JOHNSON & JOHNSON (PHILS.), INC.

, JANSSEN PHARMACEUTICA, AND/OR RAFAEL BESA, Petitioners,

G.R. No. 172799 The instant petition for review on certiorari under Rule 45 of Present: the 1997 Rules of Civil Procedure seeks the reversal of the Decision dated 31 January 2006 and Resolution dated 23 May 2006 of the Court of Appeals in CA-G.R. SP No. 86963. The Court of Appeals QUISUMBING, J., Chairperson, CARPIO, Decision affirmed two resolutions of the National Labor Relations Commission (NLRC) directing the reinstatement of respondents Ma. Jesusa Bonsol and Rizalinda Hirondo to their former positions in Johnson & Johnson (Phils.), Inc. while the Resolution denied petitioners motion for reconsideration.

- versus -

CARPIO MORALES, The instant petition originated from the complaint for illegal TINGA, and VELASCO, JR., JJ. dismissal filed by respondents Ma. Jesusa Bonsol and Rizalinda Hirondo against petitioners Johnson & Johnson (Phils.), Inc. and Janssen Pharmaceutica, one of the formers divisions. On 11 November 1999, the Labor Arbiter dismissed the complaint, Promulgated: prompting respondents to elevate the matter to the NLRC. On 14 December 2001, the NLRC rendered a Resolution, modifying the decision of the Labor Arbiter. The NLRC ruled that the violations of July 6, 2007 company procedure committed by respondents did not constitute serious misconduct or willful disobedience warranting their dismissal; hence, respondents were entitled to reinstatement.

JOHNSON OFFICE & SALES UNIONFEDERATION OF FREE WORKERS (FFW), MA. JESUSA BONSOL and RIZALINDA HIRONDO, Respondents.

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

The dispositive portion of the Resolution reads in part: WHEREFORE, premises considered, the instant Appeal is hereby PARTIALLY GRANTED. Accordingly, the Decision appealed from is hereby MODIFIED to the effect complainants-appellants [private respondents] were illegally dismissed; that they are entitled to reinstatement to their respective former position[s] without loss of seniority rights and privileges but without any backwages or in the alternative, to payment of separation pay each

DECISION

TINGA, J.:

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

2. Attorneys Fees: P12,000.00 + 1,972.60 x 10% 1,397.26 P39,369.86 P111,082.18 GRAND TOTAL

The foregoing awarded claim of Complainants-Appellants are computed as follows: 1. Ma. Jesusa Bonsol Salary: P15,000/mo. 1. Separation Pay: From May 1992 to Dec. 28, 1998 7 yrs. P15,000.00 x 7 yrs. x [m]o. P52,500.00 15,000.00 2. 13th Month Pay Service Incentive Leave Pay: P15,000 x 12 / 365 = P493.15 x 5 day 2,465.75 2. Attorneys Fees: P15,000.00 + 2,4465.75 x 10% 1,746.57 Total P71,712.32

========= As regards the other issues, the Decision is SUSTAINED. SO ORDERED.

Petitioners sought partial reconsideration but the NLRC denied the motion in a Resolution dated 11 February 2002. Neither party appealed from the resolution decision of the NLRC within the reglementary period. The Resolution dated 14 December 2001 became final and executory. On 5 March 2002, petitioners filed a Motion to Set Case for Conference before the NLRC, manifesting their willingness to pay respondents separation pay and other monetary awards. According to petitioners, in the conferences called by the NLRC, none of the respondents were in attendance. The Labor Arbiter even suggested to petitioners to prepare the check payment. Instead, in a motion dated 18 December 2002, respondents sought the issuance of a writ of execution to implement the Resolution dated 14 December 2001 and prayed for their immediate reinstatement to their former positions. Petitioners opposed the motion.

2. Rizalinda Hirondo Salary: P12,000/mo. 1. Separation Pay: From April 17, 1995 to December 28, 1998 = 4 yrs. P12,000 x 4 yrs. x mo. P24,000.00 12,000.00 1,972.60 2. 13th Month Pay Service Incentive Leave Pay: P12,000 x 12 / 265 = P394.52 x 5 days

At the conference held on 31 March 2004, petitioners reiterated their intention to satisfy respondents monetary award but the latter refused and insisted on their reinstatement. Thereafter, petitioners filed a Manifestation and Motion, arguing that the 14 December 2001 Resolution granted petitioners the right to choose between the payment of separation pay and the reinstatement of respondents based on the finding that while their termination was illegal, respondents were not entirely faultless as they did not follow the exact procedure in the performance of their duties. Petitioners also claimed that reinstatement was no longer feasible in view of the strained relations between the parties. On 18 June 2004, the NLRC issued a Resolution, which directed the reinstatement of respondents pursuant to the 14 December 2001 Resolution. The NLRC recognized respondents right to choose between reinstatement and separation pay and disregarded petitioners claim of strained relations. Petitioners motion for reconsideration was denied in the Resolution dated 28 July 2004 Aggrieved, petitioners filed a petition for certiorari with the Court of Appeals. They contended that respondents Motion for the Issuance of a Writ of Execution had the effect of altering the 14 December 2001 Resolution, which had already become final and executory and which clearly granted petitioners the option to either reinstate respondents to their former positions or to pay the monetary award. Petitioners also argued against respondents reinstatement in view of the strained relations between the parties.

the resolutions of the NLRC dated 18 June 2004 and 28 July 2004. On 23 May 2006, the Court of Appeals denied petitioners motion for reconsideration. Hence, the instant petition, imputing the following errors on the Court of Appeals: I. THE HONORABLE COURT OF APPEALS DISREGARDED THE LITERAL IMPORT AND SPIRIT OF THE NLRCS RESOLUTION DATED 14 DECEMBER 2001 WHICH GIVES TO PETITIONERS THE EXCLUSIVE OPTION WHETHER TO REINSTATE INDIVIDUAL RESPONDENTS TO THEIR FORMER POSITIONS OR TO GRANT THEM SEPARATION PAY IN LIEU OF REINSTATEMENT. II. THE HONORABLE COURT OF APPEALS CONTRADICTED ITS OWN FINDING THAT THE DECISION OF THE NLRC DATED 14 DECEMBER 2001 IS ALREADY FINAL AND EXECUTORY WHEN IT MODIFIED THE LITERAL IMPORT OF SAID DECISION BY HOLDING THAT THE OPTION TO CHOOSE BETWEEN REINSTATEMENT OR SEPARATION PAY BELONGS TO THE INDIVIDUAL RESPONDENTS. III. THE HONORABLE COURT OF APPEALS SHOULD HAVE RULED THAT THE REINSTATEMENT OF INDIVIDUAL RESPONDENTS TO THEIR FORMER POSITIONS IS NO LONGER POSSIBLE IN VIEW OF THE FACT THAT THE RELATIONS BETWEEN THE PARTIES HAD BECOME SO STRAINED THAT REINSTATEMENT WILL NO LONGER BE TO THE BEST INTERESTS [sic] OF ALL CONCERNED.

Petitioners contend that the intent of the 14 December 2001 Resolution was to grant petitioners the option to reinstate respondents to their former positions without the payment of backwages, or in the alternative, to pay them separation pay, because the dispositive portion of the Resolution was directed toward or addressed to petitioners, who are legally obliged to

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

implement the ruling. According to petitioners, the NLRC erred and modified the Resolution dated 14 December 2001, which had become final and executory, when it stated in its 18 June 2004 Resolution that respondents have the right to choose between their reinstatement and getting paid the monetary award when no such categorical pronouncement can be gathered from the 14 December 2001 Resolution. The petition has no merit. Well-entrenched is the rule that an illegally dismissed employee is entitled to reinstatement as a matter of right. Over the years, however, case law developed that where reinstatement is not feasible, expedient or practical, as where reinstatement would only exacerbate the tension and strained relations between the parties, or where the relationship between the employer and employee has been unduly strained by reason of their irreconcilable differences, particularly where the illegally dismissed employee held a managerial or key position in the company, it would be more prudent to order payment of separation pay instead of reinstatement. In other words, the payment of separation compensation in lieu of the reinstatement of an employee who was illegally dismissed from work shall be allowed if and only if the employer can prove the existence of circumstances showing that reinstatement will no longer be for the mutual benefit of the employer and employee. The NLRC Resolution dated 14 December 2001 expressly recognized respondents right to reinstatement in view of the illegality of their termination. Thus, the dispositive portion of said

resolution ordered respondents reinstatement without, however, the payment of backwages as a primary relief. Petitioners are mistaken in holding that they have the prerogative to choose whether to reinstate respondents to their former positions or to just pay their monetary award. Neither party can claim that it has the categorical right to choose between reinstatement and the payment of the monetary award. Ultimately, the NLRC has the authority to execute its judgment and to settle any issue that may arise pertaining to the manner or details of implementing its judgment. In the instant case, although the opposing parties yielded to the judgment of the NLRC and did not anymore elevate the labor dispute to the appellate court, they are now at odds as to how the 14 December 2001 Resolution should be implemented. Thus, the NLRC properly exercised its authority to resolve the controversy when it issued the Resolution dated 18 June 2004, where it categorically ordered the reinstatement of respondents to their former positions, in consonance with its earlier ruling. The NLRC upheld the continuing primacy of reinstatement as the available relief and made short shrift of petitioners avowal that separation pay should be awarded in lieu of reinstatement. Effectively, the NLRC and the Court of Appeals disregarded petitioners claim that the relation between the parties was so strained that only the payment of the monetary award was feasible under the circumstances. The Court defers, as it should, to the common finding of the NLRC and Court of Appeals since the issue of the existence of strained relations between the parties is factual in nature.

