J.A.B. Bulao & Associates

CASE 2012-0047: C. ALCANTARA & SONS, INC. VS. COURT OF APPEALS, LABOR ARBITER ANTONIO M. VILLANUEVA, LABOR ARBITER ARTURO L. GAMOLO, SHERIFF OF NLRC RAB-XI-DAVAO CITY, NAGKAHIUSANG MAMUMUO SA ALSONS-SPFL (NAMAAL-SPFL), FELIXBERTO IRAG, JOSHUA BARREDO, ERNESTO CUARIO, EDGAR MONDAY, EDILBERTO DEMETRIA, HERMINIO ROBILLO, ROMULO LUNGAY, MATROIL DELOS SANTOS, BONERME MATURAN, RAUL CANTIGA, EDUARDO CAMPUSO, RUDY ANADON, GILBERTO GABRONINO, BONIFACIO SALVADOR, CIRILO MINO, ROBERTO ABONADO, WARLITO MONTE, PEDRO ESQUIERDO, ALFREDO TROPICO, DANILO MEJOS, HECTOR ESTUITA, BARTOLOME CASTILLANES, EDUARDO CAPUYAN, SATURNINO CAGAS, ALEJANDRO HARDER, EDUARDO LARENA, JAIME MONTEDERAMOS, ERMELANDO BASADRE, REYNALDO LIMPAJAN, ELPIDIO LIBRANZA, TEDDY SUELO, JOSE AMOYLIN, TRANQUILINO ORALLO, CARLOS BALDOS, MANOLITO SABELLANO, CARMELITO TOBIAS, PRIMITIVO GARCIA, JUANITO ALDEPOLLA, LUDIVICO ABAD, WENCISLAO INGHUG, RICARDO ALTO, EPIFANIO JARABAY, FELICIANO AMPER, ALEXANDER JUDILLA, ROBERTO ANDRADE, ALFREDO LESULA, JULIO ANINO, BENITO MAGPUSAO, PEDRO AQUINO, EDDIE MANSANADES, ROMEO ARANETA, ARGUILLAO MANTICA, CONSTANCIO ARNAIZ, ERNESTO HOTOY, JUSTINO ASCANO, RICARDO MATURAN, EDILBERTO YAMBAO, ANTONIO MELARGO, JESUS BERITAN, ARSENIO MELICOR, DIOSDADO BONGABONG, LAURO MONTENEGRO, CARLITO BURILLO, LEO MORA, PABLO BUTIL, ARMANDO GUCILA, JEREMIAH CAGARA, MARIO NAMOC, CARLITO CAL, GERWINO NATIVIDAD, ROLANDO CAPUYAN, EDGARDO ORDIZ, LEONARDO CASURRA, PATROCINIO ORTEGA, FILEMON CESAR, MARIO PATAN, ROMEO COMPRADO, JESUS PATOC, RAMON CONSTANTINO, ALBERTO PIELAGO, SAMUEL DELA LLANA, NICASIO PLAZA, ROSALDO DAGONDON, TITO GUADES, BONIFACIO DINAGUDOS, PROCOPIO RAMOS, JOSE EBORAN, ROSENDO SAJOL, FRANCISCO EMPUERTO, PATRICIO SALOMON, NESTOR ENDAYA, MARIO SALVALEON, ERNESTO ESTILO, BONIFACIO SIGUE, VICENTE FABROA, JAIME SUCUAHI, CELSO HUISO, ALEX TAUTO-AN, SATURNINO YAGON, CLAUDIO TIROL, SULPECIO GAGNI, JOSE TOLERO, FERVIE GALVEZ, ALFREDO TORALBA AND EDUARDO GENELSA (G.R. NO. 155109, MARCH 14, 2012, PERALTA, J.:) AND RELATED CASES (G.R. NO. 155135, G.R. NO. 179220) SUBJECT/S: ILLEGAL STRIKES; LIABILITY OF STRIKING UNION OFFICERS AND MEMBERS; WHEN SEPARATION PAY IS GRANTED AS FORM OF FINANCIAL ASSISTANCE (BRIEF TITLE: C. ALCANTARA & SONS VS. C.A. ET AL.)

