abroad convinced said Constancio Macli-ing and pretended that they could secure a job for him/her abroad, for and in consideration of the sum of P15,000.00 when in truth and in fact they could not; the said Constancio Macli-ing, deceived and convinced by the false pretenses employed by the accused, parted away the total sum of P15,000.00 in favor of the accused, to the damage and prejudice of the said Constancio Macli-ing in the aforementioned amount of FIFTEEN THOUSAND PESOS (P15,000.00), Philippine Currency.[3] Jose Alolino was never apprehended and remains at large. Upon arraignment, appellants pleaded not guilty to each of the nine informations filed against them. A joint trial ensued since the cases involved the same factual milieu. Evidence for the prosecution showed that on various dates from June 1990 to July 1992, complainants went to the house of appellant Buli-e at No. 63 Sanitary Camp, Baguio City upon learning that she was recruiting workers for overseas employment. A cousin of complainant Lampoyas, whom Buli-e helped deploy abroad, introduced Lampoyas to Buli-e in 1990.[4] The brothers Oratil went to see Buli-e about possible overseas employment in April 1992.[5] Mangili inquired from Buli-e if she was recruiting workers for overseas employment also in April 1992.[6] Sabado and Macli-ing approached Buli-e for possible overseas work in May 1992,[7] while Estay, accompanied by her sister, went to see Buli-e on June 17, 1992. [8] Fias-eo approached Buli-e on July 13, 1992, accompanied by Lampoyas. [9]

FIRST DIVISION [G.R. No. 123146. June 17, 2003] PEOPLE OF THE PHILIPPINES, appellee, vs. ALONA BULI-E and JOSEFINA (JOSIE) ALOLINO, appellants. DECISION AZCUNA, J.: Appellants Alona Buli-e and Josefina Alolino assail the decision of the Regional Trial Court of Baguio City, Branch 15, finding them guilty beyond reasonable doubt of illegal recruitment committed in large scale and eight counts of estafa. On March 16, 1993, the following information was filed against Jose Alolino and appellants, Alona Buli-e and Josefina Alolino: The undersigned accuses ALONA BULI-E, JOSEFINA (JOSIE) ALOLINO and JOSE ALOLINO for VIOLATION OF ARTICLE 38 (b), PRESIDENTIAL DECREE NO. 442, AS AMENDED BY P.D. 1920 FURTHER AMENDED BY P.D. 2018, committed in large scale, which is an act of economic sabotage, and by a syndicate, committed as follows: That during the period from March 1991 to July 1992, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused representing themselves to have the capacity to contract, enlist and hire and transport Filipino workers for employment abroad did then and there willfully and unlawfully, for a fee, recruit and promise employment / job placement to the following persons:

Buli-e confirmed to complainants that she was, in fact, recruiting contract workers for Taiwan and that, although she did not have a license of her own to recruit, her boss in Manila who was a licensed recruiter, was in the process of getting her one which would soon be issued.[10] Buli-e identified her superiors in Manila to be the spouses Jose [11] and Josefina Alolino. Josefina was connected with Rodolfo S. Ibuna Employment Agency (RSI for brevity), a private employment agency licensed to recruit overseas contract workers. Buli-e informed complainants that requirements for application of overseas work included submission of biodata, passport, NBI clearance, and medical examination clearance to show that the applicant is physically and mentally fit. There was also a placement fee of P40,000 of which P15,000 must be paid in advance. Buli-e told complainants that if they were interested in applying, they may submit to her said requirements which she, in turn, will submit to her boss who was in charge of processing the necessary documents. In the case of complainant Lampoyas who originally applied with Buli-e for employment in Kuwait, she was informed by Buli-e that the latter was working for a certain Jessie Agtarep. [12] Lampoyas gave Buli-e P4,000 on March 14, 1991 as downpayment for the placement fee and P5,000 on August 24, 1991. Lampoyas application papers were processed by Jamal Enterprises in Makati, Metro Manila but in 1992 , Buli-e transferred Lampoyas application to appellant Josefina, whom Buli-e referred to as her new boss. [13]Lampoyas was enticed to work in Taiwan instead of Kuwait and was assured that her deployment papers would be processed more quickly.[14] From March to August 1992, Buli-e accompanied complainants, on separate occasions, to Manila where they had their medical check-up at Saints Peter and Paul Medical Clinic in Ermita. Lampoyas had her medical check-up in March 1992 [15] while Mangili and Joseph Oratil had their medical check-up in May 1992. [16] On June 20, 1992, Estay had her medical check-up,[17] while Agapito and Macli-ing had their medical examination on July 5, 1992. [18] Fias-eo had her medical examination on July 20, 1992 while Joel Oratil had his medical examination in August 1992. Complainants paid for the medical examination, the results of which were given to Buli-e. Immediately after complainants had undergone medical examination, Buli-e brought them to No. 11 Concorde Street, Airmans Village, Las Pias, Metro Manila purportedly to introduce them to her boss, the spouses Alolino. Complainants, except for Macli-ing and Agapito, were able to meet only Jose Alolino on the same day that they had undergone medical examination. Jose Alolino allegedly told complainants that his wife, Josefina, was in Taiwan following up applications but he assured them that they too would be deployed abroad in a matter of months.[19] Mangili, Estay, and the brothers Oratil were able to meet Josefina personally when they returned to the residence of the Alolinos in Manila to follow up their applications.[20] Fias-eo and Lampoyas, on the other hand, never met Josefina personally although they were able to talk to her over the telephone several times when they were following up the status of their applications.[21] It was during these telephone conversations that Josefina instructed Fias-eo and Lampoyas to have their medical examinations and secure their NBI clearance in Manila accompanied by Buli-e whom she identified as her agent. [22] Complainants were assured by one or both of the spouses that they were licensed to recruit overseas contract workers and that they can deploy workers within two to three months.[23] Complainants were informed by Buli-e and Josefina that deployment for Taiwan is

on a first-come, first-served basis and that those who can comply with the requirements, particularly the advance payment of P15,000, shall be deployed first.[24] On different dates from May 1992 to July 1992, complainants handed to Buli-e at Sanitary Camp, Baguio City their advance payments of P15,000 for which they were issued receipts.[25] Mangili paid P11,000 on May 22, 1992 and P4,000 on June 18, 1992.[26] The Oratil brothers paid P15,000 each in installments from May 1992 to July 15, 1992. [27] Macli-ing paid P15,000 on July 12, 1992.[28] Fias-eo gave Buli-e P15,000 on July 13, 1992.[29] In addition to her previous payments amounting to P9,000, Lampoyas paid Buli-e P5,000 also on July 13, 1992.[30] Estay gave P15,000 on July 21, 1992[31] while Agapito paid Buli-e P15,000 on July 22, 1992.[32] Buli-e assured complainants that she delivered the payments to Josefina. Aside from giving the downpayment of the placement fee, complainants complied with the rest of the requirements which included submission of pictures, bio-data, passports, NBI clearances and medical examination reports. After months of waiting and despite compliance with all the requirements, complainants were not deployed abroad as promised by appellants. From August 1992 to February 1993, complainants trooped to Buli-es house but Buli-e merely kept on telling them to wait. When complainants called up Josefina by long distance telephone, they were also told just to wait. Weary of the interminable waiting, complainants went to the POEA office in Baguio City on February 2, 1993, to check whether appellants were indeed licensed to recruit overseas contract workers. They were dismayed to find out that appellants had no license to recruit in Baguio City or any part of the Cordillera Administrative Region (CAR). On the same day, complainants filed their complaints with the POEA-CAR and the Prosecutors Office of Baguio City. After appellants were apprehended and during their detention at the Baguio City Jail, Josefina, through counsel, refunded complainant Fias-eo P15,000 for his downpayment on the placement fee.[33] Complainant Mangili also demanded a refund and he was paid by Josefina, again through her counsel, the sum of P25,000 for his advance payment of P15,000 and as reimbursement of the actual expenses he incurred for his application. [34] During trial, Buli-e testified that she worked for RSI and had been referring applicants to the agency before 1991. She met Josefina a year after she resigned from RSI. [35] In 1990, Buli-e had an applicant for Singapore, a certain Prescilla Laoayan from Baguio City. Buli-e referred Prescilla to RSI which, through Mrs. Fe Go, handled the processing of her application. As part of the requirements of the agency, Prescilla had to undergo training at the house of Josefina, who was then the Marketing Director of RSI. In 1991, Josefina sent Buli-e a note, through Prescilla, telling her to go to the house of Josefina at No.11 Concorde Street, Airmans Village, Las Pias, Metro Manila to discuss matters about recruitment of workers. Buli-e went to the house of Josefina as requested and it was then that she was appointed as an agent of Josefina.[36] Buli-e was tasked to find job applicants for Taiwan, Korea or Singapore whom she can refer to RSI through Josefina. Buli-e would then be paid for each referral. When Buli-e asked Josefina if the latter was authorized or had any license to recruit for overseas placement, Josefina answered in the affirmative. [37] Thereafter, Buli-e started recruiting job applicants for Taiwan, Singapore and Korea at her house in No. 63 Sanitary Camp, Baguio City. Complainants sought her of their own

accord and Buli-e informed them of the requirements for job application which consisted of submission of bio-data, passport, NBI clearance and placement fee of P40,000 of whichP15,000 must be paid in advance upon instructions of Josefina. Josefina allegedly instructed Buli-e to accompany complainants to Sts. Peter and Paul Medical Clinic in Ermita, Manila for medical check-up.[38] Buli-e was likewise instructed by Josefina to accompany some of the complainants in securing their NBI clearance and to receive whatever documents complainants will be submitting including the P15,000 advance payment, all of which should be submitted to Josefina. Buli-e said that she submitted the documents and the payments either to Jose Alolino or to Josefina. [39] She clarified that she did not have a hand in securing the passports of complainants[40] and received instructions from Josefina only when she communicated with Josefina through the telephone or went to Manila. She averred that she and several members of her family also tried to apply for overseas work with Josefina and paid the latter P100,000. [41] Buli-e presented Mrs. Nonette Legaspi-Villanueva, Unit Coordinator of POEA-CAR, to testify that RSI was a licensed employment agency and that Josefina was a licensed recruiter at the time that Buli-e had dealings with her co-appellant. Mrs. Villanueva testified that she has been with the POEA since 1985. Part of her functions included administrative and technical supervision of the staff regarding employment, facilitation, licensing, investigation and monitoring of the provincial recruitment authority as well as issuance of authorization to personnel to conduct inspection of licensed agencies in the City of Baguio. [42] Mrs.Villanueva said that, as per the certification of the Chief of the Licensing Branch of the POEA, RSI was a private employment agency with a license which expired on July 14, 1992. Josefina Alolino was included in the list of the personnel submitted by the agency in July 1990 as Marketing Consultant.[43] Mrs. Villanueva, however, clarified that licenses or permits to recruit workers are territorial in nature so that an agency licensed in Manila can only engage in recruitment activities within the place specified in the license although the applicants may be nonresidents of Metro Manila. She further testified that she cannot remember if Buli-e was given any authority to recruit in Baguio City. [44] Josefina, on the other hand, testified that on September 16, 1987, she was appointed as one of the four Marketing Directors of RSI which was located in 408 Jovan Condominium, Shaw Boulevard, Mandaluyong, Metro Manila. RSI, represented by Rodolfo S. Ibuna as proprietor, was a private employment agency with a license which expired on July 14, 1992. As Overseas Marketing Director of RSI, Josefina was tasked to represent the agency in negotiating with employers in Taiwan, Malaysia, United States and Singapore [45] for said employers to avail of the services of RSI in recruiting, hiring, processing and deploying Filipino contract workers. She was also authorized to solicit applicants for overseas placement through advertisements, referrals, walk-ins, etc., and to undertake screening, evaluation and final selection of applicants. As per agreement with RSI, Josefina was entitled to a certain share for each successful negotiation with a foreign employer. [46] Josefina denied that Buli-e was her agent and insisted that she never gave Buli-e authority to recruit for RSI. On the contrary, Buli-e allegedly informed Josefina that she was an agent of Mrs. Fe Go, another marketing Director of RSI. Sometime in 1991, Mrs. Go referred to Josefina a certain Prescilla Laoayan, who wanted to apply as a domestic helper in Taiwan. Upon being told that she could not be deployed unless she would give a downpayment of P15,000 for the placement fee, Prescilla informed Josefina that she already

gaveP15,000 to an agent whom she identified to be Buli-e. Josefina then wrote a note for Buli-e informing her that there was a problem regarding the processing of Prescillas application. Prescilla delivered the note to Buli-e who in turn went to see Josefina at her house in No. 11 Concorde Street, Airmans Village, Las Pias, Metro Manila. Josefina said that she and Buli-e merely talked about Prescillas application and that was the first time that Josefina met and talked with Buli-e although she had already seen her before in the office of Mrs. Fe Go.[47] Josefina testified that herein complainants were originally referred by Buli-e to Mrs. Fe Go who, in turn, referred them to her. Josefina said that she accepted referrals from Buli-e even though the latter was not her agent nor connected with RSI because their agency accepts referrals from everyone. In 1992, Buli-e, claiming that complainants authorized and designated her to act as their spokesperson, went to the house of Josefina several times to follow up the progress of their applications.[48] Josefina denied having given Buli-e instructions to accompany complainants to Saints Peter and Paul Medical Clinic in Ermita, Manila. She also denied having an understanding with Buli-e to receive payments from each of complainants and to bring them to her house in Las Pias, Metro Manila.[49] Josefina explained that the deployment of complainants was delayed because the Taiwanese government changed its previous policy of allowing foreign employment agencies like RSI to negotiate directly with prospective employers in Taiwan. Foreign employment agencies were instead allowed to negotiate only with local employment agencies in Taiwan, which, in turn, were responsible for negotiating with the Taiwanese employers. The change in the policy caused delay in the deployment of complainants since the local employment agencies in Taiwan demanded additional requirements such as additional fees. Josefina said she informed complainants of the delay and the reason for it but complainants could not wait to be deployed and, instead, demanded the refund of their payments.[50] On March 2, 1993, Josefina allegedly gave Buli-e P75,000 with the instruction that she was to give complainant Lampoyas P5,000 as refund, and P10,000 each to complainants Macli-ing, Estay, Fias-eo, Mangili, Agapito, and the Oratil brothers. Upon having been approached by complainants for the refund of their money, Josefina informed them that she already gave their refunds through Buli-e. Complainants, however, claimed that they did not receive their refunds from Buli-e. When complainants could not wait for the refund of their payments and failed to see Josefina who was always out of the country due to her work, they filed the present cases.[51] Emelita Racelis testified that she was an employee of RSI from 1989 to 1992 and was one of the two persons assigned to Josefina. [52] Ms. Racelis said that Buli-e frequently went to the RSI, bringing applicants with her three times a month. Among the applicants whom Buli-e referred to RSI through one of the marketing directors, Mrs. Fe Go, was a certain Prescilla Laoayan. Racelis said that Laoayan was endorsed by Mrs. Go to Josefina because it is the practice that when the applicant of one of the marketing directors cannot be deployed, the applicant will be endorsed to another marketing director with a job opening. Josefina, however, had trouble deploying Ms. Laoayan whose placement fee had not been forwarded by Buli-e to RSI.[53]

On July 4, 1995, the trial court rendered a decision, the dispositive portion of which reads, as follows: WHEREFORE, judgment is rendered as follows: 1. In Criminal Case No. 11122-R, the Court finds the accused Alona Buli-e and Josefina (Josie) Alolino guilty beyond reasonable doubt, by direct participation and in conspiracy with each other, of the crime of illegal recruitment in a large scale as defined and penalized under Article 38(b) in relation to Article 39 of PD 442 as amended by PD 2018 and sentences each of them to life imprisonment and to pay a fine of P100,000.00 each, and to pay the costs. In Criminal case No. 11123-R to 11130-R (8 counts), the court finds the accused Alona Buli-e and Josefina (Josie) Alolino guilty beyond reasonable doubt by direct participation and in conspiracy with each other of the crime of Estafa as charged in the Informations in the aforesaid 8 cases as defined and penalized under Article 315 first paragraph in relation to No. 2 (a) of the same article and sentences each of them, applying the indeterminate sentence law, to an imprisonment ranging from six (6) months and one (1) day of prision correccional as minimum to six (6) years, eight (8) months and twenty (20) days of prision mayor as maximum in each of the aforesaid 8 cases; to indemnify jointly and severally the offended parties Constancio Macli-ing, Jessica Estay, Sidolia Fias-eo, John Mangili, Sabado Agapito, Joseph Oratil and Joel Oratil the sum of P15,000.00 each and Nieva Lampoyas the sum of P14,000.00 as actual damages without subsidiary imprisonment in case of insolvency and to pay the costs. The accused Alona Buli-e and Josefina (Josie) Alolino being detention prisoners are entitled to be credited 4/5 of their preventive imprisonment in the service of their sentence in accordance with Article 29 of the Revised Penal Code. SO ORDERED.[54] In rendering the decision, the trial court ruled that by their acts, Buli-e and Josefina, conspired and confederated with one another in the illegal recruitment of complainants for overseas employment. Buli-e performed the recruitment activities in Baguio and Josefina, in Manila. The trial court specifically noted Buli-es acts of accompanying the complainants to Manila for their medical examinations, securing complainants NBI clearances and passports as well as receiving complainants downpayments for the purported placement fee as an indication that she directly participated in the recruitment of all complainants. The trial court observed that Buli-e practically confessed

her acts of recruitment in open court and justified the same by claiming that she was just acting as an agent of Josefina or was authorized to act in behalf of the latter. As regards Josefina, the trial court held that she directly participated in the recruitment of complainants even if she did not personally go to Baguio City since she received the applications and other requirements such as NBI clearances, passports, bio-data as well as the advanced payments of complainants from Buli-e. Either she or her husband Jose, or both of them, entertained complainants who were brought by Buli-e to their home at No. 11 Concorde Street, Airmans Village, Las Pias, Metro Manila. The spouses repeatedly promised to work or make arrangements for complainants deployment abroad. The trial court ruled that the authority given to Josefina as Overseas Marketing Director of RSI, a duly licensed employment agency, was confined to negotiating with foreign employers in Taiwan and she was not supposed to recruit overseas Filipino workers. The court stressed that assuming Josefina was authorized to recruit in Manila, she had no authority to do so in Baguio City. Citing Article 29 of the Labor Code which states that no license or authority shall be used directly or indirectly by any person other than the one in whose favor it was issued or at any place other than that stated in the license or authority, nor may such license or authority be transferred or conveyed to any other person or entity, the trial court ruled that appellants could not use the RSI license in Manila to recruit overseas contract workers in Baguio City. The trial court further noted that the license of RSI employment office was already suspended on June 8, 1992 and expired on July 14, 1992. Consequently, the authority given by RSI to Josefina was likewise suspended on June 8, 1992 and expired on July 14, 1992. Finally, the trial court said that Josefinas act of returning the advanced payments of some of complainants would not exculpate her and only proved that she had in fact received money from complainants who were made to believe that they would be deployed abroad at the soonest possible time. With regard to the eight charges of estafa filed against appellants, the trial court convicted them on the ground that all the elements of estafa were present under each of the eight charges filed. The trial court held that appellants through false pretenses and fraudulent acts represented to complainants that they had the power, authority and capacity to deploy workers abroad for a fee of P40,000, of which P15,000 should be paid as advance payment. The false pretenses and fraudulent acts were executed prior to or simultaneous with appellants taking the sum of P15,000 as advance payment from each of private complainants[55] which were received by Buli-e in Baguio City and turned over by her to Josefina in Manila. Complainants relied on the pretenses and misrepresentations of appellants and parted with substantial sums of money as advance payments of their placement fees. As a result of the false pretenses and misrepresentations, complainants were damaged and prejudiced to the extent of the sums they had given as downpayment since appellants failed to send them abroad as promised. In her appeal before us, appellant Buli-e contends that the trial court erred:

2.