The subsequent resolution did not in any manner modify the 14 December 2001 Resolution, which had become final and executory, contrary to petitioners contention, because the dispositive portion of the 14 December 2001 Resolution particularly stated that respondents were entitled to reinstatement to their former positions. In other words, the primary relief granted to respondents was reinstatement to their former positions. What constitutes an alteration of a final and executory judgment is when a court or, in the instant case, the NLRC, executes an award that is not among those stated in the dispositive portion of the judgment. That is not the case here. That the dispositive portion of the 14 December 2001 Resolution contained the phrase or in the alternative, [private respondents are entitled] to payment of separation pay x x x does not mean that petitioners were granted the option to pay the separation pay in lieu of reinstating respondents. More than anything else, the statement was in the nature of an affirmation of the state of the law rather than an adjudication of a right in favor of petitioners. Moreover, a reading of a courts judgment must not be confined to the dispositive portion alone; rather, it should be meaningfully construed in unanimity with the ratio decidendi thereof to grasp the true intent and meaning of a decision. A reading of the Resolution dated 14 December 2001 shows that after finding that respondents termination was illegal, the NLRC held that they were entitled to reinstatement, thus: Having been illegally dismissed as comprehensively discussed above, complainantsappellants are normally entitled to reinstatement to their respective former positions without loss of seniority rights and privileges and to payment of backwages and other benefits.

However, inasmuch, as they are not entirely faultless as they did not follow exact procedures in the performance of their duties in the instant case, like paying for medicines immediately upon their being pulled out of Alstar, not later on, and paying with checks belonging to their customers, not with their personal checks, Complainants-Appellants should thus be reinstated to their former position without loss of seniority rights and previliges [sic] but without any backwages whatsoever or in the alternative, should thus be paid separation pay each equivalent to one-half (1/2) month pay for every year of service. The NLRC ruling expressly recognized respondents

entitlement to reinstatement because of the illegality of their dismissal, although they were no longer entitled to backwages. As found by the NLRC, respondents violated certain company policies, the effect of which was the forfeiture of the award of backwages. Petitioners argue that the aforementioned finding of the NLRC that respondents were not entirely blameless grants them the right to choose between reinstating respondents or giving them separation pay. Nothing in the body of the 14 December 2001 Resolution supports petitioners conclusion. As already stated, the finding of the NLRC that respondents were not entirely faultless merely caused them the forfeiture of their backwages and did not deny them reinstatement to their former positions. WHEREFORE, the instant petition for review on certiorari is DENIED and the Decision dated 31 January 2006 and Resolution dated 23 May 2006 of the Court of Appeals in CA-G.R. SP No. 86963 are AFFIRMED. Costs against petitioners. SO ORDERED.

[G.R. No. 175366, August 11, 2008] J-PHIL MARINE, INC. AND/OR JESUS CANDAVA AND NORMAN SHIPPING SERVICES, PETITIONERS, VS. NATIONAL LABOR RELATIONS COMMISSION AND WARLITO E. DUMALAOG, RESPONDENTS CARPIO MORALES, J.: Warlito E. Dumalaog (respondent), who served as cook aboard vessels plying overseas, filed on March 4, 2002 before the National Labor Relations Commission (NLRC) a pro-forma complaint[1] against petitioners manning agency J-Phil Marine, Inc. (J-Phil), its then president Jesus Candava, and its foreign principal Norman Shipping Services for unpaid money claims, moral and exemplary damages, and attorney's fees. Respondent thereafter filed two amended pro forma complaints[2] praying for the award of overtime pay, vacation leave pay, sick leave pay, and disability/medical benefits, he having, by his claim, contracted enlargement of the heart and severe thyroid enlargement in the discharge of his duties as cook which rendered him disabled. Respondent's total claim against petitioners was P864,343.30 plus P117,557.60 representing interest and P195,928.66 representing attorney's fees.[3]

By Decision[4] of August 29, 2003, Labor Arbiter Fe SuperiasoCellan dismissed respondent's complaint for lack of merit. On appeal,[5] the NLRC, by Decision of September 27, 2004, reversed the LaborArbiter's decision and awarded US$50,000.00 disability benefit to respondent. It dismissed respondent's other claims, however, for lack of basis or jurisdiction.[6] Petitioners' Motion for Reconsideration[7] having been denied by the NLRC,[8] they filed a petition for certiorari[9] before the Court of Appeals. By Resolution[10] of September 22, 2005, the Court of Appeals dismissed petitioners' petition for, inter alia, failure to attach to the petition all material documents, and for defective verification and certification. Petitioners' Motion for Reconsideration of the appellate court's Resolution was denied;[11] hence, they filed the present Petition for Review on Certiorari.

x x x x[15] (Emphasis in the original; underscoring supplied) Respondent's counsel also filed before this Court, purportedly on behalf of respondent, a Comment[16] on the present petition. The parties having forged a compromise agreement as respondent in fact has executed a Quitclaim and Release, the Court dismisses the petition. Article 227 of the Labor Code provides: Any compromise settlement, including those involving labor standard laws, voluntarily agreed upon by the parties with the assistance of the Department of Labor, shall be final and binding upon the parties. The National Labor Relations Commission or any court shall not assume jurisdiction over issues involved therein except in case of non-compliance thereof or if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation, or coercion. (Emphasis and underscoring supplied)

During the pendency of the case before this Court, respondent, against the advice of his counsel, entered into a compromise agreement with petitioners. He thereupon signed a Quitclaim and Release subscribed and sworn to before the Labor Arbiter.[12] On May 8, 2007, petitioners filed before this Court a Manifestation[13] dated May 7, 2007 informing that, inter alia, they and respondent had forged an amicable settlement. On July 2, 2007, respondent's counsel filed before this Court a Comment and Opposition (to Petitioners' Manifestation of May 7, 2007)[14] interposing no objection to the dismissal of the petition but objecting to "the absolution" of petitioners from paying respondent the total amount of Fifty Thousand US Dollars (US$50,000.00) or approximately P2,300,000.00, the amount awarded by the NLRC, he adding that: There being already a payment of P450,000.00, and invoking the doctrine of parens patriae, we pray then [to] this Honorable Supreme Court that the said amount be deducted from the [NLRC] judgment award of US$50,000.00, or approximately P2,300,000.00, and petitioners be furthermore ordered to pay in favor of herein respondent [the] remaining balance thereof.

In Olaybar v. NLRC,[17] the Court, recognizing the conclusiveness of compromise settlements as a means to end labor disputes, held that Article 2037 of the Civil Code, which provides that "[a] compromise has upon the parties the effect and authority of res judicata," applies suppletorily to labor cases even if the compromise is not judicially approved.[18] That respondent was not assisted by his counsel when he entered into the compromise does not render it null and void. Eurotech Hair Systems, Inc. v. Go[19] so enlightens: A compromise agreement is valid as long as the consideration is reasonable and the employee signed the waiver voluntarily, with a full understanding of what he was entering into. All that is required for the compromise to be deemed voluntarily entered into is personal and specific individual consent. Thus, contrary to respondent's contention, the employee's counsel need not be present at the time of the signing of the compromise agreement. [20] (Underscoring supplied)

It bears noting that, as reflected earlier, the Quitclaim and Waiver was subscribed and sworn to before the Labor Arbiter. Respondent's counsel nevertheless argues that "[t]he amount of Four Hundred Fifty Thousand Pesos (P450,000.00) given to respondent on April 4, 2007, as `full and final settlement of judgment award,' is unconscionably low, and un-[C]hristian, to say the least."[21] Only respondent, however, can impugn the consideration of the compromise as being unconscionable. The relation of attorney and client is in many respects one of agency, and the general rules of agency apply to such relation.[22] The acts of an agent are deemed the acts of the principal only if the agent acts within the scope of his authority.[23] The circumstances of this case indicate that respondent's counsel is acting beyond the scope of his authority in questioning the compromise agreement. That a client has undoubtedly the right to compromise a suit without the intervention of his lawyer[24] cannot be gainsaid, the only qualification being that if such compromise is entered into with the intent of defrauding the lawyer of the fees justly due him, the compromise must be subject to the said fees.[25] In the case at bar, there is no showing that respondent intended to defraud his counsel of his fees. In fact, the Quitclaim and Release, the execution of which was witnessed by petitioner J-Phil's president Eulalio C. Candava and one Antonio C. Casim, notes that the 20% attorney's fees would be "paid 12 April 2007 - P90,000." LAGUNA METTS CORPORATION, vs. COURT OF APPEALS CORONA, J.: This petition arose from a labor case filed by private respondents Aries C. Caalam and Geraldine Esguerra against petitioner Laguna Metts Corporation (LMC).[1] The labor arbiter decided in favor of private respondents and found that they were illegally dismissed by G.R. No. 185220

WHEREFORE, the petition is, in light of all the foregoing discussion, DISMISSED. Let a copy of this Decision be furnished respondent, Warlito E. Dumalaog, at his given address at No. 5-B Illinois Street, Cubao, Quezon City. SO ORDERED.