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DISPOSITIVE:

        WHEREFORE, premises considered, the motion for reconsideration of the Union, its officers and members are DENIED for lack of merit, while the motion for partial reconsideration filed by C. Alcantara & Sons, Inc. is PARTLY GRANTED. The Decision of the Court dated September 29, 2010 is hereby PARTLY RECONSIDERED by deleting the award of separation pay.

SO ORDERED.

                                DIOSDADO M. PERALTA

                                Associate Justice

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SUBJECTS/DOCTRINES/DIGEST

THE CBA PROVIDES NO STRIKE – NO LOCKOUT PROVISION WHICH ENJOINED BOTH THE UNION AND THE COMPANY FROM RESORTING TO THE USE OF ECONOMIC WEAPONS AVAILABLE TO THEM UNDER THE LAW AND TO INSTEAD TAKE RECOURSE TO VOLUNTARY ARBITRATION IN SETTLING THEIR DISPUTES.^[1][22]  THE UNION STAGED A STRIKE? WAS THE STRIKE ILLEGAL.

YES. MORE SO BECAUSE THE NLRC AND CA SAID SO.

        The LA, the NLRC, the CA and the Court are one in saying that the strike staged by the Union, participated in by the Union officers and members, is illegal being in violation of the no strike-no lockout provision of the CBA which enjoined both the Union and the company from resorting to the use of economic weapons available to them under the law and to instead take recourse to voluntary arbitration in settling their disputes.^[2][22] We, therefore, find no reason to depart from such conclusion.

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WHAT IS THE LIABILITY OF A UNION OFFICER WHO KNOWINGLY PARTICIPATES IN AN ILLEGAL STRIKE?

HE MAY BE DECLARED TO HAVE LOST HIS EMPLOYMENT STATUS.

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HOW ABOUT IF A UNION OFFICER OR ANY WORKER COMMITS ILLEGAL ACTS DURING A STRIKE THAT IS LEGAL, WHAT IS THEIR LIABILITY?

THEY MAY ALSO BE DECLARED TO HAVE LOST THEIR EMPLOYMENT.

        Article 264 (a) of the Labor Code lays down the liabilities of the Union officers and members participating in illegal strikes and/or committing illegal acts, to wit:

ART. 264. PROHIBITED ACTIVITIES

(a)    x x x

Any worker whose employment has been terminated as a consequence of an unlawful lockout shall be entitled to reinstatement with full backwages. Any Union officer who knowingly participates in an illegal strike and any worker or Union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike.

Thus, the above-quoted provision sanctions the dismissal of a Union officer who knowingly participates in an illegal strike or who knowingly participates in the commission of illegal acts during a lawful strike.^[3][23]  In this case, the Union officers were in clear breach of the above provision of law when they knowingly participated in the illegal strike.^[4][24]

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WHAT ARE EXAMPLES OF ILLEGAL ACTS COMMITTED DURING A LAWFUL STRIKE?

AS IN THIS CASE THE FOLLOWING CONSTITUTES ILLEGAL ACTS:

A.       THEY THREATENED, COERCED, AND INTIMIDATED NON-STRIKING EMPLOYEES, OFFICERS, SUPPLIERS AND CUSTOMERS; 

B.      THEY OBSTRUCTED THE FREE INGRESS TO AND EGRESS FROM THE COMPANY PREMISES; AND

C.       THEY RESISTED AND DEFIED THE IMPLEMENTATION OF THE WRIT OF PRELIMINARY INJUNCTION ISSUED AGAINST THE STRIKERS.^[5][25]

As to the Union members, the same provision of law provides that a member is liable when he knowingly participates in the commission of illegal acts during a strike. We find no reason to reverse the conclusion of the Court that CASI presented substantial evidence to show that the striking Union members committed the following prohibited acts:

a.       They threatened, coerced, and intimidated non-striking employees, officers, suppliers and customers; 

b.      They obstructed the free ingress to and egress from the company premises; and

c.       They resisted and defied the implementation of the writ of preliminary injunction issued against the strikers.^[6][25]

The commission of the above prohibited acts by the striking Union members warrants their dismissal from employment.

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THE LABOR ARBITER ORDERED THE REINSTATEMENT OF STRIKING UNION MEMBERS. BUT LATER THE NLRC REVERSED THE ORDER. WILL THE UNION MEMBERS BE STILL ENTITLED TO BACK WAGES?