I.

IN FAILING TO APPRECIATE THE DEFENSE OF THE CO-ACCUSED ALONA BULI-E THAT SHE MERELY REFERRED THE PRIVATE OFFENDED PARTIES TO CO-ACCUSED SPOUSES JOSE AND JOSEFINA ALOLINO, WHOM SHE HONESTLY BELIEVED TO BE BONA FIDE OVERSEAS JOB RECRUITERS; IN HOLDING THAT THERE WAS CONSPIRACY BETWEEN HEREIN APPELLANT BULI-E AND SPOUSES ALOLINO IN THE COMMISSION OF THE CRIMES OF LARGE SCALE ILLEGAL RECRUITMENT AND ESTAFA; AND HOLDING CO-ACCUSED ALONA BULI-E LIABLE FOR ESTAFA WHEN THERE WAS NO SHOWING THAT SAID ACCUSED BENEFITED FROM THE ALLEGED MISREPRESENTATION.

with respect to the securing of a license or an authority to recruit and deploy workers, either locally or overseas; and (3) the accused commits the unlawful acts against three or more persons, individually or as a group.[56] When illegal recruitment is committed in large scale or when it is committed by a syndicate, i.e., if it is carried out by a group of three or more persons conspiring and/or confederating with one another, it is considered as an offense involving economic sabotage. The factual backdrop shows that appellants engaged in recruitment activities involving eight persons. The recruitment activities were made by appellants without having the license or authority to do so as evidenced by the certification issued by Legal Officer of the POEA Regional Extension Unit, Cordillera Administrative Region, which stated that Alona Buli-e, Hilario Antonio,[57] Josie Alolino and Jose Alolino were not licensed nor authorized to recruit workers for overseas employment in the City of Baguio or in any part of the region.[58] Appellant Buli-e herself does not deny that she had no license or authority to recruit workers for overseas employment. She, however, insists that she had never directly participated in recruiting complainants since it was in fact complainants who sought her help in applying for overseas employment. Buli-e explained that she merely referred complainants to the spouses Alolino whom she honestly believed to be bona fide overseas job recruiters and, since she, herself, had intentions of applying for overseas work, she tagged along with complainants to Manila to see the spouses Alolino. Inasmuch as she and complainants were all from Baguio City, complainants allegedly designated her to conduct all negotiations and follow up of their applications with the spouses. Buli-es claim deserves scant consideration. It is true that Buli-e did not actively seek complainants to recruit them for overseas employment. It was complainants who sought her out. Nevertheless, when complainants approached her, Buli-e gave complainants the impression that she had the ability to send workers abroad by saying that although she did not have a license of her own to recruit, her boss, who was a licensed recruiter, was already in the process of securing her a license. [59] She not only informed complainants of the requirements in applying for overseas employment and even accompanied them to Manila to procure the necessary documents such as passport, medical and NBI clearances. [60] It was she who brought them to the house of the spouses Alolino and it was also she who received from complainants advanced payments for placement fee which she handed over to the spouses. Her claim that she and her relatives were also victims of illegal recruitment by the spouses Alolino is not substantiated. We also find no reason to disturb the findings of the trial court that Josefina Alolino conspired and confederated with Buli-e in recruiting applicants for overseas employment from Baguio City although neither she nor Buli-e had license or authority to do so. Her claim that she did not have a direct participation in the recruitment in Baguio City and that she merely assisted the complainants by referring them to RSI to facilitate their papers does not merit credence. There is no showing that complainants ever set foot in the RSI office. They were always brought by Buli-e to the house of the spouses Alolino in Las Pias after their medical check up. Complainants, who were with other applicants, were entertained and generously fed breakfast or dinner by one or both of the spouses who assured them that they would be able to fly to Taiwan in just a matter of months. [61] Although Josefina alleged that the documents and payments were handed by Buli-e to the RSI office, Josefina could show no proof to

II.

III.

Appellant Josefina, on the other hand, presents the following assignments of error: I. THE COURT A QUO ERRED IN FINDING JOSEFINA ALOLINO GUILTY BEYOND REASONABLE DOUBT BY DIRECT PARTICIPATION AND IN CONSPIRACY WITH CO-ACCUSED ALONA BULI-E OF THE CRIME OF ILLEGAL RECRUITMENT IN LARGE SCALE AS DEFINED AND PENALIZED UNDER ARTICLE 38[b] IN RELATION TO ARTICLE 39 OF P.D. 442 AS AMENDED BY P.D. 2018 AND IN SENTENCING EACH OF THEM TO LIFE IMPRISONMENT AND TO PAY A FINE OF P100,000. THE COURT A QUO ERRED IN FINDING THE ACCUSED JOSEFINA ALOLINO GUILTY BEYOND REASONABLE DOUBT BY DIRECT PARTICIPATION AND IN CONSPIRACY WITH CO-ACCUSED ALONA BULI-E OF THE CRIME OF ESTAFA AS CHARGED IN THE INFORMATION IN THE AFORESAID 8 CASES AS DEFINED AND PENALIZED UNDER ARTICLE 315 FIRST PARAGRAPH IN RELATION TO NO. 2[A] OF THE SAME ARTICLE.

II.

We shall discuss the interrelated issues together. Under Article 13(b) of the Labor Code, recruitment and placement refer to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and include referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not; provided that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment or placement. The essential elements of the crime of illegal recruitment in large scale are (1) the accused engages in acts of recruitment and placement of workers defined under Article 13(b) or in any prohibited activities under Article 34 of the Labor Code; (2) the accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly

substantiate her claim. It is significant to note that after the informations for illegal recruitment and eight counts of estafa were already filed in court, some of the complainants were given a refund of their advances for the placement fees by Josefina herself, through counsel, and not by RSI. Josefinas acts clearly show that she and Buli-e acted in concert towards the accomplishment of a common felonious purpose which was to recruit workers for overseas employment even though they had no license to do so. Settled is the rule that if it is proved that two or more persons, aimed, by their acts, at the accomplishment of the same unlawful object, each doing a part so that their acts, although apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred even though no actual meeting between or among them to coordinate ways and means is proved. [62] Josefina, however, maintains that as Overseas Marketing Director for RSI, she was authorized to solicit applicants for overseas placement through advertisements, referrals, walk-ins, etc. and to undertake screening, evaluation and final selection of applicants. Apart from her bare testimony, there is nothing on record to corroborate Josefinas claim that as Marketing Director she was authorized to solicit applicants for overseas placement through advertisements, referrals, walk-ins, etc. Josefina did not bother to formally offer as evidence the document allegedly supporting her claim that part of her duties as Marketing Director included recruitment of overseas contract workers. The document not having been formally offered in court cannot be considered, pursuant to Section 34, Rule 132 of the Rules of Court. Moreover, the Licensing Branch of the POEA confirmed that the license of RSI had already been suspended on June 8, 1992 and expired on July 14, 1992. [63] Consequently, even if Josefina was licensed to recruit workers for overseas employment, her authority to do so ceased when the license of her agency, RSI, was suspended and when it eventually expired. Josefina, however, despite the suspension and expiration of the RSI license, continued to engage in recruitment activities for overseas employment. Except for Lampoyas who met Jose Alolino at the latters house in March 1992, and Mangili and Joseph Oratil who met Jose Alolino in May 1992, complainants were entertained at the house of the Alolinos after the license of RSI had already been suspended. Lampoyas, Macli-ing and Mangili completed the P15,000 downpayment of the placement fee after the license of RSI had already been suspended. The rest of complainants gave payments for the placement fee after the license of RSI had already expired. Furthermore, Josefinas alleged authority to recruit applicants for overseas employment as Marketing Director of RSI was only confined to Metro Manila. Article 29 of the Labor Code provides: Art. 29. Non-transferability of license or authority No license or authority shall be used directly or indirectly by any person other than the one in whose favor it was issued or at any place other than that stated in the license or authority, nor may such license or authority be transferred, conveyed or assigned to any other person or entity. Any transfer of business address, appointment or designation of any agent or representative including the

establishment of additional offices anywhere shall be subject to the prior approval of the Secretary of Labor. We are not persuaded by Josefinas claim that no recruitment activity was being done outside of the territorial permit of RSI and it was only incidental that complainants who were referred to her by Buli-e were residents of Baguio City. As earlier discussed, there is no indication that complainants ever set foot in the RSI office. They were always brought by Bulie to Las Pias, Metro Manila where they were entertained by one or both of the spouses Alolino who repeatedly assured them that they would be able to fly to Taiwan in a matter of months. Josefina, who claims to have authority to recruit applicants for overseas employment in behalf of RSI, should have known that licensed agencies are prohibited from conducting any provincial recruitment, job fairs or recruitment activities of any form outside of the address stated in the license, acknowledged branch or extension office, without securing prior authority from the POEA.[64] Pursuant to the POEA rules and regulations, Josefina could recruit applicants for overseas employment and process their applications only at the RSI office in Mandaluyong, Metro Manila since there was no showing that RSI had an acknowledged branch or extension office in Baguio City or that the prior approval of the POEA for provincial recruitment or recruitment activities outside the RSI office was obtained. Finally, the trial court did not err in finding appellants guilty of eight (8) counts of estafa. It is settled that a person convicted of illegal recruitment under the Labor Code can also be convicted of violation of the Revised Penal Code provisions on estafa provided that the elements of the crime are present.[65] The elements for estafa are: (a) that the accused defrauded another by abuse of confidence or by means of deceit, and (b) that damage or prejudice capable of pecuniary estimation is caused to the offended party or third person. [66] Appellants deceived complainants into believing that they had the authority and capability to send them to Taiwan for employment. By reason or on the strength of such assurance, complainants parted with their money in payment of the placement fees. Since the representations of appellants proved to be false, paragraph 2(a), Article 315 of the Revised Penal Code is applicable. Buli-es claim that she did not benefit from the money collected from complainants since she gave the payments to Josefina is of no moment. It was clearly established that she acted in connivance with Josefina in defrauding complainants. As regards Josefina, the fact that she returned the payment of some of the complainants will not exculpate her from criminal liability. Criminal liability for estafa is not affected by compromise or novation, for it is a public offense which must be prosecuted and punished by the government on its own motion even though complete reparation has been made of the damage suffered by the offended party.[67] The actual damages in the sum of P15,000 awarded to each of complainants Fias-eo and Mangili, however, should be deleted inasmuch as said amounts have already been reimbursed by Josefina during her detention. WHEREFORE, the decision of the Regional Trial Court of Baguio City, Branch 15, is AFFIRMED with the MODIFICATION that the actual damages awarded to Fias-eo and Mangili in Criminal Cases Nos. 11125-R and 11126-R are deleted. Costs de oficio. SO ORDERED.

1983, while he was working as a crusher plant operator, private respondent's right ankle was crushed under the machine he was operating. On May 15, 1983, after the expiration of the renewed term, private respondent returned to the Philippines. His ankle was operated on at the Sta. Mesa Heights Medical Center for which he incurred expenses. On September 9, 1983, he returned to Saudi Arabia to resume his work. On May 15,1984, he was repatriated. Upon his return, he had his ankle treated for which he incurred further expenses. On the basis of the provision in the employment contract that the employer shall compensate the employee if he is injured or permanently disabled in the course of employment, private respondent filed a claim, docketed as POEA Case No. 84-09847, against petitioner with respondent Philippine Overseas Employment Administration. On April 10, 1986, the POEA rendered judgment in favor of private respondent, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered in favor of the complainant and against the respondent, ordering the latter to pay to the complainant: 1. SEVEN THOUSAND NINE HUNDRED EIGHTY-FIVE PESOS and 60/100 (P7,985.60), Philippine currency, representing disability benefits; 2. TWENTY-FIVE THOUSAND NINETY-SIX Philippine pesos and 20/100 (29,096.20) representing reimbursement for medical expenses; 3. Ten percent (10%) of the abovementioned amounts as and for attorney's fees. [NLRC Resolution, p. 1; Rollo, p. 16]. On appeal, respondent NLRC affirmed the decision of the POEA in a resolution dated December 12, 1986. Not satisfied with the resolution of the POEA, petitioner instituted the instant special civil action for certiorari, alleging grave abuse of discretion on the part of the NLRC. 1. Petitioner claims that the NLRC gravely abused its discretion when it ruled that petitioner was liable to private respondent for disability benefits since at the time he was injured his original employment contract, which petitioner facilitated, had already expired. Further, petitioner disclaims liability on the ground that its agency agreement with the Saudi principal had already expired when the injury was sustained. There is no merit in petitioner's contention.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 77279 April 15, 1988 MANUELA S. CATAN/M.S. CATAN PLACEMENT AGENCY, petitioners, vs. THE NATIONAL LABOR RELATIONS COMMISSION, PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION and FRANCISCO D. REYES, respondents. Demetria Reyes, Merris & Associates for petitioners. The Solicitor General for public respondents. Bayani G. Diwa for private respondent. CORTES, J.: Petitioner, in this special civil action for certiorari, alleges grave abuse of discretion on the part of the National Labor Relations Commission in an effort to nullify the latters resolution and thus free petitioner from liability for the disability suffered by a Filipino worker it recruited to work in Saudi Arabia. This Court, however, is not persuaded that such an abuse of discretion was committed. This petition must fail. The facts of the case are quite simple. Petitioner, a duly licensed recruitment agency, as agent of Ali and Fahd Shabokshi Group, a Saudi Arabian firm, recruited private respondent to work in Saudi Arabia as a steelman. The term of the contract was for one year, from May 15,1981 to May 14, 1982. However, the contract provided for its automatic renewal: FIFTH: The validity of this Contract is for ONE YEAR commencing from the date the SECOND PARTY assumes hill port. This Contract is renewable automatically if neither of the PARTIES notifies the other PARTY of his wishes to terminate the Contract by at least ONE MONTH prior to the expiration of the contractual period. [Petition, pp. 6-7; Rollo, pp. 7-8]. The contract was automatically renewed when private respondent was not repatriated by his Saudi employer but instead was assigned to work as a crusher plant operator. On March 30,

Private respondents contract of employment can not be said to have expired on May 14, 1982 as it was automatically renewed since no notice of its termination was given by either or both of the parties at least a month before its expiration, as so provided in the contract itself. Therefore, private respondent's injury was sustained during the lifetime of the contract. A private employment agency may be sued jointly and solidarily with its foreign principal for violations of the recruitment agreement and the contracts of employment: Sec. 10. Requirement before recruitment. Before recruiting any worker, the private employment agency shall submit to the Bureau the following documents: (a) A formal appointment or agency contract executed by a foreign-based employer in favor of the license holder to recruit and hire personnel for the former ... xxx xxx xxx 2. Power of the agency to sue and be sued jointly and solidarily with the principal or foreign-based employer for any of the violations of the recruitment agreement and the contracts of employment. [Section 10(a) (2) Rule V, Book I, Rules to Implement the Labor Code]. Thus, in the recent case of Ambraque International Placement & Services v. NLRC [G.R. No. 77970, January 28,1988], the Court ruled that a recruitment agency was solidarily liable for the unpaid salaries of a worker it recruited for employment in Saudi Arabia. Even if indeed petitioner and the Saudi principal had already severed their agency agreement at the time private respondent was injured, petitioner may still be sued for a violation of the employment contract because no notice of the agency agreement's termination was given to the private respondent: Art 1921. If the agency has been entrusted for the purpose of contra with specified persons, its revocation shall not prejudice the latter if they were not given notice thereof. [Civil Code]. In this connection the NLRC elaborated: Suffice it to state that albeit local respondent M. S. Catan Agency was at the time of complainant's accident resulting in his permanent partial disability was (sic) no longer the accredited agent of its foreign principal, foreign respondent herein, yet its responsibility over the proper implementation of complainant's employment/service contract and the welfare of complainant himself in the foreign job site, still existed, the contract of employment in question not having expired yet. This must be so, because the obligations covenanted in the recruitment agreement entered into by and between the local agent and its foreign principal are not coterminus with the

term of such agreement so that if either or both of the parties decide to end the agreement, the responsibilities of such parties towards the contracted employees under the agreement do not at all end, but the same extends up to and until the expiration of the employment contracts of the employees recruited and employed pursuant to the said recruitment agreement. Otherwise, this will render nugatory the very purpose for which the law governing the employment of workers for foreign jobs abroad was enacted. [NLRC Resolution, p. 4; Rollo, p. 18]. (Emphasis supplied). 2. Petitioner contends that even if it is liable for disability benefits, the NLRC gravely abused its discretion when it affirmed the award of medical expenses when the said expenses were the consequence of private respondent's negligence in returning to work in Saudi Arabia when he knew that he was not yet medically fit to do so. Again, there is no merit in this contention. No evidence was introduced to prove that private respondent was not medically fit to work when he returned to Saudi Arabia. Exhibit "B", a certificate issued by Dr. Shafquat Niazi, the camp doctor, on November 1, 1983, merely stated that private respondent was "unable to walk properly, moreover he is still complaining [of] pain during walking and different lower limbs movement" [Annex "B", Reply; Rollo, p. 51]. Nowhere does it say that he was not medically fit to work. Further, since petitioner even assisted private respondent in returning to work in Saudi Arabia by purchasing his ticket for him [Exhibit "E"; Annex "A", Reply to Respondents' Comments], it is as if petitioner had certified his fitness to work. Thus, the NLRC found: Furthermore, it has remained unrefuted by respondent that complainant's subsequent departure or return to Saudi Arabia on September 9, 1983 was with the full knowledge, consent and assistance of the former. As shown in Exhibit "E" of the record, it was respondent who facilitated the travel papers of complainant. [NLRC Resolution, p. 5; Rollo, p. 19]. WHEREFORE, in view of the foregoing, the petition is DISMISSED for lack of merit, with costs against petitioner. SO ORDERED. Fernan, (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