LMC. On appeal, however, the National Labor Relations Commission (NLRC) reversed the decision of the labor arbiter in a decision dated February 21, 2008. Private respondents motion for reconsideration was denied in a resolution dated April 30, 2008. Counsel for private respondents received the April 30, 2008 resolution of the NLRC on May 26, 2008. On July 25, 2008, he filed a motion for extension of time to file petition for certiorari under Rule 65 of the Rules of Court.[2] The motion alleged that, for reasons[3] stated therein, the petition could not be filed in the Court of Appeals within the prescribed 60-day period.[4] Thus, a 15-day extension period was prayed for.[5] In a resolution dated August 7, 2008,[6] the Court of Appeals granted the motion and gave private respondents a non-extendible period of 15 days within which to file their petition for certiorari. LMC moved for the reconsideration of the said resolution claiming that extensions of time to file a petition for certiorari are no longer allowed under Section 4, Rule 65 of the Rules of Court, as amended by A.M. No. 07-7-12-SC dated December 4, 2007.[7] This was denied in a resolution dated October 22, 2008. According to the appellate court, while the amendment of the third paragraph of Section 4, Rule 65 admittedly calls for stricter application to discourage the filing of unwarranted motions for extension of time, it did not strip the Court of Appeals of the discretionary power to grant a motion for extension in exceptional cases to serve the ends of justice. Aggrieved, LMC now assails the resolutions dated August 7, 2008 and October 22, 2008 of the Court of Appeals in this petition for certiorari under Rule 65 of the Rules of Court. It contends that the Court of Appeals committed grave abuse of discretion when it granted private respondents motion for extension of time to file petition for certiorari as the Court of Appeals had no power to grant something that had already been expressly deleted from the rules. We agree. Rules of procedure must be faithfully complied with and should not be discarded with the mere expediency of claiming substantial merit.[8] As a corollary, rules prescribing the time for doing specific acts or for taking certain proceedings are considered absolutely indispensable to prevent needless delays and to orderly and promptly discharge judicial business. By their very nature, these rules are regarded as mandatory.[9]

In De Los Santos v. Court of Appeals,[10] we ruled: Section 4 of Rule 65 prescribes a period of 60 days within which to file a petition for certiorari. The 60-day period is deemed reasonable and sufficient time for a party to mull over and to prepare a petition asserting grave abuse of discretion by a lower court. The period was specifically set to avoid any unreasonable delay that would violate the constitutional rights of the parties to a speedy disposition of their case. (emphasis supplied) While the proper courts previously had discretion to extend the period for filing a petition for certiorari beyond the 60-day period, [11] the amendments to Rule 65 under A.M. No. 07-7-12-SC disallowed extensions of time to file a petition for certiorari with the deletion of the paragraph that previously permitted such extensions. Section 4, Rule 65 previously read: SEC. 4. When and where petition filed. The petition shall be filed not later than sixty (60) days from notice of the judgment or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion. The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, and unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the Court of Appeals. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding 15 days. [12] (emphasis supplied) With its amendment under A.M. No. 07-7-12-SC, it now reads: SEC. 4. When and where to file petition. The petition shall be filed not later than sixty (60) days from notice of the judgment or resolution. In case a motion for reconsideration or new trial is

timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from the notice of the denial of the motion. If the petition relates to an act or an omission of a municipal trial court or of a coporation, a board, an officer or a person, it shall be filed with the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals or with the Sandiganbayan, whether or not the same is in aid of the courts appellate jurisdiction. If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed with and be cognizable only by the Court of Appeals. In election cases involving an act or omission of a municipal or a regional trial court, the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate jurisdiction. As a rule, an amendment by the deletion of certain words or phrases indicates an intention to change its meaning. It is presumed that the deletion would not have been made if there had been no intention to effect a change in the meaning of the law or rule. The amended law or rule should accordingly be given a construction different from that previous to its amendment.[13] If the Court intended to retain the authority of the proper courts to grant extensions under Section 4 of Rule 65, the paragraph providing for such authority would have been preserved. The removal of the said paragraph under the amendment by A.M. No. 07-7-12-SC of Section 4, Rule 65 simply meant that there can no longer be any extension of the 60-day period within which to file a petition for certiorari. The rationale for the amendments under A.M. No. 07-7-12-SC is essentially to prevent the use (or abuse) of the petition for certiorari under Rule 65 to delay a case or even defeat the ends of justice. Deleting the paragraph allowing extensions to file petition on compelling grounds did away with the filing of such motions. As the Rule now stands, petitions for certiorari must be filed strictly within 60 days from notice of judgment or from the order denying a motion for reconsideration. In granting the private respondents motion for extension of time to file petition for certiorari, the Court of Appeals disregarded A.M. No. 07-7-12-SC. The action amounted to a modification, if not outright reversal, by the Court of Appeals of A.M. No. 07-7-12-SC. In so

doing, the Court of Appeals arrogated to itself a power it did not possess, a power that only this Court may exercise.[14] For this reason, the challenged resolutions dated August 7, 2008 and October 22, 2008 were invalid as they were rendered by the Court of Appeals in excess of its jurisdiction. Even assuming that the Court of Appeals retained the discretion to grant extensions of time to file a petition for certiorari for compelling reasons, the reasons proffered by private respondents counsel did not qualify as compelling. Heavy workload is relative and often self-serving.[15] Standing alone, it is not a sufficient reason to deviate from the 60-day rule.[16] As to the other ground cited by private respondents counsel, suffice it to say that it was a bare allegation unsubstantiated by any proof or affidavit of merit. Besides, they could have filed the petition on time with a motion to be allowed to litigate in forma pauperis. While social justice requires that the law look tenderly on the disadvantaged sectors of society, neither the rich nor the poor has a license to disregard rules of procedure. The fundamental rule of human relations enjoins everyone, regardless of standing in life, to duly observe procedural rules as an aspect of acting with justice, giving everyone his due and observing honesty and good faith.[17] For indeed, while technicalities should not unduly hamper our quest for justice, orderly procedure is essential to the success of that quest to which all courts are devoted.[18] WHEREFORE, the petition is hereby GRANTED. The resolutions dated August 7, 2008 and October 22, 2008 of the Court of Appeals in CA-G.R. SP No. 104510 are REVERSED and SET ASIDE and the petition in the said case is ordered DISMISSED for having been filed out of time.

[G.R. No. 162739, February 12, 2008] AMA COMPUTER COLLEGE-SANTIAGO CITY, INC., Petitioner, vs. CHELLY P. NACINO, substituted by the Heirs of Chelly P. Nacino, Respondent. RESOLUTION NACHURA, J.: Before this Court is a Petition for Review on Certiorari[1] under Rule 45 of the Rules of Civil Procedure seeking the reversal of the Court of Appeals (CA) Resolution[2] dated June 23, 2003, the dispositive portion of which provides: WHEREFORE, for being procedurally flawed, this petition for certiorari is hereby DENIED DUE COURSE, and consequently DISMISSED. Needless to say, the prayer for temporary restraining order, being merely an adjunct to the main suit, must be pro tanto DENIED. SO ORDERED. and of the CA Resolution[3] dated March 3, 2004 which denied petitioner's motion for reconsideration. Petitioner AMA Computer College Santiago City, Inc. (AMA) employed Chelly P. Nacino (Nacino) as Online Coordinator of the college. On October 30, 2002, ostensibly upon inspection, the Human Resources Division Supervisor, Mariziel C. San Pedro (San Pedro) found Nacino absent from his post. On the same day, San Pedro issued a Memorandum[4] requiring Nacino to explain his absence. Nacino filed with San Pedro a written explanation[5] claiming that he had to rush home at 1315 hours (1:15 PM) because he was suffering from LBM (loose bowel movement) and that the facilities in the school were inadequate and inefficient, but he had gone back to the school at 1410 hours (2:10 PM). Not satisfied with the explanation, San Pedro sought another explanation because the earlier explanation does not conform

to a previous investigation conducted.[6] Nacino furnished San Pedro the same written explanation he had earlier submitted. San Pedro then filed a formal complaint against Nacino for false testimony, in addition to the charge of abandonment. An Investigating Committee[7] was constituted to investigate the complaint and, pending investigation, Nacino was placed under preventive suspension for a maximum of thirty (30) days, effective November 8, 2002.[8] The Investigating Committee found Nacino guilty as charged, and was dismissed from the service on December 5, 2002.[9] Aggrieved, Nacino filed on December 13, 2002 a Complaint[10] for Illegal Suspension and Termination before the National Conciliation and Mediation Board (NCMB) in Tuguegarao City. On January 10, 2003, Maria Luanne M. Jali-jali (Jali-jali), AMA's representative, signed the submission Agreement, accepting the jurisdiction of Voluntary Arbitrator Nicanor Y. Samaniego (Voluntary Arbitrator) over the controversy. Before the Voluntary Arbitrator, the parties agreed to settle the case amicably, with Nacino discharging and releasing AMA from all his claims in consideration of the sum of P7,719.81. The Decision[11] embodying the Compromise Agreement and the corresponding Quitclaim and Release,[12] both dated February 21, 2003, were duly prepared and signed, but the check in payment of the consideration for the settlement had yet to be released. On April 1, 2003, Nacino died in an accident. On April 15, 2003, the Voluntary Arbitrator rendered the assailed Decision,[13] ordering Nacino's reinstatement and the payment of his backwages and 13th month pay. Therein, the Voluntary Arbitrator manifested that, due to AMA's failure to pay the sum of P7,719.81, Nacino withdrew from the Compromise Agreement, as shown by the conduct of a hearing on March 15, 2003 where both parties appeared and were directed to file their position papers. The Voluntary Arbitrator also stated that Nacino complied, but AMA failed to file its position paper and to appear before him despite summons. On May 7, 2003, the Voluntary Arbitrator issued a Writ of Execution[14] upon motion of Nacino's surviving spouse, one Bernadeth V. Nacino. AMA filed a Motion to Quash the said Writ but the Voluntary Arbitrator allegedly refused to receive the same.[15] Thus, on May 22, 2003, the heirs

of Nacino were able to garnish AMA's bank deposits in the amount of P52,021.70. On June 16, 2003, AMA filed a Petition[16] for Certiorari under Rule 65 before the CA. On June 23, 2003, the CA dismissed the said petition because it was a wrong mode of review. It held that the proper remedy was an appeal by way of Rule 43 of the Rules of Civil Procedure. Accordingly, the CA opined, an erroneous appeal shall be dismissed outright pursuant to Section 2, Rule 50 of the Rules of Civil Procedure. AMA filed its Motion for Reconsideration but the CA denied it in its Resolution dated March 3, 2004. Hence, this petition based on the sole ground that: THE COURT OF APPEALS COMMITTED SERIOUS ERROR OF LAW IN DISMISSING THE PETITION FOR CERTIORARI UNDER RULE 65 OF THE 1997 RULES OF CIVIL PROCEDURE FILED BY HEREIN PETITIONER. AMA claims that Jali-jali was misinformed and misled in signing the Submission Agreement, subjecting AMA to the jurisdiction of the Voluntary Arbitrator; that the Voluntary Arbitrator's Decision was issued under the Labor Code and, as such, the same is not appealable under Rule 43, as provided for by Section 2[17] thereof, but under Rule 65 of the Rules of Civil Procedure; and that the petition for certiorari is the only plain, speedy and adequate remedy in this case since the Voluntary Arbitrator acted with grave abuse of discretion in disregarding the parties' compromise agreement, in rendering the assailed Decision, and in issuing the Writ of Execution without affording AMA its right to due process. On the other hand, the heirs of Nacino refused to receive this Court's Resolution requiring them to file their Comment[18] and, as such, were considered to have waived their right to file the same. [19] The instant petition lacks merit.