YES, FROM THE DATE OF ORDER OF REINSTATEMENT TO THE DATE WHEN THE ORDER WAS REVERSED BY NLRC. THE REINSTATEMENT ORDER IS SELF EXECUTORY.

        As clearly narrated earlier, the LA found the strike illegal and sustained the dismissal of the Union officers, but ordered the reinstatement of the striking Union members for lack of evidence showing that they committed illegal acts during the illegal strike. This decision, however, was later reversed by the NLRC.  Pursuant to Article 223^[7][26] of the Labor Code and well-established jurisprudence,^[8][27] the decision of the LA reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be executory, pending appeal.^[9][28] The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation, or, at the option of the employee, merely reinstated in the payroll.^[10][29] It is obligatory on the part of the employer to reinstate and pay the wages of the dismissed employee during the period of appeal until reversal by the higher court.^[11][30] If the employer fails to exercise the option of re-admitting the employee to work or to reinstate him in the payroll, the employer must pay the employee’s salaries during the period between the LA’s order of reinstatement pending appeal and the resolution of the higher court overturning that of the LA.^[12][31] In this case, CASI is liable to pay the striking Union members their accrued wages for four months and nine days, which is the period from the notice of the LA’s order of reinstatement until the reversal thereof by the NLRC.^[13][32]

        Citing Escario v. National Labor Relations Commission (Third Division),^[14][33]  CASI claims that the award of the four-month accrued salaries to the Union members is not sanctioned by jurisprudence. In Escario, the Court categorically stated that the strikers were not entitled to their wages during the period of the strike (even if the strike might be legal), because they performed no work during the strike. The Court further held that it was neither fair nor just that the dismissed employees should litigate against their employer on the latter’s time.^[15][34] In this case, however, the four-month accrued salaries awarded to the Union members are not the backwages referred to in Escario. To be sure, the awards were not given as their salaries during the period of the strike. Rather, they constitute the employer’s liability to the employees for its failure to exercise the option of actual reinstatement or payroll reinstatement following the LA’s decision to reinstate the Union members as mandated by Article 223 of the Labor Code adequately discussed earlier. In other words, such monetary award refers to the Union members’ accrued salaries by reason of the reinstatement order of the LA which is self-executory pursuant to Article 223.^[16][35] We, therefore, sustain the award of the four-month accrued salaries.

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CA AWARDED THE WORKERS SEPARATION PAY AS FORM OF FINANCIAL ASSISTANCE. IS THIS VALID?

NO. SEPARATION PAY MAY  BE GIVEN AS A FORM OF FINANCIAL ASSISTANCE WHEN A WORKER IS DISMISSED IN CASES SUCH AS THE INSTALLATION OF LABOR-SAVING DEVICES, REDUNDANCY, RETRENCHMENT TO PREVENT LOSSES, CLOSING OR CESSATION OF OPERATION OF THE ESTABLISHMENT, OR IN CASE THE EMPLOYEE WAS FOUND TO HAVE BEEN SUFFERING FROM A DISEASE SUCH THAT HIS CONTINUED EMPLOYMENT IS PROHIBITED BY LAW.^[17][36]

WHY?

IT IS A STATUTORY RIGHT DEFINED AS THE AMOUNT THAT AN EMPLOYEE RECEIVES AT THE TIME OF HIS SEVERANCE FROM THE SERVICE AND IS DESIGNED TO PROVIDE THE EMPLOYEE WITH THE WHEREWITHAL DURING THE PERIOD THAT HE IS LOOKING FOR ANOTHER EMPLOYMENT.^[18][37] IT IS ORIENTED TOWARDS THE IMMEDIATE FUTURE, THE TRANSITIONAL PERIOD THE DISMISSED EMPLOYEE MUST UNDERGO BEFORE LOCATING A REPLACEMENT JOB.^[19][38]

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HOW ABOUT IF THE CAUSES ARE JUST CAUSES?

THE EMPLOYEE IS NOT ENTITLED TO SUCH SEPARATION PAY AS FORM OF FINANCIAL EXCEPTION BECAUSE LAWBREAKERS SHOULD NOT BENEFIT FROM THEIR ILLEGAL ACTS.^[20][39]  

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IS THIS RULE ABSOLUTE?