6. That while we were in Rotterdam, on or about July 9, 1975, representative of the ITF boarded our vessel and talked with the Ship's Captain; Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-50734-37 February 20, 1981 WALLEM PHILIPPINES SHIPPING, INC., petitioner, vs. THE HON. MINISTER OF LABOR, in his capacity as Chairman of the National Seamen Board Proper, JAIME CAUNCA, ANTONIO CABRERA, EFREN GARCIA, JOSE OJEDA and RODOLFO PAGWAGAN,respondents. DE CASTRO, J.: Petition for certiorari with preliminary injunction with prayer that the Orders dated December 19, 1977 and April 3, 1979 of the National Seamen Board (NSB) be declared null and void. Private respondents were hired by petitioner sometime in May 1975 to work as seamen for a period of ten months on board the M/V Woermann Sanaga, a Dutch vessel owned and operated by petitioner's European principals. While their employment contracts were still in force, private respondents were dismissed by their employer, petitioner herein, and were discharged from the ship on charges that they instigated the International Transport Federation (ITF) to demand the application of worldwide ITF seamen's rates to their crew. Private respondents were repatriated to the Philippines on October 27, 1975 and upon their arrival in Manila, they instituted a complaint against petitioner for illegal dismissal and recovery of wages and other benefits corresponding to the five months' unexpired period of their shipboard employment contract. In support of their complaint, private respondents submitted a Joint Affidavit 1 stating the circumstances surrounding their employment and subsequent repatriation to the Philippines, material averments of which are herein below reproduced: JOINTAFFIDAVIT xxx xxx xxx 5. That aside from our basic monthly salary we are entitled to two (2) months vacation leave, daily subsistence allowance of US$8.14 each, daily food allowance of US$2.50. as well as overtime pay which we failed to receive because our Shipboard Employment Contract was illegally terminated; 8. That at around 7:00 in the evening all the crew members were called in the Mess Hall where the ITF representatives informed us that they have just entered into a "Special Agreement" with the Wallem Shipping Management, Ltd., represented by Mr. M.S.K. Ogle, Administrative Manager, wherein new salary rates was agreed upon and that we were going to be paid our salary differentials in view of the new rates; 9. That in the same meeting, Mr. M.S.K. Ogle also spoke where he told that a Special Agreement has been signed and that we will be receiving new pay rate and enjoined us to work hard and be good boys; 10. That the same evening we received our salary differentials based on the new rates negotiated for us by the ITF. 11. That while we were in the Port Dubai, Saudi Arabia, we were not receiving our pay, since the Ship's Captain refused to implement the world-wide rates and insisted on paying us the Far East Rate; 12. That the Port Dubai is one that is within the Worldwide rates sphere. 13. That on October 22, 1975, Mr. Greg Nacional Operation Manager of respondent corporation, arrived in Dubai Saudi Arabia and boarded our ship; 14. That on October 23, 1975, Mr. Nacional called all the crew members, including us to a meeting at the Mess Hall and there he explained that the Company cannot accept the worldwide rate. The Special Agreement signed by Mr. Ogle in behalf of the Company is nothing but a scrap of paper. Mr. Jaime Caunca then asked Mr. Nacional, in view of what he was saying, whether the Company will honor the Special Agreement and Mr. Nacional answered "Yes". That we must accept the Far East Rates which was put to a vote. Only two voted for accepting the Far East Rates; 15. That immediately thereafter Mr. Nacional left us; 16. That same evening, Mr. Nacional returned and threatened that he has received a cable from the Home Office that if we do not accept the Far East Rate, our services will be terminated and there will be a change in crew; 7. That the following day, the representatives of the ITF returned and was followed by Mr. M.S.K. Ogle who is the Company's Administrative Manager, again went to see the Captain;

17. That when Mr. Nacional left, we talked amongst ourselves and decided to accept the Far East Rates; 18. That in the meeting that evening because of the threat we informed Mr. Nacional we were accepting the Far East Rate and he made us sign a document to that effect; 19. That we the complainants with the exception of Leopoldo Mamaril and Efren Garcia, were not able to sign as we were at the time on work schedules, and Mr. Nacional did not bother anymore if we signed or not; 20. That after the meeting Mr. Nacional cabled the Home Office, informing them that we the complainants with the exception of Messrs. Mamaril and Garcia were not accepting the Far East Rates; 21. That in the meeting of October 25, 1975, Mr. Nacional signed a document whereby he promised to give no priority of first preference in "boarding a vessel and that we are not blacklisted"; 22. That in spite of our having accepted the Far East Rate, our services were terminated and advised us that there was a change in crew; 23. That on October 27, 1975, which was our scheduled flight home, nobody attended us, not even our clearance for our group travel and consequently we were not able to board the plane, forcing us to sleep on the floor at the airport in the evening of October 27, 1975; 24. That the following day we went back to the hotel in Dubai which was a two hours ride from the airport, where we were to await another flight for home via Air France; 25. That we were finally able to leave for home on November 2, 1975 arriving here on the 3rd of November; 26. That we paid for all excess baggages; 27. That Mr. Nacional left us stranded, since he went ahead on October 27, 1975; 28. That immediately upon arriving in Manila, we went to respondent Company and saw Mr. Nacional, who informed us that we were not blacklisted, however, Mr. Mckenzie, Administrative Manager did inform us that we were all blacklisted; 29. That we were asking from the respondent Company our leave pay, which they refused to give, if we did not agree to a US$100.00 deduction;

30. That with the exception of Messrs. Jaime Caunca Amado Manansala and Antonio Cabrera, we received our leave pay with the US$100.00 deduction; 31. That in view of the written promise of Mr. Nacional in Dubai last October 23, 1975 to give us priority and preference in boarding a vessel and that we were not blacklisted we have on several occasions approached him regarding his promise, which up to the present he has refused to honor. xxx xxx xxx Answering the complaint, petitioner countered that when the vessel was in London, private respondents together with the other crew insisted on worldwide ITF rate as per special agreement; that said employees threatened the ship authorities that unless they agreed to the increased wages the vessel would not be able to leave port or would have been picketed and/or boycotted and declared a hot ship by the ITF; that the Master of the ship was left with no alternative but to agree; that upon the vessel's arrival at the Asian port of Dubai on October 22, 1975, a representative of petitioner went on board the ship and requested the crew together with private respondents to desist from insisting worldwide ITF rate and instead accept the Far East rate; that said respondents refused to accept Far East ITF rates while the rest of the Filipino crew members accepted the Far East rates; that private respondents were replaced at the expense of petitioner and it was prayed that respondents be required to comply with their obligations under the contract by requiring them to pay their repatriation expenses and all other incidental expenses incurred by the master and crew of the vessel. After the hearing on the merits, the hearing Officer of the Secretariat rendered a decision 2 on March 14, 1977 finding private respondents to have violated their contract of employment when they accepted salary rates different from their contract verified and approved by the National Seamen Board. As to the issue raised by private respondents that the original contract has been novated, it was held that: xxx xxx xxx For novation to be a valid defense, it is a legal requirement that all parties to the contract should give their consent. In the instant case only the complainants and respondents gave their consent. The National Seamen Board had no participation in the alleged novation of the previously approved employment contract. It would have been different if the consent of the National Seamen Board was first secured before the alleged novation of the approved contract was undertaken, hence, the defense of novation is not in order. xxx xxx xxx The Hearing Officer likewise rules that petitioner violated the contract when its representative signed the Special Agreement and he signed the same at his own risk and must bear the consequence of such act, and since both parties are in paridelicto, complaint and

counterclaim were dismissed for lack of merit but petitioner was ordered to pay respondents Caunca and Cabrera their respective leave pay for the period that they have served M/V Woermann Sanaga plus attorney's fees. Private respondents filed a motion for reconsideration with the Board which modified the decision of the Secretariat in an Order 3 of December 19, 1977 and ruled that petitioner is liable for breach of contract when it ordered the dismissal of private respondents and their subsequent repatriation before the expiration of their respective employment contracts. The Chairman of the Board stressed that "where the contract is for a definite period, the captain and the crew members may not be discharged until after the contract shall have been performed" citing the case of Madrigal Shipping Co., Inc. vs. Ogilvie, et al. (104 Phil. 748). He directed petitioner to pay private respondents the unexpired portion of their contracts and their leave pay, less the amount they received as differentials by virtue of the special agreements entered in Rotterdam, and ten percent of the total amounts recovered as attorney's fees. Petitioner sought clarification and reconsideration of the said order and asked for a confrontation with private respondents to determine the specific adjudications to be made. A series of conferences were conducted by the Board. It was claimed by petitioner that it did not have in its possession the records necessary to determine the exact amount of the judgment since the records were in the sole custody of the captain of the ship and demanded that private respondents produce the needed records. On this score, counsel for respondents manifested that to require the master of the ship to produce the records would result to undue delay in the disposition of the case to the detriment of his clients, some of whom are still unemployed. Under the circumstances, the Board was left with no alternative but to issue an Order dated April 3, 1979 4 fixing the amount due private respondents at their three (3) months' salary equivalent without qualifications or deduction. Hence,the instant petition before Us alleging grave abuse of discretion on the part of the respondent official as Chairman of the Board, in issuing said order which allegedly nullified the findings of the Secretariat and premised adjudication on imaginary conditions which were never taken up with full evidence in the course of hearing on the merits. The whole controversy is centered around the liability of petitioner when it ordered the dismissal of herein private respondents before the expiration of their respective employment contracts. In its Order of December 19, 1977 5 the Board, thru its Chairman, Minister Blas F. Ople, held that there is no showing that the seamen conspired with the ITF in coercing the ship authorities to grant salary increases, and the Special Agreement was signed only by petitioner and the ITF without any participation from the respondents who, accordingly, may not be charged as they were, by the Secretariat, with violation of their employment contract. The Board likewise stressed that the crew members may not be discharged until after the expiration of the contract which is for a definite period, and where the crew members are discharged without just cause before the contract shall have been performed, they shall be

entitled to collect from the owner or agent of the vessel their unpaid salaries for the period they were engaged to render the services, applying the case of Madrigal Shipping Co., Inc. vs. Jesus Ogilivie et al. 6 The findings and conclusion of the Board should be sustained. As already intimated above, there is no logic in the statement made by the Secretariat's Hearing Officer that the private respondents are liable for breach of their employment contracts for accepting salaries higher than their contracted rates. Said respondents are not signatories to the Special Agreement, nor was there any showing that they instigated the execution thereof. Respondents should not be blamed for accepting higher salaries since it is but human for them to grab every opportunity which would improve their working conditions and earning capacity. It is a basic right of all workingmen to seek greater benefits not only for themselves but for their families as well, and this can be achieved through collective bargaining or with the assistance of trade unions. The Constitution itself guarantees the promotion of social welfare and protection to labor. It is therefore the Hearing Officer that gravely erred in disallowing the payment of the unexpired portion of the seamen's respective contracts of employment. Petitioner claims that the dismissal of private respondents was justified because the latter threatened the ship authorities in acceeding to their demands, and this constitutes serious misconduct as contemplated by the Labor Code. This contention is not well-taken. The records fail to establish clearly the commission of any threat. But even if there had been such a threat, respondents' behavior should not be censured because it is but natural for them to employ some means of pressing their demands for petitioner, who refused to abide with the terms of the Special Agreement, to honor and respect the same. They were only acting in the exercise of their rights, and to deprive them of their freedom of expression is contrary to law and public policy. There is no serious misconduct to speak of in the case at bar which would justify respondents' dismissal just because of their firmness in their demand for the fulfillment by petitioner of its obligation it entered into without any coercion, specially on the part of private respondents. On the other hand, it is petitioner who is guilty of breach of contract when they dismissed the respondents without just cause and prior to the expiration of the employment contracts. As the records clearly show, petitioner voluntarily entered into the Special Agreement with ITF and by virtue thereof the crew men were actually given their salary differentials in view of the new rates. It cannot be said that it was because of respondents' fault that petitioner made a sudden turn-about and refused to honor the special agreement. In brief, We declare petitioner guilty of breach of contract and should therefore be made to comply with the directives contained in the disputed Orders of December 19, 1977 and April 3, 1979. WHEREFORE, premises considered, the decision dated March 14, 1977 of the Hearing Officer is SET ASIDE and the Orders dated December 19, 1977 and April 3, 1979 of the National Seamen Board are AFFIRMED in toto. This decision is immediately executory. Without costs.

SO ORDERED. Makasiar, Fernandez, Guerrero and Melencio-Herrera, JJ., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 178127 April 16, 2009

Treatment) Calcium channel block medication. Jao Ho Lee"2 (Emphasis and underscoring supplied) Subsequently or on April 26, 2000, respondent, by letter of even date addressed to Captain Thomas Cristino, Crewing Manager of petitioner Virjen, wrote, quoted verbatim: "With much regret, I would like to say my sincere sorry for having me decided to quit my job. Poor Health is the main reason and thus affecting the performance of my duty. However too, if somebody is going to disembark this coming May in Singapore may I respectfully request your permission to allow me to join said disembarkation crew. Just in case it is not possible, then I will patiently wait to those are scheduled by early June." As well, it is clear to me that I am responsible for my airfare and to joining crew as my replacement since I have not complied with the terms of the contract. Thank you very much to your kind consideration & understanding & hope this irrevocable resignation be granted on proper time so as to allow me to accommodate the due expenses for repatriation."3 (Emphasis and underscoring supplied) Upon arrival of the vessel in Singapore and prior to his disembarkation, respondent again requested on May 13, 2000 medical treatment for abscess in his left thumb. Dr. Ivan Chan of Gleneagles Maritime Medical Centre who attended to respondent stated in his report: Name/Age: Jesus B. Barraquio/50 Rank/Nationality: CCK/Filipino Agent/Vessel: Heng Fu Kot/Golden Progress Allergy: Nil HISTORY: Painful swelling left thumb for 10 days. History of hypertension for 3 years, on calciblock. Medication finished. Cholesterol normal. xxxx DIAGNOSIS: ABSCESS LEFT THUMB; HYPERTENSION xxxx RECOMMENDATIONS:

VIRGEN SHIPPING CORPORATION, CAPT. RENATO MORENTE & ODYSSEY MARITIME PTE. LTD., NATIONAL LABOR RELATIONS COMMISSION, Petitioners, vs. JESUS B. BARRAQUIO, Respondent. DECISION CARPIO MORALES, J.: Assailed via petition for review on certiorari is the Court of Appeals 1 Decision of November 13, 2006 holding Virjen Shipping Corporation, Capt. Renato Morente and Odyssey Maritime PTE. Ltd. (petitioners) liable to Jesus B. Barraquio (respondent) for payment of sickness allowance equivalent to 120 days, disability benefits, accrued interest, moral damages, exemplary damages and attorneys fees. By a contract forged on February 29, 2000, petitioner Odyssey Maritime, PTE. Ltd., through its local manning agent co-petitioner Virjen Shipping Corporation, hired respondent as chief cook on board the vessel M/T Golden Progress for a period of ten (10) months. Before the contract was executed, respondent was made to undergo the routine PreEmployment Medical Examination (PEME) at S.M. Lazo Medical Clinic, Inc. and was found to be fit to work by the attending physician Dr. Jose Dante V. Jacinto. On March 23, 2000, respondent boarded the above-named vessel and commenced to perform his duty as chief cook. Twenty one (21) days later or on April 13, 2000, while the vessel was docked in Korea, respondent requested medical attention due to chest pains and hypertension and was brought to the Hyundai Surgical Center. The attending physician made no pronouncement as to respondents fitness for work but made the following diagnosis: Impression) (1) Suspected ischemic heart disease (2) Hypertension

DISPOSITION: Fit to sail.4 (Emphasis and underscoring in the original; italics supplied) Respondent was allowed by petitioners to disembark. He arrived in the Philippines on May 15, 2000. On August 2, 2000, respondent signed a Statement of Account acknowledging set-off of his vacation leave pay in the amount of P15,188.75 from the cost of finding respondents replacement and the cost of repatriation in the amount of P38, 373.65. For the balance of P23, 184.90, respondent signed a promissory note in favor of petitioner Virjen. A year later or on August 1, 2001, respondent filed a complaint for non-payment of 120 days sickness allowance under Section 20 (B) paragraph 2 of the Standard Employment Contract for Seafarers5 , disability benefits, legal interest computed from date of formal demand, reimbursement of medical expenses, and damages. In his Complaint, respondent alleged that due to constant verbal abuse from the ship master, Captain Marino Kasala, he suffered dizziness, chest pains, headaches and irregular sleep leading to hypertension; that he was forced to execute the request for disembarkation for fear that his health would worsen; and that medical findings in his PEME that he was fit to sail is binding upon petitioners and proof that his condition developed while on board. Taking a contrary stand, petitioners countered that hypertension cannot develop in a short span of time; and in any event, respondent committed misrepresentation in his PEME as to his health. By Decision of April 1, 2002, Labor Arbiter Renaldo O. Hernandez rendered judgment in favor of respondent, disposing as follows: WHEREFORE, premises considered, judgment is entered finding respondents foreign principal and manning agency and its president/chairman Eng. Emilio A. Santiago and the rest of the corporate officers liable to pay to complainant his money claims as above discussed, thus ORDERING said respondents and officers in solido: 1) to reimburse to complainant his receipted cost of medical expenses incurred to Annex "J-8." Complainants Affidavit dated 01 July 2002) of P1,270.00; 2) to pay complainant his sickness allowance up to maximum equivalent of basic wage x 120 days or US $ 2,320.00 under Sec. 20 (B) in par. 2, Standard Employment Contract for Seafarers; 3) to pay complainant his disability benefits in accordance with the schedule of benefits in Sec. 30 of the Contract with disability rating of Grade 6 pursuant to Schedule of Disability Allowance in Sec. 30-A of the POEA SEC, with impediment percentage of 50% equivalent to US $25,000.00; and finally,

4) to pay complainant moral and exemplary damages in the combined amount of two hundred thousand pesos (P200,000.00) and 10% of the entire award as attorneys fees. SO ORDERED.6 On appeal, the National Labor Relations Commission (NLRC) First Division by Decision of August 30, 2002reversed the ruling of the Labor Arbiter and dismissed the complaint for lack of merit.7 Albeit echoing the same factual background, the NLRC found respondents resignation voluntary, hence, he cannot claim entitlement to the benefits under the Standard Employment Contract of the Philippine Overseas Employment Administration (POEA). Thus, the NLRC First Division declared: The aforequoted handwritten resignation, the terms and conditions of which are very clear and explicit that he is quitting his job and even executed a promissory note to pay the amount of P23,184.90 representing the balance of his repatriation and his replacements expenses. Further, complainant-appellee (respondent) even signed the Statement of Account after he signed-off from the vessel on August 02, 2000. The same shows the balance due Virjen Shipping Corporation which apparently may be construed that complainant-appellee knew from the beginning that he is liable for his and his replacement transportation because he preterminated his employment contract. (Underscoring supplied) On respondents petition for certiorari, the Court of Appeals reversed the NLRC Decision in light of the observation that respondents hypertension probably developed while on board the vessel, viz: Thus, We are constrained to declare compensability primarily because evidence points that petitioners hypertension was probably developed while on board the vessel. After all, strict rules of evidence are not applicable in claims for compensation. In fact, in NFD International Manning Agents, Inc. vs. NLRC, the High Court held that probability and not the ultimate degree of certainty is the test of proof in compensation proceedings. 8(Citations omitted, italics in the original, emphasis and underscoring supplied) The appellate court thus disposed: WHEREFORE, the petition is GRANTED. The assailed NLRC Decision is hereby NULLIFIED and the Labor Arbiter Decision REINSTATED with the MODIFICATION that the name Engr. Emilio Santiago and the rest of the corporate officers are ordered deleted from its dispositive portion. SO ORDERED.9 (Emphasis in the original; underscoring supplied) Hence, the present petition, petitioners positing the following arguments:

1. . That there is no disharmony between the factual findings of the Labor Arbiter and those of the NLRC. The findings of the NLRC are more in accord with the evidence presented in the proceedings. 2. That private respondents resignation letter was voluntary and made upon his own instance, the petitioners (sic) argument of involuntariness has no factual basis and is a mere afterthought. Having resigned from his position, private respondent is not entitled to his monetary claims. 3. Assuming, without admitting, that private respondent was medically repatriated as "poor health" was stated as the reason for his resignation only bolsters the view that private respondent knew of his history of hypertension prior to boarding the MV "Golden Progress" and that he concealed such material information in his preemployment medical examination (PEME for brevity). 4. Private respondents PEME is not binding against the petitioners with respect to the determination of his true state of health and that petitioners willful and fraudulent concealment of his known pre-existing medical condition bars him from receiving disability benefits. (Underscoring supplied) As a general rule, only questions of law may be raised and resolved by the Court as regards petitions brought under Rule 45 of the Rules of Court. The reason being that the Court is not a trier of facts, hence, it is not duty bound to re-examine the evidence on record. Where, as in the present case, the NLRC and the Labor Arbiter arrived at conflicting decisions and the findings of the Labor Arbiter, as partly affirmed by the appellate court, appear to be contrary to the evidence at hand, the Court finds the need to review the records to distill the facts. From a considered review, the Court finds that respondents resignation was voluntary. Resignation is defined as the voluntary act of an employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service and he has no other choice but to disassociate himself from his employment.10 Respondents resignation can be gleaned from the unambiguous terms of his letter to Captain Cristino. As earlier reflected, respondent returned home upon docking in Singapore on May 13, 2000 after he was treated for the abscess in his left thumb and diagnosed with hypertension. His return home is in consonance with his request in his letter of April 26, 2000 to the crewing manager.