Pertinent is our ruling in Centro Escolar University Faculty and Allied Workers Union-Independent v. Court of Appeals,[20] where we held: We find that the Court of Appeals did not err in holding that petitioner used a wrong remedy when it filed a special civil action on certiorari under Rule 65 instead of an appeal under Rule 43 of the 1997 Rules of Civil Procedure. The Court held in Luzon Development Bank v. Association of Luzon Development Bank Employees that decisions of the voluntary arbitrator under the Labor Code are appealable to the Court of Appeals. In that case, the Court observed that the Labor Code was silent as regards the appeals from the decisions of the voluntary arbitrator, unlike those of the Labor Arbiter which may be appealed to the National Labor Relations Commission. The Court noted, however, that the voluntary arbitrator is a government instrumentality within the contemplation of Section 9 of Batas Pambansa Blg. (BP) 129 which provides for the appellate jurisdiction of the Court of Appeals. The decisions of the voluntary arbitrator are akin to those of the Regional Trial Court, and, therefore, should first be appealed to the Court of Appeals before being elevated to this Court. This is in furtherance and consistent with the original purpose of Circular No. 1-91 to provide a uniform procedure for the appellate review of adjudications of all quasi-judicial agencies not expressly excepted from the coverage of Section 9 of BP 129. Circular No. 1-91 was later revised and became Revised Administrative Circular No. 1-95. The Rules of Court Revision Committee incorporated said circular in Rule 43 of the 1997 Rules of Civil Procedure. The inclusion of the decisions of the voluntary arbitrator in the Rule was based on the Court's pronouncements in Luzon Development Bank v. Association of Luzon Development Bank Employees. Petitioner's argument, therefore, that the ruling in said case is inapplicable in this case is without merit. We are not unmindful of instances when certiorari was granted despite the availability of appeal, such as (a) when public welfare and the advancement of public policy dictates; (b) when the broader interest of justice so requires; (c) when the writs issued are null and void; or (d) when the questioned order amounts to an oppressive exercise of judicial authority. [21] However, none of these recognized exceptions attends the case at bar. AMA has

sadly failed to show circumstances that would justify a deviation from the general rule. While it is true that, in accordance with the liberal spirit which pervades the Rules of Court and in the interest of justice, a petition for certiorari may be treated as having been filed under Rule 45, the petition for certiorari filed by petitioner before the CA cannot be treated as such, without the exceptional circumstances mentioned above, because it was filed way beyond the 15-day reglementary period within which to file the Petition for Review.[22] AMA received the assailed Decision of the Voluntary Arbitrator on April 15, 2003 and it filed the petition for certiorari under Rule 65 before the CA only on June 16, 2003.[23] By parity of reasoning, the same reglementary period should apply to appeals taken from the decisions of Voluntary Arbitrators under Rule 43. Based on the foregoing disquisitions, the assailed Decision of the Voluntary Arbitrator had already become final and executory and beyond the purview of this Court to act upon.[24] Verily, rules of procedure exist for a noble purpose, and to disregard such rules in the guise of liberal construction would be to defeat such purpose. Procedural rules are not to be disdained as mere technicalities. They may not be ignored to suit the convenience of a party. Adjective law ensures the effective enforcement of substantive rights through the orderly and speedy administration of justice. Rules are not intended to hamper litigants or complicate litigation. But they help provide for a vital system of justice where suitors may be heard following judicial procedure and in the correct forum. Public order and our system of justice are well served by a conscientious observance by the parties of the procedural rules.[25] Peti denied. [G.R. No. 166096, September 11, 2008] PHILIPPINE NATIONAL BANK, PETITIONER, BRIGIDO L. VELASCO, RESPONDENT. REYES, R.T., J.: THIS is a tale of a bank officer-depositor clinging to his position after violating bank regulations and falsifying his passbook to cover up a false transaction. VS. RAMON

Before the Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure seeking the reversal of the Decision[1] and Resolution[2] of the Court of Appeals (CA). The appealed decision reversed those of the National Labor Relations Commission (NLRC)[3] and the Labor Arbiter[4] which dismissed the complaint for illegal dismissal and damages of Ramon Brigido L. Velasco against Philippine National Bank (PNB). The Facts Ramon Brigido L. Velasco, a PNB audit officer, and his wife, Belen Amparo E. Velasco, maintained Dollar Savings Account No. 010714698-9[5] at PNB Escolta Branch. On June 30, 1995, while on official business at the Legazpi Branch, he went to the PNB Ligao, Albay Branch and withdrew US$15,000.00 from the dollar savings account. At that time, the account had a balance of US$15,486.07. The Ligao Branch is an off-line branch, i.e., one with no network connection or computer linkage with other PNB branches and the head office. The transaction was evidenced by an Interoffice Savings Account Withdrawal Slip, also known as the Ticket Exchange Center (TEC).[6] On July 10, 1995, PNB Escolta Branch received the TEC covering the withdrawal. It was included among the proofsheet entries of Cashier IV Ruben Francisco, Jr. The withdrawal was not, however, posted in the computer of the Escolta Branch when it received said advice. This means that the withdrawal was not recorded. Thus, the account of Velasco had an overstatement of US$15,000.00. Sometime in September 1995, while Velasco was on a provincial audit, he claimed calling through phone a kin in Manila who just arrived from abroad. This kin allegedly told him that his New Yorkbased brother, Gregorio Velasco, sent him various checks through his kin totaling US$15,000.00 and that the checks would just be deposited in time in Velasco's account. On October 6, 1995, Velasco updated his dollar savings account by depositing US$12.78, reflecting a balance of US$15,486.01. He was allegedly satisfied with the updated balance, as he thought that the US$15,000.00 in his account was the amount given by his brother.

On different dates, Velasco made several inter-branch withdrawals from the dollar savings account, to wit: PNB Branch Date US $2,000.00 3,329.97 4,000.00 Amount

US$15,000.00. However, Donato returned the checks to Velasco and instructed him that he should personally deposit the checks. On February 14, 1996, he deposited the checks and the amount was consequently applied to his unposted withdrawal of US$15,000.00. Meanwhile, on February 9, 1996, PNB vice president, B.C. Hermoso, required[8] Velasco to submit a written explanation concerning the incident. On February 12, 1996, he submitted his sworn letter-explanation. [9] He described the inter-branch withdrawal at PNB Ligao, Albay Branch on June 30, 1995 as "no-book," i.e., without the corresponding presentation to the bank teller of the savings passbook. He stated, among others, that his withdrawal was accommodated as the statement of account showed a balance of US$15,486.01, and that he is personally known to the officers and staff, being a former colleague at the PNB Ligao, Albay Branch. On February 27, 1996, PNB Ligao, Albay Branch division chief III, Rexor Quiambao, financial specialist II, Emma Gacer, and division chief II, Renato M. Letada, confirmed the "no-book" withdrawal.[10] On March 5, 1996, PNB formally charged Velasco with "Dishonesty, Grave Misconduct, and/or Conduct Grossly Prejudicial to the Best Interest of the Service for the irregular handling of Dollar Savings Account No. 010-714698-9."[11] The administrative charge alleged that: (1) he transacted a no-book withdrawal against his Dollar Savings Account No. 010-714698-9 at PNB Ligao, Albay Branch in violation of Section 1216 of the Manual of Regulations for Banks; (2) in transacting the no-book withdrawal, he failed to present any letter of introduction as required under General Circular 3-72/92; (3) the irregular inter-branch withdrawal was aggravated by the failure of Escolta Branch to post/enter the withdrawal into the computer upon receipt of the TEC advice, resulting in the overstatement of the account balance by US$15,000.00; and (4) since he was presumed to be fully aware that neither the deposit nor withdrawal of the US$15,000.00 was reflected on the passbook, he was able to appropriate the amount for his personal benefit, free of interest, to the damage and prejudice of PNB.[12]

PNB Legaspi November 7, 1995 PNB Legaspi November 13, 1995 Cash Dept.