NO THERE IN AN EXCEPTION. WHERE THE EMPLOYEE IS VALIDLY DISMISSED FOR CAUSES OTHER THAN SERIOUS MISCONDUCT OR THOSE REFLECTING ON HIS MORAL CHARACTER. THE REASON IS SOCIAL JUSTICE.

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GIVE EXAMPLES WHEN SEPARATION PAY WAS GRANTED DESPITE DISMISSAL FROM THE SERVICE?

INDEED, WE APPLIED SOCIAL JUSTICE AND EQUITY CONSIDERATIONS IN SEVERAL CASES TO JUSTIFY THE AWARD OF FINANCIAL ASSISTANCE. IN PIÑERO V. NATIONAL LABOR RELATIONS COMMISSION,^[21][46] THE COURT DECLARED THE STRIKE TO BE ILLEGAL FOR FAILURE TO COMPLY WITH THE PROCEDURAL REQUIREMENTS. WE, LIKEWISE, SUSTAINED THE DISMISSAL OF THE UNION PRESIDENT FOR PARTICIPATING IN SAID ILLEGAL STRIKE. CONSIDERING, HOWEVER, THAT HIS INFRACTION IS NOT SO REPREHENSIBLE AND UNSCRUPULOUS AS TO WARRANT COMPLETE DISREGARD OF HIS LONG YEARS OF SERVICE, AND CONSIDERING FURTHER THAT HE HAS NO PREVIOUS DEROGATORY RECORDS, WE GRANTED FINANCIAL ASSISTANCE TO SUPPORT HIM IN THE TWILIGHT OF HIS LIFE AFTER LONG YEARS OF SERVICE.^[22][47] THE SAME COMPASSION WAS ALSO APPLIED IN APARENTE, SR. V. NLRC^[23][48] WHERE THE EMPLOYEE WAS DECLARED TO HAVE BEEN VALIDLY TERMINATED FROM SERVICE AFTER HAVING BEEN FOUND GUILTY OF DRIVING WITHOUT A VALID DRIVER’S LICENSE, WHICH IS A CLEAR VIOLATION OF THE COMPANY’S RULES AND REGULATIONS.^[24][49] WE, LIKEWISE, AWARDED FINANCIAL ASSISTANCE IN SALAVARRIA V. LETRAN COLLEGE^[25][50] TO THE LEGALLY DISMISSED TEACHER FOR VIOLATION OF SCHOOL POLICY BECAUSE SUCH INFRACTION NEITHER AMOUNTED TO SERIOUS MISCONDUCT NOR REFLECTED THAT OF A MORALLY DEPRAVED PERSON. 

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GIVE EXAMPLES WHEN SEPARATION PAY WAS NOT GIVEN.

WE HAD THE OCCASION TO RESOLVE THE SAME ISSUE IN TOYOTA MOTOR PHILS. CORP. WORKERS ASSOCIATION (TMPCWA) V. NATIONAL LABOR RELATIONS COMMISSION.^[26][43]  FOLLOWING THE DECLARATION THAT THE STRIKE STAGED BY THE UNION MEMBERS IS ILLEGAL, THE UNION OFFICERS AND MEMBERS WERE CONSIDERED VALIDLY DISMISSED FROM EMPLOYMENT FOR COMMITTING ILLEGAL ACTS DURING THE ILLEGAL STRIKE. THE COURT AFFIRMED THE CA’S CONCLUSION THAT THE COMMISSION OF ILLEGAL ACTS DURING THE ILLEGAL STRIKE CONSTITUTED SERIOUS MISCONDUCT.^[27][44] HENCE, THE AWARD OF SEPARATION PAY TO THE UNION OFFICIALS AND MEMBERS WAS NOT SUSTAINED.^[28][45]  

. . . . .