Respondents bare claim that he was forced to execute his resignation letter deserves no merit. Bare allegations of threat or force do not constitute substantial evidence to support a finding of forced resignation.11 That such claim was proferred a year later all the more renders his contention bereft of merit. It bears noting that in respondents previous contract with petitioner aboard another accredited vessel, M/T Ocean Blossom, he also requested for early repatriation, citing domestic reasons. Respondent is thus charged with awareness of the consequences of pre-termination, this being his second time to so request. Captain Cristinos alleged statement that respondent had to shoulder the repatriation expenses cannot thus be construed as compulsion. Respondent claims entitlement under Section 20 (B) [2] of the Standard Employment Contract of the POEA, which must be read in conjunction with Section 20 (B) [3], viz: SECTION 20. COMPENSATION AND BENEFITS B. x x x (2) If the injury or illness requires medical and/or dental treatment in a foreign port, the employer shall be liable for the full cost of such medical, serious, dental, surgical and hospital treatment as well as board and lodging until the seafarer is declared fit to work or to be repatriated. However, if after repatriation, the seafarer still requires medical attention arising from said injury or illness, he shall be provided at cost to the employer until such time he is declared fit and the degree of his disability has been established by the company-designated physician. 3. Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has been assessed by the company-designated physician but in no case shall this period exceed one hundred twenty (120) days. For this purpose, the seafarer shall submit himself to a post-employment medical examination by a company-designated physician within three working days upon his return except when he is physically incapacitated to do so, in which case a written notice to the agency within the same period is deemed as compliance. Failure of the seafarer to comply with the mandatory reporting requirement shall result in the forfeiture of his right to claim the above benefits. If the doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed jointly between the Employer and the seafarer. The third doctors decision shall be final and binding on both parties. (Underscoring supplied) If respondent was indeed repatriated for medical reasons, he was, under the above-said provision, required to undergo post-employment medical examination by a company-

designated physician within three working days from arrival. Contending that he complied therewith, he invites attention to the written annotation "Reported To Office May 17/00" on the medical report from Gleneagles Maritime Medical Centre. 1avvphi1 The provision requires respondent to submit himself to a post-medical employment examination by a company designated physician within three working days from arrival or, in respondents case, three working days after May 15, 2000, a Monday, when he arrived by ship or not later than May 18, 2000. Respondent sought examination-treatment on May 17 June 30, 2000 from Dr. Romina Alpasan who appears to be a physician of his choice. 12 He only tried to look for a company-designated physician after treatment by Dr. Alpasan. Clearly, he did not comply with the 3-day requirement to seek the services of a company-designated physician for purposes of post-employment medical examination. Respondent goes on to claim that he underwent treatment for Ischemic heart disease which developed while employed by petitioners. Ischemic heart disease is a condition in which fatty deposits (atheroma) accumulate in the cells lining the wall of the coronary arteries. These fatty deposits build up gradually and irregularly, however, in the large branches of the two main coronary arteries which encircle the heart and are the main source of its blood supply. This process, called atherosclerosis, leads to narrowing or hardening of the blood vessels supplying blood to the heart muscle (the coronary arteries) resulting in ischemia - or the inability to provide adequate oxygen - to heart muscle and this can cause damage to the heart muscle . Complete occlusion of the blood vessel leads to a heart attack. Finally, respondent claims that in light of the opinion of the physician in Korea that he had "suspected ischemic heart," petitioners affirmed his medical repatriation. As reflected in the immediately preceding paragraph, however, ischemic heart disease cannot develop in a short span of time that respondent served as chief cook for petitioners. In fact, as indicated above, the Gleneagles Maritime Medical Centre doctor who treated respondent in May 2000 for abscess in his left hand had noted respondents "[h]istory of hypertension for 3 years." Moreover, the Korean physician did not make any recommendation as to respondents bill of health for petitioners to assume that he was fit for repatriation. IN FINE, respondents actions show that he voluntarily resigned. GUTIERREZ, JR., J.: WHEREFORE, the Court of Appeals Decision of November 13, 2006 is REVERSED and the NLRC Decision of August 30, 2002 is REINSTATED. SO ORDERED. These petitions ask for a re-examination of this Court's precedent setting decision in VirJen Shipping and Marine Services Inc. v. National Labor Relations Commission, et al. (125 SCRA 577 [1983]). On constitutional, statutory, and factual grounds, we find no reason to disturb the doctrine in Vir- Jen Shipping and to turn back the clock of progress for sea-based overseas workers. The experience gained in the past few years shows that, following said doctrine, we should neither deny nor diminish the enjoyment by Filipino seamen of the same rights and freedoms taken for granted by other working-men here and abroad. The cases at bar involve a group of Filipino seamen who were declared by the defunct National Seamen Board (NSB) guilty of breaching their employment contracts with the private Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. L-57999, 58143-53 August 15, 1989 RESURRECCION SUZARA, CESAR DIMAANDAL, ANGELITO MENDOZA, ANTONIO TANEDO, AMORSOLO CABRERA, DOMINADOR SANTOS, ISIDRO BRACIA, RAMON DE BELEN, ERNESTO SABADO, MARTIN MALABANAN, ROMEO HUERTO and VITALIANO PANGUE, petitioners, vs. THE HON. JUDGE ALFREDO L. BENIPAYO and MAGSAYSAY LINES, INC., respondents. G.R. Nos. L-64781-99 August 15, 1989 RESURRECCION SUZARA, CESAR DIMAANDAL, ANGELITO MENDOZA, ANTONIO TANEDO, RAYMUNDO PEREZ, AMORSOLO CABRERA, DOMINADOR SANTOS, ISIDRO BRACIA, CATALINO CASICA, VITALIANO PANGUE, RAMON DE BELEN, EDUARDO PAGTALUNAN, ANTONIO MIRANDA, RAMON UNIANA, ERNESTO SABADO, MARTIN MALABANAN, ROMEO HUERTO and WILFREDO CRISTOBAL, petitioners, vs. THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION, THE NATIONAL SEAMEN BOARD (now the Philippine Overseas Employment Administration), and MAGSAYSAY LINES, INC., respondents. Quasha, Asperilla, Ancheta, Pe;a and Nolasco for petitioners. Samson S. Alcantara for private respondent.

respondent because they demanded, upon the intervention and assistance of a third party, the International Transport Worker's Federation (ITF), the payment of wages over and above their contracted rates without the approval of the NSB. The petitioners were ordered to reimburse the total amount of US$91,348.44 or its equivalent in Philippine Currency representing the said over-payments and to be suspended from the NSB registry for a period of three years. The National Labor Relations Commission (NLRC) affirmed the decision of the NSB. In a corollary development, the private respondent, for failure of the petitioners to return the overpayments made to them upon demand by the former, filed estafa charges against some of the petitioners. The criminal cases were eventually consolidated in the sala of then respondent Judge Alfredo Benipayo. Hence, these consolidated petitions, G.R. No. 64781-99 and G.R. Nos. 57999 and 58143-53, which respectively pray for the nullification of the decisions of the NLRC and the NSB, and the dismissal of the criminal cases against the petitioners. The facts are found in the questioned decision of the NSB in G.R. No. 64781-99. From the records of this case it appears that the facts established and/or admitted by the parties are the following: that on different dates in 1977 and 1978 respondents entered into separate contracts of employment (Exhs. "B" to "B-17", inclusive) with complainant (private respondent) to work aboard vessels owned/operated/manned by the latter for a period of 12 calendar months and with different rating/position, salary, overtime pay and allowance, hereinbelow specified: ...; that aforesaid employment contracts were verified and approved by this Board; that on different dates in April 1978 respondents (petitioners) joined the M/V "GRACE RIVER"; that on or about October 30, 1978 aforesaid vessel, with the respondents on board, arrived at the port of Vancouver, Canada; that at this port respondent received additional wages under rates prescribed by the Intemational Transport Worker's Federation (ITF) in the total amount of US$98,261.70; that the respondents received the amounts appearing opposite their names, to wit: ...; that aforesaid amounts were over and above the rates of pay of respondents as appearing in their employment contracts approved by this Board; that on November 10, 1978, aforesaid vessel, with respondent on board, left Vancouver, Canada for Yokohama, Japan; that on December 14, 1978, while aforesaid vessel, was at Yura, Japan, they were made to disembark. (pp. 64-66, Rollo) Furthermore, according to the petitioners, while the vessel was docked at Nagoya, Japan, a certain Atty. Oscar Torres of the NSB Legal Department boarded the vessel and called a meeting of the seamen including the petitioners, telling them that for their own good and safety they should sign an agreement prepared by him on board the vessel and that if they do, the cases filed against them with NSB on November 17, 1978 would be dismissed. Thus, the petitioners signed the. "Agreement" dated December 5, 1978. (Annex C of Petition) However, when they were later furnished xerox copies of what they had signed, they noticed that the line "which amount(s) was/were received and held by CREWMEMBERS in trust for SHIPOWNERS" was inserted therein, thereby making it appear that the amounts given to the

petitioners representing the increase in their wages based on ITF rates were only received by them in trust for the private respondent. When the vessel reached Manila, the private respondent demanded from the petitioners the "overpayments" made to them in Canada. As the petitioners refused to give back the said amounts, charges were filed against some of them with the NSB and the Professional Regulations Commission. Estafa charges were also filed before different branches of the then Court of First Instance of Manila which, as earlier stated, were subsequently consolidated in the sala of the respondent Judge Alfredo Benipayo and which eventually led to G.R. Nos. 57999 and 58143-53. In G.R. Nos. 64781-99, the petitioners claimed before the NSB that contrary to the private respondent's allegations, they did not commit any illegal act nor stage a strike while they were on board the vessel; that the "Special Agreement" entered into in Vancouver to pay their salary differentials is valid, having been executed after peaceful negotiations. Petitioners further argued that the amounts they received were in accordance with the provision of law, citing among others, Section 18, Rule VI, Book I of the Rules and Regulations Implementing the Labor Code which provides that "the basic minimum salary of seamen shall not be less than the prevailing minimum rates established by the International Labor Organization (ILO) or those prevailing in the country whose flag the employing vessel carries, whichever is higher ..."; and that the "Agreement" executed in Nagoya, Japan had been forced upon them and that intercalations were made to make it appear that they were merely trustees of the amounts they received in Vancouver. On the other hand, the private respondent alleged that the petitioners breached their employment contracts when they, acting in concert and with the active participations of the ITF while the vessel was in Vancouver, staged an illegal strike and by means of threats, coercion and intimidation compelled the owners of the vessel to pay to them various sums totalling US$104,244.35; that the respondent entered into the "Special Agreement" to pay the petitioners' wage differentials because it was under duress as the vessel would not be allowed to leave Vancouver unless the said agreement was signed, and to prevent the shipowner from incurring further delay in the shipment of goods; and that in view of petitioners' breach of contract, the latter's names must be removed from the NSB's Registry and that they should be ordered to return the amounts they received over and above their contracted rates. The respondent NSB ruled that the petitioners were guilty of breach of contract because despite subsisting and valid NSB-approved employment contracts, the petitioners sought the assistance of a third party (ITF) to demand from the private respondent wages in accordance with the ITF rates, which rates are over and above their rates of pay as appearing in their NSB-approved contracts. As bases for this conclusion, the NSB stated: 1) The fact that respondents sought the aid of a third party (ITF) and demanded for wages and overtime pay based on ITF rates is shown in the entries of their respective Pay-Off Clearance Slips which were marked as their Exhs. "1" to "18", and we quote "DEMANDED ITF WAGES, OVERTIME, DIFFERENTIALS APRIL TO

OCTOBER 1978". Respondent Suzara admitted that the entries in his Pay-Off Clearance Slip (Exh. "1") are correct (TSN., p. 16, Dec. 6, 1979).lwph1.t Moreover, it is the policy (reiterated very often) by the ITF that it does not interfere in the affairs of the crewmembers and masters and/or owners of a vessel unless its assistance is sought by the crewmembers themselves. Under this pronounced policy of the ITF, it is reasonable to assume that the representatives of the ITF in Vancouver, Canada assisted and intervened by reason of the assistance sought by the latter. 2) The fact that the ITF assisted and intervened for and in behalf of the respondents in the latter's demand for higher wages could be gleaned from the answer of the respondents when they admitted that the ITF acted in their behalf in the negotiations for increase of wages. Moreover, respondent Cesar Dimaandal admitted that the ITF differential pay was computed by the ITF representative (TSN, p. 7, Dec. 12, 1979) 3) The fact that complainant and the owner/operator of the vessel were compelled to sign the Special Agreement (Exh. "20") and to pay ITF differentials to respondents in order not to delay the departure of the vessel and to prevent further losses is shown in the "Agreement" (Exhs. "R-21") ... (pp. 69-70, Rollo) The NSB further said: While the Board recognizes the rights of the respondents to demand for higher wages, provided the means are peaceful and legal, it could not, however, sanction the same if the means employed are violent and illegal. In the case at bar, the means employed are violent and illegal for in demanding higher wages the respondents sought the aid of a third party and in turn the latter intervened in their behalf and prohibited the vessel from sailing unless the owner and/or operator of the vessel acceded to respondents' demand for higher wages. To avoid suffering further incalculable losses, the owner and/or operator of the vessel had no altemative but to pay respondents' wages in accordance with the ITF scale. The Board condemns the act of a party who enters into a contract and with the use of force/or intimidation causes the other party to modify said contract. If the respondents believe that they have a valid ground to demand from the complainant a revision of the terms of their contracts, the same should have been done in accordance with law and not thru illegal means. (at p. 72, Rollo). Although the respondent NSB found that the petitioners were entitled to the payment of earned wages and overtime pay/allowance from November 1, 1978 to December 14, 1978, it nevertheless ruled that the computation should be based on the rates of pay as appearing in the petitioners' NSB-approved contracts. It ordered that the amounts to which the petitioners are entitled under the said computation should be deducted from the amounts that the petitioners must return to the private respondent.

On appeal, the NLRC affirmed the NSB's findings. Hence, the petition in G.R. Nos. 64781-99. Meanwhile, the petitioners in G.R. Nos. 57999 and 58143-53 moved to quash the criminal cases of estafa filed against them on the ground that the alleged crimes were committed, if at all, in Vancouver, Canada and, therefore, Philippine courts have no jurisdiction. The respondent judge denied the motion. Hence, the second petition. The principal issue in these consolidated petitions is whether or not the petitioners are entitled to the amounts they received from the private respondent representing additional wages as determined in the special agreement. If they are, then the decision of the NLRC and NSB must be reversed. Similarly, the criminal cases of estafa must be dismissed because it follows as a consequence that the amounts received by the petitioners belong to them and not to the private respondent. In arriving at the questioned decision, the NSB ruled that the petitioners are not entitled to the wage differentials as determined by the ITF because the means employed by them in obtaining the same were violent and illegal and because in demanding higher wages the petitioners sought the aid of a third party, which, in turn, intervened in their behalf and prohibited the vessel from sailing unless the owner and/or operator of the vessel acceded to respondents' demand for higher wages. And as proof of this conclusion, the NSB cited the following: (a) the entries in the petitioners Pay-Off Clearance Slip which contained the phrase "DEMANDED ITF WAGES ..."; (b) the alleged policy of the ITF in not interfering with crewmembers of a vessel unless its intervention is sought by the crewmembers themselves; (c), the petitioners' admission that ITF acted in their behalf; and (d) the fact that the private respondent was compelled to sign the special agreement at Vancouver, Canada. There is nothing in the public and private respondents' pleadings, to support the allegations that the petitioners used force and violence to secure the special agreement signed in Vancouver. British Columbia. There was no need for any form of intimidation coming from the Filipino seamen because the Canadian Brotherhood of Railways and Transport Workers (CBRT), a strong Canadian labor union, backed by an international labor federation was actually doing all the influencing not only on the ship-owners and employers but also against third world seamen themselves who, by receiving lower wages and cheaper accommodations, were threatening the employment and livelihood of seamen from developed nations. The bases used by the respondent NSB to support its decision do not prove that the petitioners initiated a conspiracy with the ITF or deliberately sought its assistance in order to receive higher wages. They only prove that when ITF acted in petitioners' behalf for an increase in wages, the latter manifested their support. This would be a logical and natural reaction for any worker in whose benefit the ITF or any other labor group had intervened. The petitioners admit that while they expressed their conformity to and their sentiments for higher wages by means of placards, they, nevertheless, continued working and going about their usual chores. In other words, all they did was to exercise their freedom of speech in a most peaceful way. The ITF people, in turn, did not employ any violent means to force the private respondent to accede to their demands. Instead, they simply applied effective pressure when