November 23, 1995

Total US $9,329.97 Mrs. Belen Velasco also withdrew several amounts on the dollar account, viz.: PNB Branch PNB CEPZ PNB Frisco Date Amount US$11,494.00 1,292.32

December 6, 1995 January 2, 1996 Total US$12,786.32

Subsequently, the dollar savings account of the spouses was closed. On February 6, 1996, in the course of conducting an audit at PNB Escolta Branch, Molina D. Salvador, a member of the Internal Audit Department (IAD) of PNB, discovered that the inter-branch withdrawal made on June 30, 1995 by Velasco at PNB Ligao, Albay Branch in the amount of US$15,000.00 was not posted; and that no deposit of said amount had been credited to the dollar savings account. On February 7, 1996, Velasco was notified of the glitch when he reported at the IAD. He said it was only in the evening that he was able to verify from his kin that the latter was not able to deposit in his account the US$15,000.00.[7] The following day, or on February 8, 1996, Velasco went to Dolorita Donado, assistant vice president of the Internal Audit Department and team leader of the Escolta Task Force, and delivered three (3) checks in the amount of US$5,000.00 each or a total of

On April 8, 1996, PNB withheld his rice and sugar subsidy, dental/optical/outpatient medical benefits, consolidated medical benefits, commutation of hospitalization benefits, clothing allowance, longevity pay, anniversary bonus, Christmas bonus and cash gift, performance incentive award, and mid-year financial assistance.[13] On April 10, 1996, he was placed under preventive suspension for a period of ninety (90) days.[14] On May 2, 1996, Velasco submitted his sworn Answer[15] to the administrative charge against him. Unlike his previous answer, he here claimed that his withdrawal on June 30, 1995 was "with passbook." As proof, he attached a copy of his passbook[16] bearing the withdrawal entry of US$15,000.00 on June 30, 1995. Explaining the inconsistency with his sworn letter-explanation on February 12, 1996, he said his initial answer was made under pressing circumstances. He was unable to find his passbook which was then kept by his wife who could not be contacted at that moment. On October 2, 1996, the Administrative Adjudication Office (AAO) of PNB composed of Fernando R. Mangubat, Jr., Wilfredo S. Verzosa, Celso D. Benologa, and Jesse L. Figueroa exonerated Velasco of the charges of dishonesty and conduct prejudicial to the best interest of service. However, he was found guilty of grave misconduct, mitigated by length of service and absence of actual loss to PNB. Thus, he was meted the penalty of forced resignation with benefits. [17] On October 31, 1996, Velasco was formally notified of the findings of the AAO after its approval by the management. As of that time, he had been employed with PNB for eighteen (18) years, holding the position of Manager 1 of the IAD. He was earning P14,932.00 per month plus a monthly allowance of P3,940.00 or a total salary of P18,872.00 per month.

On July 9, 1999, Labor Arbiter Pablo C. Espiritu gave judgment, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered as follows: 1. Dismissing the complaint for illegal dismissal against respondents for want of merit. 2. Ordering PNB to pay complainant unpaid wages for the period May 12, 1996 to October 31, 1996 in the amount of P103,796.00. 3. Dismissing complainant's claims for damages and other monetary claims for lack of merit. SO ORDERED.[19] In his ruling, the Labor Arbiter opined that as an employee and officer of PNB for eighteen (18) years, Velasco is expected to know bank procedures, including the expected entries in a savings passbook. Even if it should be assumed that he presented his passbook when he withdrew US$15,000.00 at the PNB Ligao Branch on June 30, 1995, he should have known that there was something wrong with the amounts credited to his account when he made an update on October 6, 1995. Being an audit officer, and fully aware of his withdrawal of US$15,000.00, he should have made inquiries on the inconsistency of the entries in his passbook.[20] The Labor Arbiter also found as flimsy the argument that the additional US$15,000.00 was the amount given to Velasco by his brother from the United States. As early as October 6, 1995, when he updated his passbook, Velasco should have known that (1) his brother's checks in the amount of US$15,000.00 have not been deposited in his dollar savings account and (2) he appears to have been improperly credited with US$15,000.00.[21] Moreover, the Labor Arbiter held that the entry in the passbook purportedly reflecting the withdrawal of US$15,000.00 is a forgery. It was done to conform to the defense of Velasco that he presented his passbook on June 30, 1995.[22]

On December 22, 1997, he filed a Complaint[18] against PNB for illegal suspension, illegal dismissal, and damages before the NLRC. Labor Arbiter, NLRC, and CA Dispositions

On the charge of illegal suspension, the Labor Arbiter held that the preventive suspension of Velasco was reasonable in view of the sensitive nature of his position. It was also necessary to protect the records of PNB.[23] It follows that the withholding of his company benefits is reasonable.[24] Nonetheless, he should be paid his salary from May 12, 1996 up to October 31, 1996.[25] His claim for damages and attorney's fees must be denied because PNB did not violate his rights.[26] Dissatisfied with the decision of the Labor Arbiter, both Velasco[27] and PNB[28] appealed to the NLRC. On July 31, 2000, the NLRC affirmed with modification the Labor Arbiter decision, disposing, thus: WHEREFORE, the decision appealed from is hereby MODIFIED to the extent that the award of unpaid salaries is hereby REDUCED to the complainant's salaries from May 27, 1996 to July 31, 1996. Other dispositions in the appealed decision stands (sic) affirmed. [29] In sustaining the Labor Arbiter, the NLRC held that Velasco's lack of knowledge of the non-posting of his withdrawal is not credible. Even a cursory look at his passbook shows that no deposit of US$15,000.00 was ever made. That there was still a balance of more than US$15,000.00 in his account after the withdrawal he made on June 30, 1995 could only mean that the withdrawal was never posted. Worse, based also on the entries in his passbook, it is clear that the withdrawal on June 30, 1995 was a "no-book" transaction. The withdrawal of US$15,000.00 was not taken into consideration in the determination of the balance of June 30, 1995 and the succeeding dates. Thus, it is clear that the entry in question was falsified. It was made merely to bolster his subsequent claim that he presented his passbook when he withdrew on June 30, 1995.[30] The NLRC concluded that the falsification of the passbook shows deceit on the part of Velasco. He took advantage of his position. The posting of the falsified entry could not have been made without, or was at least facilitated by, his being an employee of the bank. Thus, his subsequent withdrawals amounted to losses on

the part of the bank. He made those withdrawals from his account with full knowledge that the balance of his passbook of more than US$15,000.00 was attributed to the non-posting of the June 30, 1995 withdrawal.[31] The NLRC also held that he had been preventively suspended for more than thirty (30) days as of May 27, 1996. Since he was paid his salaries from August 1, 1996 to October 31, 1996, he may recover only his salary from May 27, 1996 to July 31, 1996.[32] Like the Labor Arbiter, the NLRC held that Velasco may not recover damages. His dismissal was not done oppressively or in bad faith. Neither was he subjected to unnecessary embarrassment or humiliation.[33] His motion for reconsideration having been denied, Velasco elevated the matter to the CA by way of petition for review on certiorari under Rule 43 of the Rules of Court.[34] On April 22, 2004, the CA rendered the assailed decision, the fallo stating, thus: WHEREFORE, for the foregoing discussions, We REVERSE and SET ASIDE the findings of public respondent NLRC and Labor Arbiter and hereby enter a decision ordering PNB to pay petitioner a separation pay equivalent to half-month salary for every year of service, plus backwages from the time of his illegal termination up to the finality of this decision. SO ORDERED.[35] According to the CA, the failure of Velasco to present his passbook and a letter of introduction does not constitute misconduct. Assuming for the sake of argument that he committed a serious misconduct in not properly monitoring his account with ordinary diligence and prudence, the same may be said of PNB when it failed to make the necessary posting of his withdrawal.[36] Lastly, the alleged offense of Velasco is not work-related to constitute just cause for his dismissal.[37] Issues PNB has filed the instant petition for review on certiorari, putting forth the following issues for Our resolution, viz.:

1. WHETHER OR NOT THE COURT OF APPEALS ERRED AND GRAVELY ABUSED ITS DISCRETION IN FINDING THAT RESPONDENT HAS BEEN ILLEGALLY DISMISSED BY THE PETITIONERS. 2. WHETHER OR NOT THE COURT OF APPEALS ERRED AND GRAVELY ABUSED ITS DISCRETION IN DIRECTING PNB TO PAY RESPONDENT SEPARATION PAY AND BACKWAGES.[38] (Underscoring supplied) We add a third issue which was raised by PNB before the CA but was, however, left unresolved: whether Velasco took the correct recourse when he elevated the decision of the NLRC to the CA by way of petition for review on certiorari under Rule 43. Our Ruling I. Appeal does not lie from the decision of the NLRC. We first address the procedural question on the propriety of the Rule 43 petition. Rule 43 provides for appeal from quasi-judicial agencies to the CA by way of petition for review. Petition for review on certiorari or appeal by certiorari is a recourse to the Supreme Court under Rule 45. The mode of appeal resorted to by Velasco is wrong because appeal is not the proper remedy in elevating to the CA the decision of the NLRC. Section 2, Rule 43 of the 1997 Rules of Civil Procedure is explicit that Rule 43 "shall not apply to judgments or final orders issued under the Labor Code of the Philippines." The correct remedy that should have been availed of is the special civil action of certiorari under Rule 65. As this Court held in the case of Pure Foods Corporation v. NLRC,[39] "the party may also seasonably avail of the special civil action for certiorari, where the tribunal, board or officer exercising judicial functions has acted without or in excess of its jurisdiction, or with grave abuse of discretion, and praying that judgment be rendered annulling or modifying the proceedings, as the law requires, of such tribunal, board or officer."[40] In any case, St. Martin Funeral Homes v. National Labor Relations Commission[41] settled any doubt as to the manner of elevating decisions of the NLRC to the CA by holding that "the legislative intendment was that the special civil action of

certiorari was and still is the proper vehicle for judicial review of decisions of the NLRC."[42] That the decision of the NLRC is not subject to appeal could have been a ground for the CA to dismiss the appeal of Velasco. [43] But even assuming, arguendo, that his petition could be liberally treated as one for certiorari under Rule 65, the recourse should not have prospered.

II. Velasco committed serious misconduct, hence, his dismissal is justified. Article 282 of the Labor Code enumerates the just causes where an employer may terminate the services of an employee,[44] to wit: a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; b) Gross and habitual neglect by the employee of his duties; c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and e)Other causes analogous to the foregoing. In Austria v. National Labor Relations Commission,[45] the Court defined misconduct as "improper and wrongful conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment."[46] In Camus v. Civil Service Board of Appeals,[47] misconduct was described as "wrong or improper conduct."[48] It implies a wrongful intention and not a mere error of judgment.[49]

Of course, ordinary misconduct would not justify the termination of the services of an employee. The law is explicit that the misconduct should be serious. It is settled that in order for misconduct to be serious, "it must be of such grave and aggravated character and not merely trivial or unimportant."[50] As amplified by jurisprudence, the misconduct must (1) be serious; (2) relate to the performance of the employee's duties; and (3) show that the employee has become unfit to continue working for the employer. [51] Measured by the foregoing yardstick, We rule that Velasco committed serious misconduct that warrants termination from employment. A. The misconduct is serious. Velasco violated bank rules when he transacted a "no-book" withdrawal by his failure to present his passbook to the PNB Ligao, Albay Branch on June 30, 1995. Section 1216 of the Manual of Regulations for Banks and Other Financial Intermediaries state that "[b]anks are prohibited from issuing/accepting `withdrawal authority slips' or any other similar instruments designed to effect withdrawals of savings deposits without following the usual practice of requiring the depositors concerned to present their passbooks and accomplishing the necessary withdrawal slips." Further, he failed to present any letter of introduction as mandated under General Circular 3-72-92 which requires that "[b]efore going out-of-town, the Depositor secures a Letter of Introduction from the branch/office where his Peso Savings Account is maintained." The presentation of passbook and letter of introduction is not without a valid reason. As aptly stated by the IAD of PNB: Considering that the PNB Ligao, Albay Branch is an offline branch, it is a must that an LOI and the passbook be presented by the depositor before any withdrawal is allowed. This procedure is required in order for the negotiating branch to determine or ascertain the available balance and the specimen signature of the withdrawing party. Moreover, the maintaining branch upon issuance of the LOI shall place a "hold" on the account in the computer as an internal control procedure.[52]

True, a strict reading of General Circular 3-72-92 would lead one to conclude that only persons with peso savings account are required to secure a letter of introduction. However, simple logic dictates that those maintaining dollar savings account are also included. No cogent reason would be served by the rule if only persons with peso savings account are required to get a letter of introduction. Otherwise, there can be a circumvention of the rule. Nemo potest facere per alium qud non potest facere per directum. No one is allowed to do indirectly what he is prohibited to do directly. Sinuman ay hindi pinapayagang gawin nang hindi tuwiran ang ipinagbabawal gawin nang tuwiran. As an audit officer, Velasco should be the first to ensure that banking laws, policies, rules and regulations, are strictly observed and applied by its officers in the day-to-day transactions. The banking system is an indispensable institution in the modern world. It plays a vital role in the economic life of every civilized nation. Whether banks act as mere passive entities for the safekeeping and saving of money, or as active instruments of business and commerce, they have become an ubiquitous presence among the citizenry, who have come to regard them with respect and even gratitude and, most of all, confidence.[53] The CA, however, opined that the failure of Velasco to abide by the rules is not serious misconduct because (1) from the admission of PNB itself, allowing bank personnel who are out-of-town to make a "no-book" transaction without a letter of introduction is considered a common practice, and (2) the approving officers of PNB Ligao Branch should have also been administratively charged considering that the "no-book" transaction could not have pushed through without their approval.[54] In Santos v. San Miguel Corporation,[55] petitioner, in his defense, cited the prolonged practice of payroll personnel, including persons in managerial levels, of encashing personal checks. Finding this argument unmeritorious, the Court held that "[p]rolonged practice of encashing personal checks among respondent's payroll personnel does not excuse or justify petitioner's misdeeds. Her willful and deliberate acts were in gross violation of respondent's policy against encashment of personal checks of its personnel, embodied in its Cash Department Memorandum dated September

6, 1989."[56] The Court even added that petitioner "cannot feign ignorance of such memorandum as she is duty-bound to keep abreast of company policies related to financial matters within the corporation."[57] We apply the same principle here. Suffice it to state that the option of who to charge or punish belongs to PNB. As an employer, PNB is given the latitude to determine who among its erring employees should be punished, to what extent and what penalty to impose.[58] Too, by charging Velasco, PNB is not estopped from charging its other employees who might as well have been remiss with their job. Of course, We are not unaware that Velasco had a change of heart. In his sworn Letter-Explanation February 12, 1996, he admitted that his June 30, 1995 withdrawal of US$15,000.00 was a "no-book" transaction. However, in his sworn Answer dated April 30, 1996, he claimed that he actually presented his passbook when he withdrew on June 30, 1995. To recall, he was charged with dishonesty, grave misconduct, and/or conduct grossly prejudicial to the best interest of the service for irregularly handling his dollar savings account. Thus, it is safe to assume that when he prepared his February 12, 1996 sworn Letter-Explanation, the circumstances surrounding his June 30, 1995 withdrawal at PNB Ligao, Albay Branch were still fresh on his mind. The allegations against him were serious, which should have put him on guard from preparing a haphazard explanation. He should have been mindful that dire consequences would surely befall him should the charges against him be proven. Lest it be forgotten, the no-book withdrawal was confirmed by the concerned officers of PNB Ligao, Albay Branch, namely, Quiambao, Gacer, and Letada. These circumstances, taken together, lead to no other conclusion than that Velasco changed his explanation from "nobook" to "with book" transaction after realizing that he violated bank rules and regulations. Perez v. People,[59] is illustrative on this score. Perez, an acting municipal treasurer, submitted two contradicting answers explaining the location of the missing funds under his custody and control: the first, reiterating his previous verbal admission before the audit team that part of the money was used to pay for the loan

of his late brother, another portion was spent for the food of his family, and the rest for his medicine; and the second, claiming that the alleged missing amount was in the possession and custody of his accountable personnel at the time of the audit examination. This Court held that the sudden turnaround of Perez was merely an afterthought. He "only changed his story to exonerate himself, after realizing that his first Answer put him in a hole, so to speak."[60] Neither did the Court believe that his alleged sickness affected the preparation of his first Answer. Perez "presented no convincing evidence that his disease at the time he formulated that Answer diminished his capacity to formulate a true, clear and coherent response to any query. In fact, its contents merely reiterated his verbal explanation to the auditing team on January 5, 1989 on how he disposed of the missing funds."[61] We find no cogent reason to depart from Our ruling in Perez. The claim of Velasco that his initial answer was made under pressing circumstances is too flimsy an excuse. It partakes of the nature of an alibi. As such, it constitutes a self-serving negative evidence which cannot he accorded greater evidentiary weight than the declaration of credible witnesses who testified on affirmative matters.[62] The Court has consistently frowned upon the defense of alibi, and received it with caution, not only because it is inherently weak and unreliable but also because it can be easily fabricated.[63] Also worth noting is that Velasco never imputed any ill motive on the part of Rexor, Gacer, and Letada who collectively narrated that the June 30, 1995 withdrawal was a no-book transaction. They confirmed his earlier version that he did not present his passbook when he withdrew the US$15,000.00 on June 30, 1995. In any case, the fact that he changed his stance puts his credibility in doubt. Was he lying when he submitted his sworn letterexplanation of February 12, 1996, or when he submitted his sworn Answer dated April 30, 1996? Allegans contraria non est audiendus. He is not to be heard who alleges things contradictory to each other. Hindi dapat pakinggan ang nagsasabi ng mga bagay na salungat sa isa't-isa.

Velasco did not only violate bank rules and regulations. What compounds his offense was his unusual silence. He never informed PNB about the huge overstatement of US$15,000.00 in his account. He updated his passbook on October 6, 1995 by depositing US$12.78. Thus, as early as that date, he should have known that something was wrong with the credited balance in his passbook and reported it immediately to the concerned officers of PNB. What he did, instead, was to keep mum until PNB discovered the incident and notified him on February 7, 1996, or almost eight (8) months after his no-book withdrawal on June 30, 1995. With his silence, he clearly intended to gain at the expense of PNB. The omission to report is not trivial or inconsequential because it gave him the opportunity to withdraw from his dollar savings account more than its real balance, as what he actually did. He took advantage of the overstatement of his account, instead of protecting the interest of the bank. It would be impossible for him not to detect the error at the time he deposited US$12.78 on October 6, 1995, because his account had a big balance despite the fact that no large amount of money was deposited. His claim that he was satisfied with the updated balance of US$15,486.01 on October 6, 1995, as he thought that the US$15,000.00 in his account was the amount given by his brother, is simply unbelievable. It is a desperate attempt at exculpation. The deposit of the money from his brother should have been reflected in the on-line computer of PNB. The deposit would have also been posted for update upon the presentation of the passbook on October 6, 1995. No deposit of US$15,000.00 was, however, reflected in the passbook. In Aboitiz Shipping Corporation v. Dela Serna,[64] Tiu v. National Labor Relations Commission,[65] Five J Taxi v. National Labor Relations Commission,[66] and Falguera v. Linsangan,[67] among other cases, this Court consistently held that factual findings of quasi-judicial agencies, which have acquired expertise in matters entrusted to their jurisdiction, are accorded not only respect but also finality if they are supported by substantial evidence.[68] Thus, in the absence of proof that the Labor Arbiter or the NLRC had gravely abused their discretion, this Court shall deem

conclusive and [69]

will not overturn their particular factual findings.