they intimated the possibility of interdiction should the shipowner fail to heed the call for an upward adjustment of the rates of the Filipino seamen. Interdiction is nothing more than a refusal of ITF members to render service for the ship, such as to load or unload its cargo, to provision it or to perform such other chores ordinarily incident to the docking of the ship at a certain port. It was the fear of ITF interdiction, not any action taken by the seamen on board the vessel which led the shipowners to yield. The NSB's contusion that it is ITF's policy not to intervene with the plight of crewmembers of a vessel unless its intervention was sought is without basis. This Court is cognizant of the fact that during the period covered by the labor controversies in Wallem Philippines Shipping, Inc. v. Minister of Labor (102 SCRA 835 [1981]; Vir-Jen Shipping and Marine Services, Inc. v. NLRC (supra) and these consolidated petitions, the ITF was militant worldwide especially in Canada, Australia, Scandinavia, and various European countries, interdicting foreign vessels and demanding wage increases for third world seamen. There was no need for Filipino or other seamen to seek ITF intervention. The ITF was waiting on its own volition in all Canadian ports, not particularly for the petitioners' vessel but for all ships similarly situated. As earlier stated, the ITF was not really acting for the petitioners out of pure altruism. The ITF was merely protecting the interests of its own members. The petitioners happened to be pawns in a higher and broader struggle between the ITF on one hand and shipowners and third world seamen, on the other. To subject our seamen to criminal prosecution and punishment for having been caught in such a struggle is out of the question. As stated in Vir-Jen Shipping (supra): The seamen had done no act which under Philippine law or any other civilized law would be termed illegal, oppressive, or malicious. Whatever pressure existed, it was mild compared to accepted and valid modes of labor activity. (at page 591) Given these factual situations, therefore, we cannot affirm the NSB and NLRC's finding that there was violence, physical or otherwise employed by the petitioners in demanding for additional wages. The fact that the petitioners placed placards on the gangway of their ship to show support for ITF's demands for wage differentials for their own benefit and the resulting ITF's threatened interdiction do not constitute violence. The petitioners were exercising their freedom of speech and expressing sentiments in their hearts when they placed the placard We Want ITF Rates." Under the facts and circumstances of these petitions, we see no reason to deprive the seamen of their right to freedom of expression guaranteed by the Philippine Constitution and the fundamental law of Canada where they happened to exercise it. As we have ruled in Wallem Phil. Shipping Inc. v. Minister of Labor, et al. supra: Petitioner claims that the dismissal of private respondents was justified because the latter threatened the ship authorities in acceding to their demands, and this constitutes serious misconduct as contemplated by the Labor Code. This contention is now well-taken. The records fail to establish clearly the commission of any threat. But even if there had been such a threat, respondents' behavior should not be

censured because it is but natural for them to employ some means of pressing their demands for petitioner, who refused to abide with the terms of the Special Agreement, to honor and respect the same. They were only acting in the exercise of their rights, and to deprive them of their freedom of expression is contrary to law and public policy. ... (at page 843) We likewise, find the public respondents' conclusions that the acts of the petitioners in demanding and receiving wages over and above the rates appearing in their NSB-approved contracts is in effect an alteration of their valid and subsisting contracts because the same were not obtained through. mutual consent and without the prior approval of the NSB to be without basis, not only because the private respondent's consent to pay additional wages was not vitiated by any violence or intimidation on the part of the petitioners but because the said NSB-approved form contracts are not unalterable contracts that can have no room for improvement during their effectivity or which ban any amendments during their term. For one thing, the employer can always improve the working conditions without violating any law or stipulation. We stated in the Vir-Jen case (supra) that: The form contracts approved by the National Seamen Board are designed to protect Filipino seamen not foreign shipowners who can take care of themselves. The standard forms embody the basic minimums which must be incorporated as parts of the employment contract. (Section 15, Rule V, Rules and Regulations Implementing the Labor Code).lwph1.t They are not collective bargaining agreements or immutable contracts which the parties cannot improve upon or modify in the course of the agreed period of time. To state, therefore, that the affected seamen cannot petition their employer for higher salaries during the 12 months duration of the contract runs counter to estabhshed principles of labor legislation. The National Labor Relations Commission, as the appellate tribunal from the decisions of the National Seamen Board, correctly ruled that the seamen did not violate their contracts to warrant their dismissal. (at page 589) It is impractical for the NSB to require the petitioners, caught in the middle of a labor struggle between the ITF and owners of ocean going vessels halfway around the world in Vancouver, British Columbia to first secure the approval of the NSB in Manila before signing an agreement which the employer was willing to sign. It is also totally unrealistic to expect the petitioners while in Canada to exhibit the will and strength to oppose the ITF's demand for an increase in their wages, assuming they were so minded. An examination of Annex C of the petition, the agreement signed in Japan by the crewmembers of the M/V Grace River and a certain M. Tabei, representative of the Japanese shipowner lends credence to the petitioners' claim that the clause "which amount(s) was received and held by CREWMEMBERS in trust for SHIPOWNER" was an intercalation added after the execution of the agreement. The clause appears too closely typed below the names

of the 19 crewmen and their wages with no similar intervening space as that which appears between all the paragraphs and the triple space which appears between the list of crewmembers and their wages on one hand and the paragraph above which introduces the list, on the other. The verb "were" was also inserted above the verb "was" to make the clause grammatically correct but the insertion of "were" is already on the same line as "Antonio Miranda and 5,221.06" where it clearly does not belong. There is no other space where the word "were" could be intercalated. (See Rollo, page 80). At any rate, the proposition that the petitioners should have pretended to accept the increased wages while in Vancouver but returned them to the shipowner when they reached its country, Japan, has already been answered earlier by the Court: Filipino seamen are admittedly as competent and reliable as seamen from any other country in the world. Otherwise, there would not be so many of them in the vessels sailing in every ocean and sea on this globe. It is competence and reliability, not cheap labor that makes our seamen so greatly in demand. Filipino seamen have never demanded the same high salaries as seamen from the United States, the United Kingdom, Japan and other developed nations. But certainly they are entitled to government protection when they ask for fair and decent treatment by their employer and when they exercise the right to petition for improved terms of employment, especially when they feel that these are sub-standard or are capable of improvement according to internationally accepted rules. In the domestic scene, there are marginal employers who prepare two sets of payrolls for their employees one in keeping with minimum wages and the other recording the sub-standard wages that the employees really receive. The reliable employers, however, not only meet the minimums required by fair labor standards legislation but even go away above the minimums while earning reasonable profits and prospering. The same is true of international employment. There is no reason why this court and the Ministry of Labor and Employment or its agencies and commissions should come out with pronouncements based on the standards and practices of unscrupulous or inefficient shipowners, who claim they cannot survive without resorting to tricky and deceptive schemes, instead of Government maintaining labor law and jurisprudence according to the practices of honorable, competent, and law-abiding employers, domestic or foreign. (Vir-Jen Shipping, supra, pp. 587-588) It is noteworthy to emphasize that while the Intemational Labor Organization (ILO) set the minimum basic wage of able seamen at US$187.00 as early as October 1976, it was only in 1979 that the respondent NSB issued Memo Circular No. 45, enjoining all shipping companies to adopt the said minimum basic wage. It was correct for the respondent NSB to state in its decision that when the petitioners entered into separate contracts between 1977-1978, the monthly minimum basic wage for able seamen ordered by NSB was still fixed at US$130.00. However, it is not the fault of the petitioners that the NSB not only violated the Labor Code which created it and the Rules and Regulations Implementing the Labor Code but also seeks to punish the seamen for a shortcoming of NSB itself.

Article 21(c) of the Labor Code, when it created the NSB, mandated the Board to "(O)btain the best possible terms and conditions of employment for seamen." Section 15, Rule V of Book I of the Rules and Regulations Implementing the Labor Code provides: Sec. 15. Model contract of employment. The NSB shall devise a model contract of employment which shall embody all the requirements of pertinent labor and social legislations and the prevailing standards set by applicable International Labor Organization Conventions. The model contract shall set the minimum standards of the terms and conditions to govern the employment of Filipinos on board vessels engaged in overseas trade. All employers of Filipinos shall adopt the model contract in connection with the hiring and engagement of the services of Filipino seafarers, and in no case shall a shipboard employment contract be allowed where the same provides for benefits less than those enumerated in the model employment contract, or in any way conflicts with any other provisions embodied in the model contract. Section 18 of Rule VI of the same Rules and Regulations provides: Sec. 18. Basic minimum salary of able-seamen. The basic minimum salary of seamen shall be not less than the prevailing minimxun rates established by the International Labor Organization or those prevailing in the country whose flag the employing vessel carries, whichever is higher. However, this provision shall not apply if any shipping company pays its crew members salaries above the minimum herein provided. Section 8, Rule X, Book I of the Omnibus Rules provides: Section 8. Use of standard format of service agreement . The Board shall adopt a standard format of service agreement in accordance with pertinent labor and social legislation and prevailing standards set by applicable International Labor Organization Conventions. The standard format shall set the minimum standard of the terms and conditions to govern the employment of Filipino seafarers but in no case shall a shipboard employment contract (sic), or in any way conflict with any other provision embodied in the standard format. It took three years for the NSB to implement requirements which, under the law, they were obliged to follow and execute immediately. During those three years, the incident in Vancouver happened. The terms and conditions agreed upon in Vancouver were well within ILO rates even if they were above NSB standards at the time. The sanctions applied by NSB and affirmed by NLRC are moreover not in keeping with the basic premise that this Court stressed in the Vir-Jen Shipping case (supra) that the Ministry now the Department of Labor and Employment and all its agencies exist primarily for the workingman's interest and the nation's as a whole.

Implicit in these petitions and the only reason for the NSB to take the side of foreign shipowners against Filipino seamen is the "killing the goose which lays the golden eggs" argument. We reiterate the ruling of the Court in Vir-Jen Shipping (supra) There are various arguments raised by the petitioners but the common thread running through all of them is the contention, if not the dismal prophecy, that if the respondent seamen are sustained by this Court, we would in effect "kill the hen that lays the golden egg." In other words, Filipino seamen, admittedly among the best in the world, should remain satisfied with relatively lower if not the lowest, international rates of compensation, should not agitate for higher wages while their contracts of employment are subsisting, should accept as sacred, iron clad, and immutable the side contracts which require: them to falsely pretend to be members of international labor federations, pretend to receive higher salaries at certain foreign ports only to return the increased pay once the ship leaves that port, should stifle not only their right to ask for improved terms of employment but their freedom of speech and expression, and should suffer instant termination of employment at the slightest sign of dissatisfaction with no protection from their Government and their courts. Otherwise, the petitioners contend that Filipinos would no longer be accepted as seamen, those employed would lose their jobs, and the still unemployed would be left hopeless. This is not the first time and it will not be the last where the threat of unemployment and loss of jobs would be used to argue against the interests of labor; where efforts by workingmen to better their terms of employment would be characterized as prejudicing the interests of labor as a whole. xxx xxx xxx Unionism, employers' liability acts, minimum wages, workmen's compensation, social security and collective bargaining to name a few were all initially opposed by employers and even well meaning leaders of government and society as "killing the hen or goose which lays the golden eggs." The claims of workingmen were described as outrageously injurious not only to the employer but more so to the employees themselves before these claims or demands were established by law and jurisprudence as "rights" and before these were proved beneficial to management, labor, and the national as a whole beyond reasonable doubt. The case before us does not represent any major advance in the rights of labor and the workingmen. The private respondents merely sought rights already established. No matter how much the petitioner-employer tries to present itself as speaking for the entire industry, there is no evidence that it is typical of employers hiring Filipino seamen or that it can speak for them. The contention that manning industries in the Philippines would not survive if the instant case is not decided in favor of the petitioner is not supported by evidence.

The Wallem case was decided on February 20, 1981. There have been no severe repercussions, no drying up of employment opportunities for seamen, and none of the dire consequences repeatedly emphasized by the petitioner. Why should Vir-Jen be an exception? The wages of seamen engaged in international shipping are shouldered by the foreign principal. The local manning office is an agent whose primary function is recruitment and who usually gets a lump sum from the shipowner to defray the salaries of the crew. The hiring of seamen and the determination of their compensation is subject to the interplay of various market factors and one key factor is how much in terms of profits the local manning office and the foreign shipowner may realize after the costs of the voyage are met. And costs include salaries of officers and crew members. (at pp. 585-586) The Wallem Shipping case, was decided in 1981. Vir-Jen Shipping was decided in 1983. It is now 1989. There has'been no drying up of employment opportunities for Filipino seamen. Not only have their wages improved thus leading ITF to be placid and quiet all these years insofar as Filipinos are concerned but the hiring of Philippine seamen is at its highest level ever. Reporting its activities for the year 1988, the Philippine Overseas Employment Administration (POEA) stated that there will be an increase in demand for seamen based overseas in 1989 boosting the number to as high as 105,000. This will represent a 9.5 percent increase from the 1988 aggregate. (Business World, News Briefs,January 11, 1989 at page 2) According to the POEA, seabased workers numbering 95,913 in 1988 exceeded by a wide margin of 28.15 percent the year end total in 1987. The report shows that sea-based workers posted bigger monthly increments compared to those of landbased workers. (The Business Star, Indicators, January 11, 1988 at page 2) Augmenting this optimistic report of POEA Administrator Tomas Achacoso is the statement of Secretary of Labor Franklin M. Drilon that the Philippines has a big jump over other crewing nations because of the Filipinos' abilities compared with any European or westem crewing country. Drilon added that cruise shipping is also a growing market for Filipino seafarers because of their flexibility in handling odd jobs and their expertise in handling almost all types of ships, including luxury liners. (Manila Bulletin, More Filipino Seamen Expected Development, December 27, 1988 at page 29). lParenthetically, the minimum monthly salary of able bodied seamen set by the ILO and adhered to by the Philippines is now $276.00 ( id.) more than double the $130.00 sought to be enforced by the public respondents in these petitions. The experience from 1981 to the present vindicates the finding in Vir-Jen Shipping that a decision in favor of the seamen would not necessarily mean severe repercussions, drying up of employment opportunities for seamen, and other dire consequences predicted by manning agencies and recruiters in the Philippines.

From the foregoing, we find that the NSB and NLRC committed grave abuse of discretion in finding the petitioners guilty of using intimidation and illegal means in breaching their contracts of employment and punishing them for these alleged offenses. Consequently, the criminal prosecutions for estafa in G.R. Nos. 57999 and 58143-53 should be dismissed. WHEREFORE, the petitions are hereby GRANTED. The decisions of the National Seamen Board and National Labor Relations Commission in G. R. Nos. 64781-99 are REVERSED and SET ASIDE and a new one is entered holding the petitioners not guilty of the offenses for which they were charged. The petitioners' suspension from the National Seamen Board's Registry for three (3) years is LIFTED. The private respondent is ordered to pay the petitioners their earned but unpaid wages and overtime pay/allowance from November 1, 1978 to December 14, 1978 according to the rates in the Special Agreement that the parties entered into in Vancouver, Canada. The criminal cases for estafa, subject matter of G. R. Nos. 57999 and 58143-53, are ordered DISMISSED. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

This is a petition for certiorari to review the Decision of the National Labor Relations Commission (NLRC), 1 dated December 29, 1992, which affirmed the Decision of public respondent Philippine Overseas Employment Agency (POEA) Administrator Jose N. Sarmiento, dated February 17, 1992, dismissing petitioner's complaint for unpaid salaries amounting to Six Thousand Dollars (US$6,000.00). The facts are undisputed. On December 1, 1988, petitioner, an entertainment dancer, entered into a standard employment contract for overseas Filipino artists and entertainers with Planning Japan Co., Ltd., 2 through its Philippine representative, private respondent Centrum Placement & Promotions Corporation. The contract had a duration of two (2) to six (6) months, and petitioner was to be paid a monthly compensation of One Thousand Five Hundred Dollars (US$1,5000.00). On December 5, 1888, the POEA approved the contract. Subsequently, petitioner executed the following side agreement with her Japanese employer through her local manager, Jaz Talents Promotion: Date: Dec. 10, 1988 SUBJECT: MANAGERIAL COMMISSION Salary Deduction

DATE OF DEPARTURE: _________________ ATTENTION: MR. IWATA G.R. No. 109808 March 1, 1995 ESALYN CHAVEZ, petitioner, vs. HON. EDNA BONTO-PEREZ, HON. ROGELIO T. RAYALA, HON. DOMINGO H. ZAPANTA, HON. JOSE N. SARMIENTO, CENTRUM PROMOTIONS PLACEMENT CORPORATION, JOSE A. AZUCENA, JR., and TIMES SURETY & INSURANCE COMPANY, INC. respondents. PUNO, J.: One of the anguished cries in our society today is that while our laws appear to protect the poor, their interpretation is sometimes anti-poor. In the case at bench, petitioner, a poor, uncounselled entertainment dancer signed a contract with her Japanese employer calling for a monthly salary of One Thousand Five Hundred U.S. Dollars (US$1,500) but later had to sign an immoral side agreement reducing her salary below the minimum standard set by the POEA. Petitioner invoked the law to collect her salary differentials, but incredibly found public respondent straining the seams of our law to disfavor her. There is no greater disappointment to the poor like petitioner than to discover the ugly reality behind the beautiful rhetoric of laws. We will not allow this travesty. On December 16, 1988, petitioner left for Osaka, Japan, where she worked for six (6) months, until June 10, 1989. She came back to the Philippines on June 14, 1989. Petitioner instituted the case at bench for underpayment of wages with the POEA on February 21, 1991. She prayed for the payment of Six Thousand U.S. Dollars (US$6,000.00), representing the unpaid portion of her basic salary for six months. Charged in the case were private respondent Centrum Promotions and Placement Corporation, the Philippine representative of Planning Japan, Co., Inc., its insurer, Times Surety and Insurance Co., Inc., and Jaz Talents Promotion. I, ESALYN CHAVEZ, DANCER, do hereby with my own free will and voluntarily have the honor to authorize your good office to please deduct the amount of TWO HUNDRED FIFTY DOLLARS ($250) from my contracted monthly salary of SEVEN HUNDRED FIFTY DOLLARS ($750) as monthly commission for my Manager, Mr. Jose A. Azucena, Jr. That, my monthly salary (net) is FIVE HUNDRED DOLLARS ($500).

The complaint was dismissed by public respondent POEA Administrator on February 17, 1992. He ratiocinated,inter alia: . . . Apparently and from all indications, complainant (referring to petitioner herein) was satisfied and did not have any complaint (about) anything regarding her employment in Japan until after almost two (2) years (when) she filed the instant complaint on February 21, 1991. The records show that after signing the Standard Employment Contract on December 1, 1988, she entered into a side agreement with the Japanese employer thru her local manager, Jaz Talents Promotion consenting to a monthly salary of US$750.00 which she affirmed during the conference of May 21, 1991. Respondent agency had no knowledge nor participation in the said agreement such that it could not be faulted for violation of the Standard Employment Contract regarding the stipulated salary. We cannot take cognizance of such violation when one of the principal party (sic) thereto opted to receive a salary different from what has been stipulated in their contract, especially so if the contracting party did not consent/participate in such arrangement. Complainant (petitioner) cannot now demand from respondent agency to pay her the salary based (on) the processed Employment Contract for she is now considered in bad faith and hence, estopped from claiming thereto thru her own act of consenting and agreeing to receive a salary not in accordance with her contract of employment. Moreover, her self-imposed silence for a long period of time worked to her own disadvantage as she allowed laches to prevail which barred respondent from doing something at the outset. Normally, if a person's right (is) violated, she/he would immediately react to protect her/his rights which is not true in the case at bar. The term laches has been defined as one's negligence or failure to assert his right in due time or within reasonable time from the accrual of his cause of action, thus, leading another party to believe that there is nothing wrong with his own claim. This resulted in placing the negligent party in estoppel to assert or enforce his right. . . . Likewise, the Supreme Court in one case held that not only is inaction within reasonable time to enforce a right the basic premise that underlies a valid defense of laches but such inaction evinces implied consent or acquiescence to the violation of the right . . . Under the prevailing circumstances of this case, it is outside the regulatory powers of the Administration to rule on the liability of respondent Jaz Talents Promotions, if any, (it) not being a licensed private agency but a promotion which trains entertainers for abroad. xxx xxx xxx (Citations omitted.) On appeal, the NLRC upheld the Decision, thus:

We fail to see any conspiracy that the complainant (petitioner herein) imputes to the respondents. She has, to put it bluntly, not established and/or laid the basis for Us to arrive at a conclusion that the respondents have been and should be held liable for her claims. The way We see it, the records do not at all indicate any connection between respondents Centrum Promotion & Placement Corporation and Jaz Talents Promotion. There is, therefore, no merit in the appeal. Hence, We affirmed. 4 Dissatisfied with the NLRC's Decision, petitioner instituted the present petition, alleging that public respondents committed grave abuse of discretion in finding: that she is guilty of laches; that she entered into a side contract on December 10, 1988 for the reduction of her basic salary to Seven Hundred Fifty U.S. Dollars (US$750.00) which superseded, nullified and invalidated the standard employment contract she entered into on December 1, 1988; and that Planning Japan Co., Ltd. and private respondents are not solidarily liable to her for Six Thousand US Dollars (US$6,000.00) in unpaid wages. 5 The petition is meritorious. Firstly, we hold that the managerial commission agreement executed by petitioner to authorize her Japanese Employer to deduct Two Hundred Fifty U.S. Dollars (US$250.00) from her monthly basic salary is void because it is against our existing laws, morals and public policy. It cannot supersede the standard employment contract of December 1, 1988 approved by the POEA with the following stipulation appended thereto: It is understood that the terms and conditions stated in this Employment Contract are in conformance with the Standard Employment Contract for Entertainers prescribed by the POEA under Memorandum Circular No. 2, Series of 1986. Any alterations or changes made in any part of this contract without prior approval by the POEA shall be null and void; 6 (Emphasis supplied.) The stipulation is in line with the provisions of Rule II, Book V and Section 2(f), Rule I, Book VI of the 1991 Rules and Regulations Governing Overseas Employment, thus: Book V, Rule II Sec. 1. Employment Standards. The Administration shall determine, formulate and review employment standards in accordance with the market development and welfare objectives of the overseas employment program and the prevailing market conditions.