The Labor Arbiter and the NLRC are in unison that Velasco transacted a no-book withdrawal and failed to present a letter of introduction at PNB Ligao, Albay Branch on June 30, 1995. He also forged his passbook to cover up his offense. Being duly supported by substantial evidence, We sustain said finding. Fitness for continued employment cannot be compartmentalized into tight little cubicles of aspects of character, conduct, and ability separate and independent of each other. A service of irregularities, when combined, may constitute serious misconduct which is a just cause for dismissal.[70] B. The serious misconduct relates to the performance of duties. The CA ruled that the offense of Velasco was not work-related and does not warrant dismissal. It likewise held that there is no proof that his failure to be a good depositor affected his duties or performance as an employee of PNB.[71] At first glance, the acts committed by Velasco pertain only to his being a depositor of PNB. But he has a dual personality. He was a depositor and, at the same time, an officer of the bank. On one hand, he failed to present his passbook and a letter of introduction when he withdrew US$15,000.00 at PNB Ligao, Albay Branch on June 30, 1995. This serious misconduct was aggravated when he presented a falsified passbook to make it appear that he did not commit any misdeed. On the other hand, he worked for PNB for eighteen (18) long years, his last position having been as Manager 1 of the IAD. As such, he was involved in the examination of the books of account of PNB. Thus, when he violated bank rules and regulations and tried to cover up his infractions by falsifying his passbook, he was not only committing them as a depositor but also, or rather more so, as an officer of the bank. It is akin to falsification of time cards,[72] and circulation of fake meal tickets,[73] which this Court held as a just cause for terminating the services of an employee. C. Velasco has become unfit to continue working at PNB. Taken together, his acts render him unfit to remain in the employ of the

bank. That it is his first offense is of no moment because he holds a managerial position. Employers are allowed wide latitude of discretion in terminating managerial employees who, by virtue of their position, require full trust and confidence in the performance of their duties.[74] Managerial employees like Velasco are tasked to perform key and sensitive functions and are bound by more exacting work ethics.[75] Indeed, not even his eighteen (18) years of service could exonerate him. As this Court held in Equitable PCIBank v. Caguioa:[76] The leniency sought by respondent on the basis of her 35 years of service to the bank must be weighed in conjunction with the other considerations raised by petitioners. As that service has been amply compensated, her plea for leniency cannot offset her dishonesty. Even government employees who are validly dismissed from the service by reason of timely discovered offenses are deprived of retirement benefits. Treating respondent in the same manner as the loyal and code-abiding employees, despite the timely discovery of her Code violations, may indeed have a demoralizing effect on the entire bank. Be it remembered that banks thrive on and endeavor to retain public trust and confidence, every violation of which must thus be accompanied by appropriate sanctions.[77] III. The CA erred in directing PNB to pay Velasco separation pay and backwages. PNB has no other liability to Velasco, except his unpaid wages from May 27, 1996 to July 31, 1996. PNB was registered under the Corporation Code under SEC Reg. No. ASO 96-005555 dated May 27, 1996.[78] Thus, on that day, employees of PNB came under the jurisdiction of the Labor Code, whose Sections 8 and 9 of Rule XXIII, Book V of the Implementing Rules state: Section 8. Preventive Suspension. - The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or his co-workers. Section 9. No preventive suspension shall last longer than thirty (30) days. The employer shall thereafter reinstate the worker in his

former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss the worker. PNB has the right to preventively suspend Velasco during the pendency of the administrative case against him. It was obviously done as a measure of self-protection. It was necessary to secure the vital records of PNB which, in view of the position of Velasco as internal auditor, are easily accessible to him. Velasco was preventively suspended for more than thirty (30) days as of May 27, 1996, while the records bear that Velasco was paid his salaries from August 1, 1996 to October 31, 1996.[79] Thus, the NLRC is correct in its holding that he may recover his salaries from May 27, 1996 to July 31, 1996. He is not entitled to separation and backwages because he was not illegally dismissed.[80] We note though that PNB was not at all insensitive to his plight, considering (1) his restitution of the amount akin to no actual loss to the bank, and (2) his length of service of eighteen (18) years.[81] As stated earlier, PNB imposed on Velasco the penalty of forced resignation with benefits, instead of dismissal. The records bear out that he was granted P542,110.75 as separation benefits[82] which was used to offset his loan in the bank, leaving an outstanding balance of P167,625.82 as of May 27, 1997.[83] We find that PNB acted humanely under the circumstances. One last word. The law imposes great burdens on the employer. One needs only to look at the varied provisions of the Labor Code. Indeed, the law is tilted towards the plight of the working man. The Labor Code is titled that way and not as "Employer Code." As one American ruling puts it, the protection of labor is the highest office of our laws.[84]

Corollary to this, however, is the right of the employer to expect from the employee no less than adequate work, diligence and good conduct.[85] As Mr. Justice Joseph McKenna of the United States Supreme Court said in Arizona Copper Co. v. Hammer,[86] "[t]he difference between the position of the employer and the employee, simply considering the latter as economically weaker, is not a justification for the violation of the rights of the former."[87] WHEREFORE, the petition is GRANTED and the appealed Decision REVERSED and SET ASIDE. The Decision of the National Labor Relations Commission is REINSTATED.

1994 which affirmed the decision of the Sub-Regional Arbitration Branch No. I in Dagupan City finding that the private respondent Carlito Lacson was constructively dismissed by the petitioner Delfin Garcia doing business under the name NAPCO-LUZMART, Inc. and awarding respondent backwages and separation pay. The following facts as adopted by the National Labor Relations Commission (NLRC) are uncontroverted: Complainant Carlito Lacson was employed on March 5, 1987 as boiler operator technician by Northwest Agro-Marine Products Corporation (NAPCO). On December 12, 1990 respondent Luzmart, Inc., acquired NAPCO in a foreclosure sale. Both companies were managed by respondent Delfin Garcia. On January 28, 1993, there was a mauling incident which involved the complainant and Julius Z. Viray, his immediate supervisor and allegedly a friend and compadre of respondent Garcia. As complainant suffered injuries as a result thereof he reported the matter to police authorities and he sought treatment at the Teofilo Sison Memorial Provincial Hospital. Both the complainant and Viray were asked to explain their sides. After the submission of the written explanations, Delfin Garcia suspended both of them from work for a period of one month effective April 15, 1993. In the same suspension order, complainant was further directed to explain in writing why he should not be dealt with disciplinary action or terminated for his continued absences from February 15, 1993 up to the date of the memorandum order. Complainant filed a complaint for illegal dismissal and other monetary claims but the same was dismissed without prejudice. On September 1, 1993, the complainant refiled this case.[2]

[G.R. No. 116568. September 3, 1999] DELFIN GARCIA, doing business under the name NAPCOLUZMART, Inc., petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and CARLITO LACSON, respondents. DECISION GONZAGA-REYES, J.: Before us is a Petition for Certiorari under Rule 65 of the Rules of Court to annul and set aside the decision of the National Labor Relations Commission[1] in NLRC CA No. L-001268 dated April 12,

The Labor Arbiter[3] ruled in favor of the respondent Carlito Lacson (LACSON). Petitioner NAPCO-Luzmart (LUZMART) appealed to the NLRC which affirmed the decision of the Labor Arbiter after finding that the Labor Arbiter did not commit any reversible error. The NLRC however deleted the award of attorneys fees in favor of LACSON. Its decision, which adopted the conclusions of the Labor Arbiter, reads:

In finding for the complainant, the Labor Arbiter ruled: The issues to be resolved in this case are: (1) whether or not the complainant was dismissed from his employment; (2) whether or not he is entitled to his claim for overtime services, separation pay, 13th month pay, premium pay for working on holidays and rest days, separation pay, 13th month pay and service incentive leave pay; and, (3) whether or not the complainant is considered an employee of the respondents since March 1987. The first issue: Respondent Delfin Garcia insists that he did not dismiss the complainant and that he can return to his work after his one month suspension, (affidavit of respondent Garcia, marked as Annex H of his position paper). On the other hand, complainant Lacson maintains that he reported for work several times but respondent Garcia refused to take him back and that the former told him to look for another job. Let us scrutinize the evidence. The incident involving the complainant and Julius Viray, also an employee of the respondents, wherein Viray allegedly mauled the complainant, happened on January 28, 1993. On February 1993, the complainant submitted his handwritten explanation blaming Viray as the aggressor. According to the complainant, Viray was drunk at the time of the incident and although he avoided Viray, the latter armed with a lead pipe, followed him and wanted to kill him (Annex C complainant). Viray also submitted his handwritten explanation on February 2, 1993 (see Annex E-1 of respondents position paper). Viray only stated that a heated argument transpired. On March 31, 1993, respondent Garcia issued a Memorandum suspending both the complainant and Viray for one (1) month effective April 15, 1993 and at the same time required the complainant to explain why he should not be terminated for being absent from Feb. 15, 1993, (Annex F, respondents). The question is, why did it take respondent Delfin Garcia one (1) month or more to decide and issue an order suspending the complainant and Viray? Why did he not suspend the two immediately after the incident? This leads credence to the complainants allegation that he reported for work after submitting his explanation but respondent Garcia refused to admit him back and told him to take a vacation or to look for another work, hence he decided to file a complaint against him on

Feb. 4, 1993, which was later dismissed without prejudice, the reason for the dismissal of which was not explained to us by the complainant. Moreover, it is true that the complainant failed to report for work since Feb. 15, 1993, why did respondent Garcia not issue an order or memorandum after the complainant failed to report for a number of days and directing the complainant to report immediately otherwise his employment will be terminated? We also agree with the complainants argument that the respondents should not have asked him to explain his alleged failure to report for work since Feb. 15, 1993, because he has already filed a complaint against Garcia earlier. The second issue; Annexes G, G-1 to G-14 of the respondents, which are samples of respondents payroll, show that whenever the complainant rendered overtime services, he was paid accordingly. Is he entitled to his claim for 13th monthpay, service incentive leave pay, vacation in sick leave pay and separation pay? Respondents maintain that since the complainant was employed by them only on February 1, 1991, he has no right to claim benefits that arose before his employment with them. That since he was not dismissed from his employment, he is not also entitled to his claim for separation pay. (The resolution of this issue will also resolve the second issue) Respondents argue that the services of the complainant with NAPCO since March 1987, cannot be credited or counted to his length of service with LUZMART because his subsequent employment with LUZMART is a new employment as shown in his employment contract (Annex D respondents) with LUZMART. In the case of MDII Supervisors and Confidential Employees Association (FFW) vs. Presidential Assistant on Legal Affairs, 79 SCRA 40 (1977), the Supreme Court ruled that: xxx And there is no law which requires the purchaser to absorb the employees of the selling corporation. As there is no such law, the most that the purchasing company may do, for purposes of public policy and social justice, is to give preference to the qualified separated employees of the selling company, who in their judgment are necessary in the continued

operation of the business establishment. This RCAM did. It required private respondents to reapply as new employees as a condition for rehiring subject to the usual probationary status, the latters past services with the petitioners, transferors not recognized (San Felipe Neri School of Mandaluyong, Inc., et. Al. Vs. NLRC, Roman Catholic Archbishop of Manila (RCAM), et. al., G.R. No. 78350, Sept. 11, 1991.). Except for his bare allegation that LUZMART was only organized by the controlling stockholders of NAPCO to acquire or gain control of the latter, the complainant did not present sufficient evidence to prove his allegation, LUZMART is an entirely new corporation or entity with a distinct personality from NAPCO, and is not an alter ego of NAPCO. Therefore, LUZMART is not under obligation to absorb the workers of NAPCO or to absorb the length of service earned by its employees. The respondents are therefore correct in their assertion that they should not be answerable for the complainants claim for benefits that may be due him before January 1, 1991. As we have discussed earlier, the complainant herein was constructively dismissed from his employment by respondent Delfin Garcia because of the latters refusal to admit him back to work inspite of the complainants insistence to resume his work after he has given his explanation. On appeal, respondent contends that the Labor Arbiter erred in awarding backwages to the complainant from February 1, 1993 up to the date of the promulgation of the decision, and in awarding separation pay of one month pay for every year of service. We are in full accord with the Labor Arbiters conclusion that the complainant was constructively dismissed by the respondent Delfin Garcia when he refused to admit the complainant despite his insistence to go back to work. However, we delete the award of attorneys fees as this is not a case of unlawful withholding of wages.

WHEREFORE, premises considered, the appealed decision is modified by deleting the award of attorneys fees. In all other respect, the same is affirmed. SO ORDERED.[4]

LUZMARTs motion for reconsideration[5] was denied hence, this petition wherein LUZMART claims that the NLRC committed grave abuse of discretion in holding that LACSON was illegally dismissed. In support of its petition, LUZMART claims that LACSON was not dismissed but was merely suspended as shown by the March 31, 1993 memorandum.[6] His suspension was a consequence of the imposition of disciplinary measures on him as fighting within the company premises constitutes serious misconduct and disorderly behavior. The fact that LUZMART did not immediately suspend him after the fighting incident does not establish that he was dismissed from his employment as there is no law which requires an employer to immediately rule on any infraction under investigation after the filing of the explanation of the person under investigation. Neither is LACSON entitled to backwages nor separation pay as these are only granted to employees who have been illegally dismissed from work and not to employees like LACSON who abandoned his employment as he failed to report to work from February 15, 1993 to March 31, 1993.[7] We resolve to affirm the judgment of the NLRC. LUZMARTs claim that LACSON was merely suspended and was still employed by LUZMART does not convince us that LACSON was not dismissed from his employment. Said claim was a mere afterthought to preempt or thwart the impending illegal dismissal case filed by LACSON against LUZMART. As found by the labor arbiter, LACSONs failure to report to work was due to LUZMARTs refusal to admit him back. In fact, LUZMART told him to go on vacation or to look for other work.[8] LACSONs dismissal is clearly established by the following chronology of events: The mauling incident occurred on January 28, 1993. LACSON submitted his written explanation of the event

on February 1, 1993. On February 4, 1993, LACSON attempted to report for work but LUZMART refused to admit him. On February 11, 1993, LACSON filed an action for illegal dismissal with the NLRC.[9] On April 13, 1993, LUZMART sent LACSON the memorandum ordering LACSONs suspension dated on March 31, 1993. By this time, LUZMART already knew of the pending illegal dismissal case against it as it was already directed by the NLRC to submit its position paper on April 5, 1993. LUZMARTs reliance on the March 31, 1993 memorandum[10] and the February 1-15, 1993 payroll[11] to prove that LACSON was merely suspended is therefore unavailing. The March 31, 1993 memorandum is at most self-serving; a ploy to cover up the dismissal of LACSON since this was issued after LUZMART had knowledge of the illegal dismissal case filed against it by LACSON on February 11, 1993. Likewise, the veracity of the February 1-15, 1993 payroll that purportedly shows that LACSON was included in LUZMARTs payroll is of doubtful probative value. First of all, it does not contain a certification by Charito Fernandez at its back page, unlike the other payrolls[12] attached as annexes to LUZMARTs petition. Secondly, said payroll does not contain the signatures of the other employees as proof that they received their salaries for the said period. Given these circumstances, both documents appear to have been prepared in contemplation of the pending illegal dismissal case filed against LUZMART. The contention that LACSON abandoned his employment is also without merit. Mere absence or failure to report for work, after notice to return, is not enough to amount to such abandonment. [13] For a valid finding of abandonment, two factors must be present, viz; (1) the failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever the employer-employee relationship,[14] with the second element as the more determinative factor being manifested by some overt acts.[15] There must be a concurrence of the intention to abandon and some overt acts from which an employee may be deduced as having no more intention to work.[16] Such intent to discontinue the employment must be shown by clear proof that it was deliberate and unjustified.[17] LACSONs absence from work was not without a valid reason. It was petitioner who did not allow him to work and in fact told him to

go on vacation or to look for other work. This is tantamount to a constructive dismissal which is defined as a quitting because continued employment is rendered impossible, unreasonable or unlikely; as an offer involving a demotion in rank and diminution in pay[18] Since LACSON was denied entry into his workplace, it was impossible for him to return to work. It would be unjust to allow herein petitioners to claim as a ground for abandonment a situation which they themselves had brought about.[19] Moreover, LACSONs filing of the complaint for illegal dismissal on February 11, 1993, or seven days after his alleged abandonment, negates said charge. It is highly illogical for an employee to abandon his employment and thereafter file a complaint for illegal dismissal. [20] We also do not agree with LUZMART that LACSON gave just cause for the imposition of disciplinary measures upon him. Although fighting within company premises may constitute serious misconduct under Article 282[21] of the Labor Code and may be a just cause to terminate ones employment[22], every fight within company premises in which an employee is involved would not warrant his dismissal. This is especially true when the employee concerned did not instigate the fight and was in fact the victim who was constrained to defend himself. In the present case, it appears that LACSON was assaulted by Julius Viray (VIRAY), a co-employee, after they were questioned about missing diesel fuel. LACSON attempted to avoid the conflict since VIRAY was intoxicated but VIRAY followed him and after an exchange of words, VIRAY punched him while saying Papatayin Kita (I will kill you). After being punched a second time, LACSON punched back. He thereafter ran towards the dressing plant after his companion, a certain DANNY, told him to run. VIRAY was persistent and followed LACSON and continued delivering punches at him. LACSON ran away for a second time but VIRAY still pursued him and even armed himself with a lead pipe. LACSON sustained wounds on his head and forehead due to VIRAYs use of the lead pipe. The MedicoLegal Certificate[23] issued by the Gov. Teofilo Sison Memorial Hospital corroborates LACSONs injuries. Given the above circumstances, it is not difficult to understand why LACSON had to defend himself.

Even assuming that there was just cause to dismiss LACSON, strict compliance by the employer with the demands of both procedural and substantive due process is a condition sine qua non for the termination to be declared valid. The law requires that the employer must furnish the worker sought to be dismissed with two written notices before termination of employment can be legally effected: 1. notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and 2. the subsequent notice which informs the employee of the employers decision to dismiss him.[24] It is unclear whether LUZMART complied with the first required written notice; apparently, LACSON was able to give his account of the fight. However, even assuming that LUZMART complied with the first written notice i.e. the charge against LACSON with fighting within company premises, the evidence fails to show compliance with the second notice requirement; to inform LACSON of the decision to dismiss him. Such failure to comply with said requirements taints LACSONs dismissal with illegality. An illegally dismissed employee is entitled to 1) either reinstatement or separation pay if reinstatement is no longer viable, and 2) backwages.[25] In the present case, LACSON is entitled to be reinstated, as there is no evidence to show that reinstatement is no longer possible considering LUZMARTs position in this appeal is that LACSON was never dismissed but merely suspended. He is also entitled to backwages computed from the time of illegal dismissal, in this case on February 4, 1993[26] (not February 1, 1993 as found by the NLRC) up to the time of actual reinstatement, without qualification or deduction[27] WHEREFORE, the assailed decision of the NLRC is AFFIRMED and the instant petition is hereby DISMISSED with the MODIFICATION that LUZMART reinstate LACSON to his former position and pay him backwages computed from the date of illegal dismissal on February 4, 1993 up to the time of actual reinstatement. No pronouncement as to costs.

SO ORDERED.