Sec. 2. Minimum Provisions for Contract . The following shall be considered the minimum requirements for contracts of employment: a. Guaranteed wages for regular working hours and overtime pay for services rendered beyond regular working hours in accordance with the standards established by the Administration; xxx xxx xxx Sec. 3. Standard Employment Contract. The administration shall undertake development and/or periodic review of region, country and skills specific employment contracts for landbased workers and conduct regular review of standard employment contracts (SEC) for seafarers. These contracts shall provide for minimum employment standards herein enumerated under Section 2, of this Rule and shall recognize the prevailing labor and social legislations at the site of employment and international conventions. The SEC shall set the minimum terms and conditions of employment. All employers and principals shall adopt the SEC in connection with the hiring of workers without prejudice to their adoption of other terms and conditions of employment over and above the minimum standards of the Administration. (Emphasis supplied.) and BOOK VI, RULE I Sec. 2. Grounds for suspension/cancellation of license. xxx xxx xxx f. Substituting or altering employment contracts and other documents approved and verified by the Administration from the time of actual signing thereof by the parties up to and including the period of expiration of the same without the Administration's approval. xxx xxx xxx (Emphasis supplied.) Clearly, the basic salary of One Thousand Five Hundred U.S. Dollars (US$1,500.00) guaranteed to petitioner under the parties' standard employment contract is in accordance with the minimum employment standards with respect to wages set by the POEA, Thus, the side agreement which reduced petitioner's basic wage to Seven Hundred Fifty U.S. Dollars

(US$750.00) is null and void for violating the POEA's minimum employment standards, and for not having been approved by the POEA. Indeed, this side agreement is a scheme all too frequently resorted to by unscrupulous employers against our helpless overseas workers who are compelled to agree to satisfy their basic economic needs. Secondly. The doctrine of laches or "stale demands"' cannot be applied to petitioner. Laches has been defined as the failure or neglect for an unreasonable and unexplained length time to do that which, by exercising due diligence, could or should have been done earlier, 7 thus giving rise to a presumption that the party entitled to assert it either has abandoned or declined to assert it. 8 It is not concerned with mere lapse of time; the fact of delay, standing alone, is insufficient to constitute laches. 9 The doctrine of laches is based upon grounds of public policy which requires, for the peace of society, the discouragement of stale claims, and is principally a question of the inequity or unfairness of permitting a right or claim to be enforced or asserted. 10 There is no absolute rule as to what constitutes laches; each case is to be determined according to its particular circumstances. The question of laches is addressed to the sound discretion of the court, and since it is an equitable doctrine, its application is controlled by equitable considerations. It cannot be worked to defeat justice or to perpetrate fraud and injustice. 11 In the case at bench, petitioner filed her claim well within the three-year prescriptive period for the filing of money claims set forth in Article 291 of the Labor Code. 12 For this reason, we hold the doctrine of laches inapplicable to petitioner. As we ruled in Imperial Victory Shipping Agency v. NLRC, 200 SCRA 178 (1991): . . . Laches is a doctrine in equity while prescription is based on law. Our courts are basically courts of law not courts of equity. Thus, laches cannot be invoked to resist the enforcement of an existing legal right. We have ruled in Arsenal v. Intermediate Appellate Court . . . that it is a long standing principle that equity follows the law. Courts exercising equity jurisdiction are bound by rules of law and have no arbitrary discretion to disregard them. In Zabat, Jr. v. Court of Appeals . . ., this Court was more emphatic upholding the rules of procedure. We said therein: As for equity, which has been aptly described as a "justice outside legality," this applied only in the absence of, and never against, statutory law or, as in this case, judicial rules of procedure. Aequetas nunguam contravenit legis. The pertinent positive rules being present here, they should pre-empt and prevail over all abstract arguments based only on equity. Thus, where the claim was filed within the three-year statutory period, recovery therefore cannot be barred by laches . Courts should never apply the doctrine of laches earlier than the expiration of time limited for the commencement of actions at law.

xxx xxx xxx (Emphasis supplied. Citations omitted.) Thirdly, private respondents Centrum and Times as well as Planning Japan Co., Ltd. the agency's foreign principal are solidarily liable to petitioner for her unpaid wages. This is in accordance with stipulation 13.7 of the parties' standard employment contract which provides: 13.7. The Employer (in this case, Planning Japan Co., Ltd. ) and its locally (sic) agent/promoter/representative (private respondent Centrum Promotions & Placement Corporation) shall be jointly and severally responsible for the proper implementation of the terms and conditions in this Contract. 13 (Emphasis supplied.) This solidary liability also arises from the provisions of Section 10(a)(2), Rule V, Book I of the Omnibus Rules Implementing the Labor Code, as amended, thus: Sec. 10. Requirement before recruitment. Before recruiting any worker, the private employment agency shall submit to the Bureau the following documents: a) A formal appointment or agency contract executed by a foreign-based employer in favor of the license holder to recruit and hire personnel for the former . . . . Such formal appointment or recruitment agreement shall contain the following provisions, among others: xxx xxx xxx 2. Power of the agency to sue and be sued jointly and solidarily with the principal or foreign based employer for any of the violations of the recruitment agreement and the contracts of employment . xxx xxx xxx (Emphasis supplied.) Our overseas workers constitute an exploited class. Most of them come from the poorest sector of our society. They are thoroughly disadvantaged. Their profile shows they live in suffocating slums, trapped in an environment of crime. Hardly literate and in ill health, their only hope lies in jobs they can hardly find in our country. Their unfortunate circumstance makes them easy prey to avaricious employers. They will climb mountains, cross the seas, endure slave treatment in foreign lands just to survive. Out of despondence, they will work under sub-human conditions and accept salaries below the minimum. The least we can do is

to protect them with our laws in our land. Regretfully, respondent public officials who should sympathize with the working class appear to have a different orientation. IN VIEW WHEREOF, the petition is GRANTED. The Decisions of respondent POEA Administrator and NLRC Commissioners in POEA Case No. Adj. 91-02-199 (ER), respectively dated February 17 and December 29, 1992, and the Resolution of the NLRC, dated March 23, 1993, are REVERSED and SET ASIDE. Private respondents are held jointly and severally liable to petitioner for the payment of SIX THOUSAND US DOLLARS (US$6,000.00) in unpaid wages. Costs against private respondents. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 82252 February 28, 1989 SEAGULL MARITIME CORP. AND PHILIMARE SHIPPING & EQUIPMENT SUPPLY, petitioners vs. NERRY D. BALATONGAN, NATIONAL LABOR RELATIONS COMMISSION AND PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION, respondents. Tanjuatco, Oreta, Tanjuatco, Berenguer & San Vicente for petitioners. The Solicitor General for public respondent. Benjamin B. Vergara for private respondent GANCAYCO, J.: On November 2, 1982, a "crew Agreement" was entered into by private respondent Nerry D. Balatongan and Philimare Shipping and Equipment Supply (hereinafter called Philimare) whereby the latter employed the former as able seaman on board its vessel "Santa Cruz" (renamed "Turtle Bay") with a monthly salary of US $ 300.00. Said agreement was processed and approved by the National Seaman's Board (NSB) on November 3, 1982. 1 While on board said vessel the said parties entered into a supplementary contract of employment on December 6, 1982 2 which provides among others: 1. The employer shall be obliged to insure the employee during his engagement against death or permanent invalidity caused by accident on board up to: US $ 40,000 - for death caused by accident

US $ 50,000 - for permanent total disability caused by accident. 3 On October 6, 1983 Balatongan met an accident in the Suez Canal, Egypt as a result of which he was hospitalized at the Suez Canal Authority Hospital. Later, he was repatriated to the Philippines and was hospitalized at the Makati Medical Center from October 23, 1983 to March 27, 1984. On August 19, 1985 the medical certificate was issued describing his disability as "permanent in nature." Balatongan demanded payment for his claim for total disability insurance in the amount of US $ 50,000.00 as provided for in the contract of employment but his claim was denied for having been submitted to the insurers beyond the designated period for doing so. Thus, Balatongan filed on June 21, 1985 a complaint against Philimare and Seagull Maritime Corporation (hereinafter called Seagull) in the Philippine Overseas Employment Administration (POEA) for non-payment of his claim for permanent total disability with damages and attorney's fees. After the parties submitted their respective position papers with the corresponding documentary evidence, the officer-in-charge of the Workers Assistance and Adjudication Office of the POEA rendered a decision on May 2, 1986, the dispositive part of which reads as follows: WHEREFORE, premises considered, respondents are hereby ordered to pay complainant the amount of US $ 50,000.00 representing permanent total disability insurance and attorney's fees at 10% of the award. Payment should be made in this Office within ten (10) days from receipt hereof at the prevailing rate of exchange. This Office cannot however rule on damages, having no jurisdiction on the matter. SO ORDERED. 4 Seagull and Philimare appealed said decision to the National Labor Relations Commission (NLRC) on June 4, 1986. Pending resolution of their appeal because of the alleged transfer of the agency of Seagull to Southeast Asia Shipping Corporation, Seagull filed on April 28, 1987 a Motion For Substitution/Inclusion of Party Respondent which was opposed by Balatongan. 5 This was followed by an ex-parte motion for leave to file third party complaint on June 4, 1987 by Seagull. A decision was promulgated on December 7, 1987 denying both motions and dismissing the appeal for lack of merit. 6 A motion for reconsideration of said decision was denied for lack of merit in a resolution dated February 26, 1988. 7 Hence, Seagull and Philimare filed this petition for certiorari with a prayer for the issuance of a temporary restraining order based on the following grounds: 1. Respondent POEA erred in applying the Supplemental Contract;

2. Respondents POEA and NLRC acted with grave abuse of discretion in holding that the Supplemental Contract was signed on board MV Santa Cruz by and between private respondent and your petitioner; and 3. Respondent NLRC acted with grave abuse of discretion in not giving due course to your petitioners' Motion for Leave to File Third Party Complaint as well as their Motion for Inclusion/Substitution of respondents. 8 On March 21, 1988, the Court issued a temporary restraining order enjoining respondents from enforcing the questioned decision and resolution of public respondents. Petitioners argue that prior to private respondent's departure he executed a crew agreement on November 2, 1982 which was duly approved by the POEA; that the supplementary contract of employment that was entered into on board the vessel "Turtle Bay" which provides for a US $ 50,000.00 insurance benefit in case of permanent disability was neither approved nor verified by respondent POEA; and that the same violates Article 34(i) of the Labor Code, as amended, which provides as follows: Art. 34. Prohibited Practices. - It shall be unlawful for any individual, entity, licensee, or holder of authority: xxx xxx xxx xxx xxx xxx (i) to substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the period of expiration of the same without the approval of the Department of Labor. Petitioners also call attention to Article VIII, paragraph 2 of the Supplementary Contract which provides as follows: 2. Notwithstanding his claim against the insurers the employee hereby expressly waives all claims of his own or his heirs for compensation of damages due to death or permanent invalidity which he suffered during his engagement against the employers ... unless his death or permanent invalidity has been caused by willful act of any of the above-named persons. 9 Petitioners stress that while public respondents upheld the applicability of said supplementary contract insofar as it increased the benefits to private respondent, public respondents considered the provision on the waiver against all claims by private respondent to be contrary to public policy.

In its questioned decision dated December 7, 1987, the respondent NLRC made the following disquisition: The focal issue for determination is the validity and enforceability of the second contract of employment entered into by and between complainant and respondents on board the vessel where the former had served as a member of its complement despite the absence of NSB verification or approval. With respect to the findings of facts in the appealed decision, We consider the same as duly supported by substantial evidence and the admissions of the parties in their pleadings. Much stress and emphasis are made by the respondents in their appeal that this claim has no legal basis or footing inasmuch as the second contract of employment containing a total disability insurance benefit of US $ 50,000.00, much more than that embodied in the first contract of employment which was approved by the defunct NSB, was not verified or approved by the latter. Accordingly, the respondents posit the argument that subject claim may not prosper pursuant to the provisions of Art. 34(i) of the Labor Code, as amended, which provides that it shall be unlawful for any individual, entity, licensee, or holder of authority '(T)o substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the period of expiration of the same without the approval of the Department of Labor. Did the POEA commit a reversible error when it considered the second contract of employment as valid sans any verification or approval thereof by the NSB? Our answer to this query is in the negative. Apparently, the intention of the law when Art. 34 of the Labor Code was enacted is to provide for the prohibited and unlawful practices relative to recruitment and placement. As shown in the 'Explanatory Note' of Parliamentary Bill No. 4531, pertaining to Art. 34 (supra), thus: Many of the provisions are already existing and were simply restated. Some however were restated with modifications and new ones were introduced to reflect what in the past have been noted to be pernicious practices which tend to place workers at a disadvantage.' it is indubitably clear that the purpose of having overseas contracts of employment approved by the NSB(POEA) is whether or not such contracts conform to the minimum terms and conditions prescribed by the NSB (POEA). In other words, the law did not at all prohibit any alteration which provided for increases in wages or other benefits voluntarily granted by the employer. Precisely, under Section 2, Rule 1, Book V of the Rules and Regulations of the POEA, '(t)he standard format of employment contracts shall set the minimum standards of the terms and conditions of employment. All employers and principals shall adopt the model contract in connection with the hiring of workers without prejudice to their adopting other terms and conditions of employment over and above the minimum standards of the Administration.' Where, as here, it is admitted that the second contract although not

verified or approved by the NSB (POEA) granted more benefits by way of total disability insurance to the complainant, the respondents may not be allowed to disvow their own voluntary acts by insisting that such beneficial contract in favor of the seaman is null and void. (Emphasis supplied.) 10 We agree. The supplementary contract of employment was entered into between petitioner and private respondent to modify the original contract of employment The reason why the law requires that the POEA should approve and verify a contract under Article 34(i) of the Labor Code is to insure that the employee shall not thereby be placed in a disadvantageous position and that the same are within the minimum standards of the terms and conditions of such employment contract set by the POEA. This is why a standard format for employment contracts has been adopted by the Department of Labor. However, there is no prohibition against stipulating in a contract more benefits to the employee than those required by law. Thus, in this case wherein a "supplementary contract" was entered into affording greater benefits to the employee than the previous one, and although the same was not submitted for the approval of the POEA, the public respondents properly considered said contract to be valid and enforceable. Indeed, said pronouncements of public respondents have the effect of an approval of said contract. Moreover, as said contract was voluntarily entered into by the parties the same is binding between them. 11 Not being contrary to law, morals, good customs, public policy or public order, its validity must be sustained. 12 By the same token, the court sustains the ruling of public respondents that the provision in the supplementary contract whereby private respondent waives any claim against petitioners for damages arising from death or permanent disability is against public policy, oppressive and inimical to the rights of private respondent. The said provision defeats and is inconsistent with the duty of petitioners to insure private respondent against said contingencies as clearly stipulated in the said contract. Petitioners however argue that they could not have entered into said supplementary contract of employment as Philimare was a mere manning agent in the Philippines of the shipping company managed by Navales Shipping Management and Marine Consultant (Pte) Ltd., its principal. Petitioners assert that the said supplementary contract was entered into by private respondent with their principal, Navales Shipping Management and Marine Consultant (Pte) Ltd. on board the vessel Turtle Bay so petitioners cannot be held responsible thereunder. This Court is not a trier of facts and the findings of the public respondents are conclusive in this proceeding. Public respondents found that petitioner Philimare and private respondent entered into said supplementary contract of employment on December 6, 1982. Assuming for the sake of argument that it was petitioners' principal which entered into said contract with private respondent, nevertheless petitioner, as its manning agent in the Philippines, is jointly responsible with its principal thereunder. 13 There is no question that under the said supplementary contract of employment, it is the duty of the employer, petitioners herein, to insure the employee, during his engagement, against death and permanent invalidity caused by accident on board up to $ 50,000.00. Consequently,

it is also its concomitant obligation to see to it that the claim against the insurance company is duly filed by private respondent or in his behalf, and within the time provided for by the terms of the insurance contract. In this case, the private respondent met the accident on October 6, 1983. Since then, he was hospitalized at the Suez Canal Authority Hospital and thereafter be was repatriated to the Philippines wherein he was also hospitalized from October 22, 1983 to March 27, 1984. It was only on August 19, 1985 that he was issued a medical certificate describing his disability to be permanent in nature. It was not possible for private respondent to file a claim for permanent disability with the insurance company within the one-year period from the time of the injury, as his disability was ascertained to be permanent only thereafter. Petitioners did not exert any effort to assist private respondent to recover payment of his claim from the insurance company. They did not even care to dispute the finding of the insurer that the claim was not flied on time. 14 Petitioners must, therefore, be held responsible for its omission, if not negligence, by requiring them to pay the claim of private respondent. The Court finds that the respondent NLRC did not commit a grave abuse of discretion in denying petitioners, motion for leave to file third-party complaint and substitution inclusion of party respondent. Such motion is largely addressed to the discretion of the said Commission. Inasmuch as the alleged transfer of interest took place only after the POEA had rendered its decision, the denial of the motion so as to avoid further delay in the settlement of the claim of private respondent was well-taken. At any rate, petitioners may pursue their claim against their alleged successor-in-interest in a separate suit. WHEREFORE, the petition is hereby DISMISSED for lack of merit and the temporary restraining order issued by this Court on March 21, 1988 is hereby LIFTED. No costs. This decision is immediately executory. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. Nos. L-101579-82 December 15, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUCILLE B. SENDON, * accusedappellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant.

REGALADO, J.: The virtual diaspora of our countrymen seeking employment in foreign lands, due to the economic travails of the country these past years, will hereafter be recounted with admiration and sympathy for their intrepidity and self-abnegation. It has, in fact, given rise to a new breed of humble economic heroes, the overseas contract workers, who have breasted all hazards for hearth and family. It has, deplorably, also produced a new species of human vultures, different types of aves de rapia or birds of prey, whose victims are those who would seek a hopefully better future as migrant laborers. This is the genesis of Criminal Cases Nos. Ir-2623, 2624, 2625 and 2657 of the Regional Trial Court of Iriga City. Sometime in July or August of 1988, Emma Concepcion-Hermogeno (complaint in Criminal Case No. Ir-2625) met accused-appellant Lucille Sendon at the store owned by Lydia Cepres located in the store owned by Lydia Cepres located in the market pavilion in Iriga City. Lucille represented herself as a former employee of Muhammad Al Jabri of Oman and that she was allegedly authorized by the latter to directly hire someone to work as a domestic helper in Oman. A certain Josie had allegedly backed out from the position and Lucille asked Hermogeno if she was interested in applying therefor. However, Hermogeno, being a nursing graduate, indicated her preference to work as a nurse. Lucille assured her that she could easily change jobs upon her arrival in Oman because of her employer's connections. Hermogeno's mother met with Natividad Sendon, mother of Lucille Sendon, regarding the job offer. Subsequently, the former readily gave her permission when she was informed that they were related to the Sendons. 1 On different occasions, Hermogeno gave Lucille P16,500.00 as placement fee in four installments of P5,500.00, P5,500.00, P4,800.00 and P700.00. 2 In addition, she also gave Lucille P1,000.00 as lagay (bribe money), supposedly to be given to the medical examiner since Hermogeno reportedly had a heart defect; P850.00 which she requested Lucille to give to her sister, but the latter failed to do so; and P400.00 which Lucille borrowed from her. On a later date, Lucille accompanied her to Manila for her physical examination and clearance from the National Bureau of Investigation (NBI). 3 On the other hand, Delia Velasco (complainant in Criminal Case No. Ir-2623), an employee of a rural bank, also had occasion to meet Lucille sometime in August, 1988 at Lydia Cepres' store while she was doing one of her rounds as credit collector of the bank. Representing herself as a recruiter, Lucille offered her a tutorial job in Singapore. With Lydia Cepres' assurance that Lucille is her relative, Velasco accepted the job offer. 4 Initially, Velasco gave Lucille P250.00, along with her bio-data. On separate occasions, she also gave P3,000.00 as processing fee, P13,500.00 as placement fee in two installments of P13,000.00 and P500.00. Lucille also borrowed P2,700.00 from her. 5 Like Hermogeno, she also went to Manila for her physical examination, as well as to secure her NBI clearance. Lydia Cepres (complainant in Criminal Case No. Ir-2624) had theretofore known Lucille's mother, Natividad Sendon, who had been her hilot (an unlicensed midwife) when she gave

birth to her third child. Sometime in July, 1988, Natividad informed her that her daughter, Lucille, had just arrived from abroad and was looking for a baby-sitter to work in Oman. Due to her desire to work abroad, Cepres went to Natividad's house to personally meet Lucille. She was instructed to prepare her papers and money to expedite her departure. At first, Cepres' husband was reluctant to agree to the plan but, due to Lucille's and Natividad's assurances that the prospective employer was a good person, the former eventually gave his consent. 6 Thus, Cepres readily gave Lucille her bio-data as well as P350.00 prior to the latter's scheduled departure for Manila. Upon Lucille's return, she handed to Lucille P16,500.00 as processing and placement fee in two installments of P7,500.00 and P9,000.00, respectively. Thereafter, she also gave Lucille P350.00 for the pregnancy test, another P150.00 for the AIDS test, and P350.00 for her "defective" birth certificate. 7 Allegedly due to their employer's preference for single employees, Lucille advised Cepres to use her maiden name, Lydia Samar. Hence, when Lucille found out that Cepres was pregnant, Lucille gave her some herbal plants to abort the child, but the child was not aborted. 8 Meanwhile, sometime in August, 1988, Pura Casco (complainant in Criminal Case No. Ir2657), a high school graduate and a housewife, met her first cousin, Lydia Cepres, at the Baao market, and the latter apprised her that an acquaintance named Lucille Sendon was hiring people to work abroad. Interested in the prospect, Casco went with Cepres to see Lucille who, on that occasion, offered her a job in Singapore as a domestic helper with a monthly salary of $350.00. 9 On their second meeting, Casco gave Lucille her birth certificate and bio-data along with P250.00, with the agreement that Lucille will work for the approval of her papers. 10 To comply with the job requirements, Casco and Velasco went together to Manila for their physical examination and to secure their NBI clearances. All in all, Casco spent more or less P20,500.00 which included, among others, the P16,500.00 placement fees which she gave to Lucille in four installments. 11 On September 2, 1988, Hermogeno, Cepres, Velasco and Casco, accompanied by Lucille's cousin, Aileen Lanuzga, all went to Manila this time for a cholera vaccination at Pier 2. They returned to Iriga City the same day. 12 Although Lucille assured them that a large part of their placement fee will be refunded the moment their employer arrives in Manila, Lucille gave no receipts for any of the amounts she had received from the four recruits-complainants. However, she assured them that all their papers were being taken care of and the results of the tests conducted on them would just be forwarded to them at a later date. Despite such assurances, they did not receive either the refund or any of the documents. Instead, Hermogeno was given by Lucille xerox copies of a "no objection" certificate from the Immigration Department of the Sultanate of Oman, a contract of employment, an addendum to the employment contract, as well as an addendum to the memorandum of agreement. 13 Delia Velasco was given xerox copies of an employment contract, an addendum to the memorandum agreement, and a disembarkation form intended for Singapore citizens and permanent residents only. 14 On the other hand, Cepres received xerox copies of a "no

objection" certificate from the Immigration Department of the Sultanate of Oman, a contract of employment for domestic helpers, and an addendum to the memorandum of agreement. 15 On her part, Casco acquired a disembarkation form for Singapore citizens and permanent residents only, an employment contract, and an addendum to both the employment contract and the memorandum of agreement. 16 Lucille notified private complainants that their departure date was September 15, 1988. Upon their arrival in Manila, however, they were unable to leave on said date allegedly due to the fact that Lucille's visa had expired. Lucille was supposed to accompany them to their respective places of employment. Thereafter, although Lucille assured them that they would definitely leave on the 30th of the month, they were again unable to do so. 17 To aggravate the matter, they started having a difficult time in contacting Lucille after said date, although they went to her house an innumerable number of times. 18 On October 12, 1988, already impatient due to her failure to leave for Singapore, Velasco succeeded in seeing Lucille at the residence of the latter's in-laws and she demanded that Lucille sign a promissory note for P14,000.00. Of said amount however, she was able to eventually obtain only P9,000.00. 19 A little over two weeks later, or on October 27, 1988 to be exact, Hermogeno saw Lucille by chance near the Allan Theater in Iriga City and she demanded the return of the money she had given to the latter. Unable to give the amount, Lucille signed a promissory note for P15,000.00 payable on November 31 (sic), 1988. Unfortunately, Hermogeno was able to ultimately recover only P2,900.00. 20 By accident, the four recruits-complainants later saw Lucille again, and she informed them that she was planning to go to Manila to see one Tessie Dimasalang of the Philippine Overseas Employment Administration (POEA) who allegedly had the refund money. Despite their insistence to come along with Lucille to Manila, the latter left them behind, leaving a letter addressed to Hermogeno assuring them that their passports will be ready when she returns, and advising them not to worry because she was taking care of everything. 21 In spite of her representations, Lucille thereafter failed to show up in Iriga City. Thus, sometime in September, 1988, Hermogeno and Velasco decided to go to the POEA to verify the existence of Tessie Dimasalang. Much to their surprise and chagrin, they were informed that no such person was employed in said office. 22 Fearing that they might have been duped, they went to Atty. Ricardo Martinez, Regional Director of the Department of Labor and Employment (DOLE), Region 5, who referred them to the DOLE office in Naga City. Said office issued to them a certificate, dated January 6, 1989, stating that Natividad Sendon and Lucille Sendon were not duly authorized or licensed recruiters of the POEA, nor had they been authorized by the DOLE to engage in the Province of Camarines Sur, for the period June to September, 1988, in the recruitment and placement of workers for overseas employment. With a referral letter dated January 8, 1989 from the

DOLE, they sought the assistance of the Iriga City Fiscal (now known as the City Prosecutor). 23 Consequently, in four separate informations filed before and raffled to two branches of the Regional Trial Court of Iriga City, docketed as Criminal Case Nos. Ir-2623 (Branch 37), Ir2624 (Branch 37), Ir-2625 (Branch 34 and Ir-2657 (Branch 34), Lucille Sendon was indicted for the crime of illegal recruitment in large scale, defined ion Article 38 and penalized under Article 39, both of the Labor Code, as amended. Her mother, Natividad Sendon, was likewise included in the charges in two informations (Criminal Cases Nos. Ir-2624 and Ir-2625) for the same offense. Separately arraigned in the four cases, accused Lucille Sendon pleaded not guilty. Similarly, accused Natividad Sendon pleaded not guilty when arraigned in the two cases earlier indicated. A motion for consolidation of the cases having been filed by the prosecution, the trial court issued an order consolidating the cases pending before Branch 34 (Ir-2625 and Ir02657) with those pending in Branch 37 (Ir-2623 and Ir-2624) for joint trial in the latter branch. 24 After trial on the merits, the court a quo rendered a consolidated decision finding accused Lucille Sendon guilty beyond reasonable doubt of the crime of illegal recruitment in large scale and sentenced her to suffer the penalty of life imprisonment and to pay a fine of P100,000.00. She was also ordered to return to Hermogeno the amount of P15,250.00; to Cepres, P21,600.00; to Velasco, P5,000.00; and to Casco, P20,545, as well a to pay the costs. On the other hand, Natividad Sendon was acquitted for insufficiency of evidence. 25 Under Article 13(b) of the Labor Code, recruitment and placement refers to the act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not. Pursuant to Article 38(b) in relation to Article 34 of the Code, the offense of illegal recruitment has two essential elements, to wit: (1) the accused must be engaged in the recruitment and placement of workers, whether locally or overseas; and (2) the accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of a license or an authority to recruit and deploy workers, either locally or overseas. 26 If it is committed against three or more persons individually or as a group, the crime becomes illegal recruitment in large scale which is considered an offense involving economic sabotage in Article 38(b) and is penalized under Article 39 of the Labor Code. Recruitment for overseas employment is not in itself necessarily immoral or unlawful. It is the lack of the necessary license or permit that renders such recruitment activities unlawful or criminal, 27 which is qualified into large scale recruitment when three or more persons are victimized. It is this more serious form of the crime of which appellant has been convicted and which verdict she entreats us to reverse and set aside.

Appellant's defense is anchored primarily on her assertion that she was never directly or indirectly involved in any recruitment activity. According to her, her Oman employer gave her a job order when she returned to the Philippines last July, 1988. She referred said job order to Marites Dimasalang, allegedly an employee in the direct hire section of the POEA. Although she admitted having introduced Dimasalang to private complainants, she denied having anything to do whatever in employing them for work abroad nor in facilitating the obtention of pertinent papers connected with the job. 28 Appellant posits that since Marites Dimasalang is nowhere to be found, private complainants would want to lay the blame on her. The documentary and testimonial evidence of the prosecution, however, show that appellant took an active and direct part in the recruitment process by adopting a systematic and elaborate scheme which gave the impression that she had the power to send people abroad for work. What assumes a fatal and crucial role in appellant's bid for exculpation is her failure to present evidence that Marites Dimasalang really exists and is not merely a figment of her imagination. As stated earlier, both Velasco and Hermogeno were informed, upon their inquiry, that no person by the name of Marites Dimasalang was ever connected with the POEA. Thus, we are left to conclude that appellant merely conjured that fictitious person to deflect any liability from herself. Assuming arguendo that there really is a Marites Dimasalang, still the prosecution has established beyond reasonable doubt that appellant is guilty of the crime charged. Of course, if and when it is shown that Dimasalang was also involved in illegal recruitment, the State can always charge her later. Her non-prosecution at this stage, however, provides no ground for appellant to fault the decision of the trial court convicting her. 29 Appellant seeks to undermine the credibility of herein complainants by pointing out certain inconsistencies in their testimonies, allegedly casting doubts on the plausibility of their charges. We do not agree. Time and again, this Court has declared that minor discrepancies in testimony do not affect the credibility of the prosecution witnesses. 30 What is important is the fact that appellant was positively identified by complainants as the person who represented herself as being authorized to engage in directly hiring overseas contract workers, who collected fees from them, and also pretended to make arrangements for their departure. Indeed, denials of the accused cannot be given greater evidentiary weight than the positive declarations of credible witnesses who testify on affirmative matters. 31 Appellant also argues that private complainants' failure to demand receipts as proof of payment, as well as other evidence of employment, is fatal to their case. There is nothing unusual in the failure of the complainants to look into the veracity of the promises made by the appellant. Being inexperienced and titillated by the prospect of travelling to the vaunted lands of milk and honey (here, petrodollars or Singaporean dollars), they fell easy prey to appellant's glibness and roseate promises. 32 Deluded into relying on appellant's assurances that receipts for their money would be issued later, they naturally did not press the matter further until it was too late.

A certificate from DOLE was also presented stating that no record exists of a license or authority for the period from June, 1988 to September, 1988 having been granted to appellant to recruit workers for overseas employment. 33 Private complainants only discovered much later that appellant did not have the necessary permit from the DOLE. Since good faith is always presumed, private complainants were entitled to assume that appellant was acting in good faith when she presented herself as a recruiter for overseas employment. 34 Appellant's letter of October 27, 1988, addressed to Hermogeno, shows that she was in fact intimately involved with the entire recruitment process, as shown in pertinent portions thereof with emphases indicated by us: Dear Emma, Wag ka sanang magagalit sa akin kung umalis man ako ngayon umaga papuntang (D)aet. Pero (E)mma mamayang gabi sasakay ako papuntang (M)aynila sa (D)aet na ako sasakay. Siya nga pala Emma, pagbalik ko sa (M)artes 11-1-88 dala ko na yong passport ninyo at saka yong pera ninyo . Alam mo Emma hindi ko kayo linuluko iyan sana ang isipin ninyo. Alam ko magagalit na naman kayo sa akin dahil hindi ako makakapunta sa bahay nila (M)anay (D)elia. xxx xxx xxx Sa tutuo lang Emma hindi naman ako nag puproblema dahil yong perang ibinigay ko kay (T)ess (D)imasalang ibabalik rin sa akin . xxx xxx xxx . . . sana ikaw na ang bahalang mag sabi kay Manay Lydia kay Manay Delia at saka kay Pura.5 Said letter is of determinative significance for the prosecution's case because it corroborated the statements of the four complainants. First, if the denial of the appellant that she did not recruit any of the complainants is credible, why did her note contain a promise that upon her return to Iriga City, she would be bringing their passports? Second, the message in the letter was clearly meant not only for Hermogeno but also for the other three complainants. Surely, it is more than a coincidence that the persons for whom the letter (which is actually a plea by Lucille for their patience) was intended are the very same persons who are the complainants in the case at bar. Third, the letter confirms the version of the complainants that when they were already having doubts on the veracity of appellant's claim, they insisted in coming along to Manila but despite their insistence, Lucille left without them. Fourth, it will be noted that appellant had an inkling that private complainants were already entertaining thoughts that they were beguiled, thus her assurance that she had no intention to fool them. Fifth, there was also an admission by appellant that indeed money changed hands between

complainants and her, and then allegedly with Dimasalang, otherwise why would she assure them that the money she allegedly gave to Dimasalang will be returned? More telling in exposing the lack of credibility of appellant are her nonchalant denials of having received large amounts from private respondents. However, the records show that she signed promissory notes in favor of Delia Velasco for P14,000.00, as well as one in favor of Emma Concepcion-Hermogeno amounting to P15,000.00. If she did not sign these two promissory notes, why did she give a refund of P2,900.00 to Hermogeno and P9,000.00 to Velasco? Thus, in People vs. Flores, 36 this Court held that "petitioner's claim that she did not receive the amounts from Oval and de Jesus deserves scant consideration. Why would she give a refund of P1,000.00 to Oval and promise to return the rest of the amount she received if indeed she did not demand and receive the P5,000.00 from Oval?" Appellant's propensity to make up stories to absolve herself, which ultimately proved to be her undoing, is further demonstrated by an incident on September 27, 1989 when, as a detention prisoner at that time, she wrote to P/Cpl. Bienvenido Magistrado, Jail Warden of the INP HGS at Iriga City, informing the latter that she was five months pregnant. Apologizing for not informing him earlier of her condition, she wrote him a letter seeking his help. 37 However, appellant later denied that she personally wrote that letter, saying that she asked a codetention prisoner named Elsie to write the letter for her. That is the farthest from the truth. The daily roster of sentenced/detention prisoners at the time the letter was written which was introduced during the trial by the prosecution, shows that Cell No. 2 where appellant was incarcerated had only one female detainee and that was appellant. However, the document not having been formally offered as an exhibit nor even marked as one during the trial, the same can not be given evidentiary value since the court shall consider no evidence which has not been formally offered. 38 Be that as it may, P/Cpl. Magistrado testified that Lucille Sendon was the only female prisoner in Cell No. 2 on September 27, 1989. He also declared that her personally confronted her about the letter and she admitted that she wrote the letter. 39 Said testimony was not contradicted on cross-examination nor did appellant proffer any evidence to the contrary. Additionally, having received quite a number of short notes from Lucille requesting permission to visit her child or go to some place during her detention and having acted them on them, Magistrado was familiar with her handwriting, 40 and was competent to prove that fact. 41 The foregoing episode is narrated at length for it reveals the character of the appellant, not only as a devious schemer, but one who is highly capable of prevarications and tergiversations as long as they would subserve her purposes. It also exposes her ability to strike a guiltless pose and her gift for deception by which she succeeded in divesting the complainants of their hard-earned money. Finally, we take judicial notice of the fact that appellant had previously been convicted by this Court of illegal recruitment in large scale, 42 which decidedly bolsters the present charges against her. A reading of the aforestated case shows that appellant used the same modus

operandi to deceive her victims. Not surprisingly, the same defense of denial was also used by appellant in said case, but which was not accorded any merit by the trial court and by this Court. Having falsely and unlawfully presented herself to the public at large as a licensed recruiter and having again victimized persons in the cases at bar, appellant Lucille Sendon is guilty beyond reasonable doubt of illegal recruitment in large scale and must suffer the consequences thereof. Indeed, the continuing incidence of such nefarious acts rationalizes the severe penalties therefor under the axiom that extreme situations require extreme remedies. WHEREFORE, the judgment of the court a quo finding accused-appellant Lucille Sendon guilty beyond reasonable doubt of illegal recruitment in large scale and imposing the corresponding penalties and civil liabilities therefor is hereby AFFIRMED. SO ORDERED. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 93666 April 22, 1991 GENERAL MILLING CORPORATION and EARL TIMOTHY CONE, petitioners, vs. HON. RUBEN D. TORRES, in his capacity as Secretary of Labor and Employment, HON. BIENVENIDO E. LAGUESMA, in his capacity as Acting Secretary of Labor and Employment, and BASKETBALL COACHES ASSOCIATION OF THE PHILIPPINES, respondents. Sobrevinas, Diaz, Hayudini & Bodegon Law Office for petitioners. Rodrigo, Cuevas & De Borja for respondent BCAP. RESOLUTION FELICIANO, J.: On 1 May 1989, the National Capital Region of the Department of Labor and Employment issued Alien Employment Permit No. M-0689-3-535 in favor of petitioner Earl Timothy Cone, a United States citizen, as sports consultant and assistant coach for petitioner General Milling Corporation ("GMC").

On 27 December 1989, petitioners GMC and Cone entered into a contract of employment whereby the latter undertook to coach GMC's basketball team. On 15 January 1990, the Board of Special Inquiry of the Commission on Immigration and Deportation approved petitioner Cone's application for a change of admission status from temporary visitor to pre-arranged employee. On 9 February 1990, petitioner GMC requested renewal of petitioner Cone's alien employment permit. GMC also requested that it be allowed to employ Cone as full-fledged coach. The DOLE Regional Director, Luna Piezas, granted the request on 15 February 1990. On 18 February 1990, Alien Employment Permit No. M-02903-881, valid until 25 December 1990, was issued. Private respondent Basketball Coaches Association of the Philippines ("BCAP") appealed the issuance of said alien employment permit to the respondent Secretary of Labor who, on 23 April 1990, issued a decision ordering cancellation of petitioner Cone's employment permit on the ground that there was no showing that there is no person in the Philippines who is competent, able and willing to perform the services required nor that the hiring of petitioner Cone would redound to the national interest. Petitioner GMC filed a Motion for Reconsideration and two (2) Supplemental Motions for Reconsideration but said Motions were denied by Acting Secretary of Labor Bienvenido E. Laguesma in an Order dated 8 June 1990. Petitioners are now before the Court on a Petition for Certiorari, dated 14 June 1990, alleging that: 1. respondent Secretary of Labor gravely abused his discretion when he revoked petitioner Cone's alien employment permit; and 2. Section 6 (c), Rule XIV, Book I of the Omnibus Rules Implementing the Labor Code is null and void as it is in violation of the enabling law as the Labor Code does not empower respondent Secretary to determine if the employment of an alien would redound to national interest. Deliberating on the present Petition for Certiorari, the Court considers that petitioners have failed to show any grave abuse of discretion or any act without or in excess of jurisdiction on the part of respondent Secretary of Labor in rendering his decision, dated 23 April 1990, revoking petitioner Cone's Alien Employment Permit. The alleged failure to notify petitioners of the appeal filed by private respondent BCAP was cured when petitioners were allowed to file their Motion for Reconsideration before respondent Secretary of Labor. 1

Petitioner GMC's claim that hiring of a foreign coach is an employer's prerogative has no legal basis at all. Under Article 40 of the Labor Code, an employer seeking employment of an alien must first obtain an employment permit from the Department of Labor. Petitioner GMC's right to choose whom to employ is, of course, limited by the statutory requirement of an alien employment permit. Petitioners will not find solace in the equal protection clause of the Constitution. As pointed out by the Solicitor-General, no comparison can be made between petitioner Cone and Mr. Norman Black as the latter is "a long time resident of the country," and thus, not subject to the provisions of Article 40 of the Labor Code which apply only to "non-resident aliens." In any case, the term "non-resident alien" and its obverse "resident alien," here must be given their technical connotation under our law on immigration. Neither can petitioners validly claim that implementation of respondent Secretary's decision would amount to an impairment of the obligations of contracts. The provisions of the Labor Code and its Implementing Rules and Regulations requiring alien employment permits were in existence long before petitioners entered into their contract of employment. It is firmly settled that provisions of applicable laws, especially provisions relating to matters affected with public policy, are deemed written into contracts. 2 Private parties cannot constitutionally contract away the otherwise applicable provisions of law. Petitioners' contention that respondent Secretary of Labor should have deferred to the findings of Commission on Immigration and Deportation as to the necessity of employing petitioner Cone, is, again, bereft of legal basis. The Labor Code itself specifically empowers respondent Secretary to make a determination as to the availability of the services of a "person in the Philippines who is competent, able and willing at the time of application to perform the services for which an alien is desired." 3 In short, the Department of Labor is the agency vested with jurisdiction to determine the question of availability of local workers. The constitutional validity of legal provisions granting such jurisdiction and authority and requiring proof of non-availability of local nationals able to carry out the duties of the position involved, cannot be seriously questioned. Petitioners apparently also question the validity of the Implementing Rules and Regulations, specifically Section 6 (c), Rule XIV, Book I of the Implementing Rules, as imposing a condition not found in the Labor Code itself. Section 6 (c), Rule XIV, Book I of the Implementing Rules, provides as follows: Section 6. Issuance of Employment Permit the Secretary of Labor may issue an employment permit to the applicant based on: a) Compliance by the applicant and his employer with the requirements of Section 2 hereof;

b) Report of the Bureau Director as to the availability or non-availability of any person in the Philippines who is competent and willing to do the job for which the services of the applicant are desired. (c) His assessment as to whether or not the employment of the applicant will redound to the national interest; (d) Admissibility of the alien as certified by the Commission on Immigration and Deportation; (e) The recommendation of the Board of Investments or other appropriate government agencies if the applicant will be employed in preferred areas of investments or in accordance with the imperative of economic development; xxx xxx xxx (Emphasis supplied) Article 40 of the Labor Code reads as follows: Art. 40. Employment per unit of non-resident aliens . Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the Department of Labor. The employment permit may be issued to a non-resident alien or to the applicant employer after a determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired. For an enterprise registered in preferred areas of investments, said employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise. (Emphasis supplied) Petitioners apparently suggest that the Secretary of Labor is not authorized to take into account the question of whether or not employment of an alien applicant would "redound to the national interest" because Article 40 does not explicitly refer to such assessment. This argument (which seems impliedly to concede that the relationship of basketball coaching and the national interest is tenuous and unreal) is not persuasive. In the first place, the second paragraph of Article 40 says: "[t]he employment permit may be issued to a non-resident alien or to the applicant employer after a determination of the non-availability of a person in the Philippines

who is competent, able and willing at the time of application to perform the services for which the alien is desired." The permissive language employed in the Labor Code indicates that the authority granted involves the exercise of discretion on the part of the issuing authority. In the second place, Article 12 of the Labor Code sets forth a statement of objectives that the Secretary of Labor should, and indeed must, take into account in exercising his authority and jurisdiction granted by the Labor Code, Art. 12. Statement of Objectives. It is the policy of the State: a) To promote and maintain a state of full employment through improved manpower training, allocation and utilization; xxx xxx xxx c) To facilitate a free choice of available employment by persons seeking work in conformity with the national interest; d) To facilitate and regulate the movement of workers in conformity with the national interest; e) To regulate the employment of aliens, including the establishment of a registration and/or work permit system; xxx xxx xxx Thus, we find petitioners' arguments on the above points of constitutional law too insubstantial to require further consideration. Petitioners have very recently manifested to this Court that public respondent Secretary of Labor has reversed his earlier decision and has issued an Employment Permit to petitioner Cone. Petitioners seek to withdraw their Petition for Certiorari on the ground that it has become moot and academic. While ordinarily this Court would dismiss a petition that clearly appears to have become moot and academic, the circumstances of this case and the nature of the questions raised by petitioners are such that we do not feel justified in leaving those questions unanswered. 4 Moreover, assuming that an alien employment permit has in fact been issued to petitioner Cone, the basis of the reversal by the Secretary of Labor of his earlier decision does not appear in the record. If such reversal is based on some view of constitutional law or labor law different from those here set out, then such employment permit, if one has been issued, would appear open to serious legal objections.

ACCORDINGLY, the Court Resolved to DISMISS the Petition for certiorari for lack of merit. Costs against petitioners.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 100641 June 14, 1993 FARLE P. ALMODIEL, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION (FIRST DIVISION), RAYTHEON PHILS., INC., respondents. Apolinario Lomabao, Jr. for petitioner. Vicente A. Cruz, Jr., for private respondent. NOCON, J.: Subject of this petition for certiorari is the decision dated March 21, 1991 of the National Labor Relations Commission in NLRC Case No. 00-00645-89 which reversed and set aside the Labor Arbiter's decision dated September 27, 1989 and ordered instead the payment of separation pay and financial assistance of P100,000.00. Petitioner imputes grave abuse of discretion on the part of the Commission and prays for the reinstatement of the Labor Arbiter's decision which declared his termination on the ground of redundancy illegal. Petitioner Farle P. Almodiel is a certified public accountant who was hired in October, 1987 as Cost Accounting Manager of respondent Raytheon Philippines, Inc. through a reputable placement firm, John Clements Consultants, Inc. with a starting monthly salary of P18,000.00. Before said employment, he was the accounts executive of Integrated Microelectronics, Inc. for several years. He left his lucrative job therein in view of the promising career offered by Raytheon. He started as a probationary or temporary employee. As Cost Accounting Manager, his major duties were: (1) plan, coordinate and carry out year and physical inventory; (2) formulate and issue out hard copies of Standard Product costing and other cost/pricing analysis if needed and required and (3) set up the written Cost Accounting System for the whole company. After a few months, he was given a regularization increase of P1,600.00 a month. Not long thereafter, his salary was increased to P21,600.00 a month. On August 17, 1988, he recommended and submitted a Cost Accounting/Finance Reorganization, affecting the whole finance group but the same was disapproved by the Controller. However, he was assured by the Controller that should his position or department

which was apparently a one-man department with no staff becomes untenable or unable to deliver the needed service due to manpower constraint, he would be given a three (3) year advance notice. In the meantime, the standard cost accounting system was installed and used at the Raytheon plants and subsidiaries worldwide. It was likewise adopted and installed in the Philippine operations. As a consequence, the services of a Cost Accounting Manager allegedly entailed only the submission of periodic reports that would use computerized forms prescribed and designed by the international head office of the Raytheon Company in California, USA. On January 27, 1989, petitioner was summoned by his immediate boss and in the presence of IRD Manager, Mr. Rolando Estrada, he was told of the abolition of his position on the ground of redundancy. He pleaded with management to defer its action or transfer him to another department, but he was told that the decision of management was final and that the same has been conveyed to the Department of Labor and Employment. Thus, he was constrained to file the complaint for illegal dismissal before the Arbitration Branch of the National Capital Region, NLRC, Department of Labor and Employment. On September 27, 1989, Labor Arbiter Daisy Cauton-Barcelona rendered a decision, the dispositive portion of which reads as follows: WHEREFORE, judgment is hereby rendered declaring that complainant's termination on the ground of redundancy is highly irregular and without legal and factual basis, thus ordering the respondents to reinstate complainant to his former position with full backwages without lost of seniority rights and other benefits. Respondents are further ordered to pay complainant P200,000.00 as moral damages and P20,000.00 as exemplary damages, plus ten percent (10%) of the total award as attorney's fees. 1 Raytheon appealed therefrom on the grounds that the Labor Arbiter committed grave abuse of discretion in denying its rights to dismiss petitioner on the ground of redundancy, in relying on baseless surmises and self-serving assertions of the petitioner that its act was tainted with malice and bad faith and in awarding moral and exemplary damages and attorney's fees. On March 21, 1991, the NLRC reversed the decision and directed Raytheon to pay petitioner the total sum of P100,000.00 as separation pay/financial assistance. The dispositive portion of which is hereby quoted as follows: WHEREFORE, the appealed decision is hereby set aside. In its stead, Order is hereby issued directing respondent to pay complainant the total separation pay/financial assistance of One Hundred Thousand Pesos (P100,000.00). SO ORDERED. 2 From this decision, petitioner filed the instant petition averring that:

The public respondent committed grave abuse of discretion amounting to (lack of) or in excess of jurisdiction in declaring as valid and justified the termination of petitioner on the ground of redundancy in the face of clearly established finding that petitioner's termination was tainted with malice, bad faith and irregularity. 3 Termination of an employee's services because of redundancy is governed by Article 283 of the Labor Code which provides as follows: Art. 283. Closure of establishment and reduction of personnel. The employer may also terminate the employment of any employee due to installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the worker and the Department of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closure or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to at least one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered as one (1) whole year. There is no dispute that petitioner was duly advised, one (1) month before, of the termination of his employment on the ground of redundancy in a written notice by his immediate superior, Mrs. Magdalena B.D. Lopez sometime in the afternoon of January 27, 1989. He was issued a check for P54,863.00 representing separation pay but in view of his refusal to acknowledge the notice and the check, they were sent to him thru registered mail on January 30, 1989. The Department of Labor and Employment was served a copy of the notice of termination of petitioner in accordance with the pertinent provisions of the Labor Code and the implementing rules. The crux of the controversy lies on whether bad faith, malice and irregularity crept in the abolition of petitioner's position of Cost Accounting Manager on the ground of redundancy. Petitioner claims that the functions of his position were absorbed by the Payroll/Mis/Finance Department under the management of Danny Ang Tan Chai, a resident alien without any working permit from the Department of Labor and Employment as required by law. Petitioner relies on the testimony of Raytheon's witness to the effect that corollary functions appertaining to cost accounting were dispersed to other units in the Finance Department. And granting that his department has to be declared redundant, he claims that he should have been the Manager of the Payroll/Mis/Finance Department which handled general accounting, payroll and encoding. As a B. S. Accounting graduate, a CPA with M.B.A. units, 21 years of work experience, and a natural born Filipino, he claims that he is better qualified than Ang Tan Chai, a B.S. Industrial Engineer, hired merely as a Systems Analyst Programmer or its

equivalent in early 1987, promoted as MIS Manager only during the middle part of 1988 and a resident alien. On the other hand, Raytheon insists that petitioner's functions as Cost Accounting Manager had not been absorbed by Ang Tan Chai, a permanent resident born in this country. It claims to have established below that Ang Tan Chai did not displace petitioner or absorb his functions and duties as they were occupying entirely different and distinct positions requiring different sets of expertise or qualifications and discharging functions altogether different and foreign from that of petitioner's abolished position. Raytheon debunks petitioner's reliance on the testimony of Mr. Estrada saying that the same witness testified under oath that the functions of the Cost Accounting Manager had been completely dispensed with and the position itself had been totally abolished. Whether petitioner's functions as Cost Accounting Manager have been dispensed with or merely absorbed by another is however immaterial. Thus, notwithstanding the dearth of evidence on the said question, a resolution of this case can be arrived at without delving into this matter. For even conceding that the functions of petitioner's position were merely transferred, no malice or bad faith can be imputed from said act. A survey of existing case law will disclose that in Wiltshire File Co., Inc. v. NLRC, 4 the position of Sales Manager was abolished on the ground of redundancy as the duties previously discharged by the Sales Manager simply added to the duties of the General Manager to whom the Sales Manager used to report. In adjudging said termination as legal, this Court said that redundancy, for purposes of our Labor Code, exists where the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise. The characterization of an employee's services as no longer necessary or sustainable, and therefore, properly terminable, was an exercise of business judgment on the part of the employer. The wisdom or soundness of such characterization or decision was not subject to discretionary review on the part of the Labor Arbiter nor of the NLRC so long, of course, as violation of law or merely arbitrary and malicious action is not shown. In the case of International Macleod, Inc. v. Intermediate Appellate Court , 5 this Court also considered the position of Government Relations Officer to have become redundant in view of the appointment of the International Heavy Equipment Corporation as the company's dealer with the government. It held therein that the determination of the need for the phasing out of a department as a labor and cost saving device because it was no longer economical to retain said services is a management prerogative and the courts will not interfere with the exercise thereof as long as no abuse of discretion or merely arbitrary or malicious action on the part of management is shown. In the same vein, this Court ruled in Bondoc v. People's Bank and Trust Co., 6 that the bank's board of directors possessed the power to remove a department manager whose position depended on the retention of the trust and confidence of management and whether there was need for his services. Although some vindictive motivation might have impelled the abolition of his position, this Court expounded that it is undeniable that the bank's board of directors possessed the power to remove him and to determine whether the interest of the bank justified the existence of his department.

Indeed, an employer has no legal obligation to keep more employees than are necessary for the operation of its business. Petitioner does not dispute the fact that a cost accounting system was installed and used at Raytheon subsidiaries and plants worldwide; and that the functions of his position involve the submission of periodic reports utilizing computerized forms designed and prescribed by the head office with the installation of said accounting system. Petitioner attempts to controvert these realities by alleging that some of the functions of his position were still indispensable and were actually dispersed to another department. What these indispensable functions that were dispersed, he failed however, to specify and point out. Besides, the fact that the functions of a position were simply added to the duties of another does not affect the legitimacy of the employer's right to abolish a position when done in the normal exercise of its prerogative to adopt sound business practices in the management of its affairs. Considering further that petitioner herein held a position which was definitely managerial in character, Raytheon had a broad latitude of discretion in abolishing his position. An employer has a much wider discretion in terminating employment relationship of managerial personnel compared to rank and file employees. 7 The reason obviously is that officers in such key positions perform not only functions which by nature require the employer's full trust and confidence but also functions that spell the success or failure of an enterprise. Likewise destitute of merit is petitioner's imputation of unlawful discrimination when Raytheon caused corollary functions appertaining to cost accounting to be absorbed by Danny Ang Tan Chai, a resident alien without a working permit. Article 40 of the Labor Code which requires employment permit refers to non-resident aliens. The employment permit is required for entry into the country for employment purposes and is issued after determination of the nonavailability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired. Since Ang Tan Chai is a resident alien, he does not fall within the ambit of the provision. Petitioner also assails Raytheon's choice of Ang Tan Chai to head the Payroll/Mis/Finance Department, claiming that he is better qualified for the position. It should be noted, however, that Ang Tan Chai was promoted to the position during the middle part of 1988 or before the abolition of petitioner's position in early 1989. Besides the fact that Ang Tan Chai's promotion thereto is a settled matter, it has been consistently held that an objection founded on the ground that one has better credentials over the appointee is frowned upon so long as the latter possesses the minimum qualifications for the position. In the case at bar, since petitioner does not allege that Ang Tan Chai does not qualify for the position, the Court cannot substitute its discretion and judgment for that which is clearly and exclusively management prerogative. To do so would take away from the employer what rightly belongs to him as aptly explained in National Federation of Labor Unions v. NLRC : 8 It is a well-settled rule that labor laws do not authorize interference with the employer's judgment in the conduct of his business. The determination of the qualification and fitness of workers for hiring and firing, promotion or reassignment are exclusive prerogatives of management. The Labor Code and its implementing Rules do not vest in the Labor Arbiters nor in the different Divisions of the NLRC

(nor in the courts) managerial authority. The employer is free to determine, using his own discretion and business judgment, all elements of employment, "from hiring to firing" except in cases of unlawful discrimination or those which may be provided by law. There is none in the instant case. Finding no grave abuse of discretion on the part of the National Labor Relations Commission in reversing and annulling the decision of the Labor Arbiter and that on the contrary, the termination of petitioner's employment was anchored on a valid and authorized cause under Article 283 of the Labor Code, the instant petition for certiorarimust fail. SO ORDERED.