HOWEVER, IN A NUMBER OF CASES CITED IN TOYOTA MOTOR PHILS. CORP. WORKERS ASSOCIATION (TMPCWA) V. NATIONAL LABOR RELATIONS COMMISSION,^[29][51] WE REFRAINED FROM AWARDING SEPARATION PAY OR FINANCIAL ASSISTANCE TO UNION OFFICERS AND MEMBERS WHO WERE SEPARATED FROM SERVICE DUE TO THEIR PARTICIPATION IN OR COMMISSION OF ILLEGAL ACTS DURING THE STRIKE.^[30][52]  IN PILIPINO TELEPHONE CORPORATION V. PILIPINO TELEPHONE EMPLOYEES ASSOCIATION (PILTEA),^[31][53] THE STRIKE WAS FOUND TO BE ILLEGAL BECAUSE OF PROCEDURAL INFIRMITIES AND FOR DEFIANCE OF THE SECRETARY OF LABOR’S ASSUMPTION ORDER. HENCE, WE UPHELD THE UNION OFFICERS’ DISMISSAL WITHOUT GRANTING FINANCIAL ASSISTANCE. IN SUKHOTAI CUISINE AND RESTAURANT V. COURT OF APPEALS,^[32][54] AND MANILA DIAMOND HOTEL AND RESORT, INC. (MANILA DIAMOND HOTEL) V. MANILA DIAMOND HOTEL EMPLOYEES UNION,^[33][55] THE UNION OFFICERS AND MEMBERS WHO PARTICIPATED IN AND COMMITTED ILLEGAL ACTS DURING THE ILLEGAL STRIKE WERE DEEMED TO HAVE LOST THEIR EMPLOYMENT STATUS AND WERE NOT AWARDED FINANCIAL ASSISTANCE.

IN TELEFUNKEN SEMICONDUCTORS EMPLOYEES UNION V. COURT OF APPEALS,^[34][56] THE COURT HELD THAT THE STRIKERS’ OPEN AND WILLFUL DEFIANCE OF THE ASSUMPTION ORDER OF THE SECRETARY OF LABOR CONSTITUTE SERIOUS MISCONDUCT AND REFLECTIVE OF THEIR MORAL CHARACTER, HENCE, GRANTING OF FINANCIAL ASSISTANCE TO THEM CANNOT BE JUSTIFIED. IN CHUA V. NATIONAL LABOR RELATIONS COMMISSION,^[35][57] WE DISALLOWED THE AWARD OF FINANCIAL ASSISTANCE TO THE DISMISSED EMPLOYEES FOR THEIR PARTICIPATION IN THE UNLAWFUL AND VIOLENT STRIKE WHICH RESULTED IN MULTIPLE DEATHS AND EXTENSIVE PROPERTY DAMAGE BECAUSE IT CONSTITUTES SERIOUS MISCONDUCT ON THEIR PART.

        Finally, as regards the separation pay as a form of financial assistance awarded by the Court, we find it necessary to reconsider the same and delete the award pursuant to prevailing jurisprudence.

        Separation pay may be given as a form of financial assistance when a worker is dismissed in cases such as the installation of labor-saving devices, redundancy, retrenchment to prevent losses, closing or cessation of operation of the establishment, or in case the employee was found to have been suffering from a disease such that his continued employment is prohibited by law.^[36][36]  It is a statutory right defined as the amount that an employee receives at the time of his severance from the service and is designed to provide the employee with the wherewithal during the period that he is looking for another employment.^[37][37] It is oriented towards the immediate future, the transitional period the dismissed employee must undergo before locating a replacement job.^[38][38] As a general rule, when just causes for terminating the services of an employee exist, the employee is not entitled to separation pay because lawbreakers should not benefit from their illegal acts.^[39][39] The rule, however, is subject to exceptions.^[40][40] The Court, in Philippine Long Distance Telephone Co. v. NLRC,^[41][41] laid down the guidelines when separation pay in the form of financial assistance may be allowed, to wit:

We hold that henceforth separation pay shall be allowed as a measure of social justice only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. Where the reason for the valid dismissal is, for example, habitual intoxication or an offense involving moral turpitude, like theft or illicit sexual relations with a fellow worker, the employer may not be required to give the dismissed employee separation pay, or financial assistance, or whatever other name it is called, on the ground of social justice.

A contrary rule would, as the petitioner correctly argues, have the effect, of rewarding rather than punishing the erring employee for his offense. And we do not agree that the punishment is his dismissal only and that the separation pay has nothing to do with the wrong he has committed x x x.^[42][42]  

        We had the occasion to resolve the same issue in Toyota Motor Phils. Corp. Workers Association (TMPCWA) v. National Labor Relations Commission.^[43][43]  Following the declaration that the strike staged by the Union members is illegal, the Union officers and members were considered validly dismissed from employment for committing illegal acts during the illegal strike. The Court affirmed the CA’s conclusion that the commission of illegal acts during the illegal strike constituted serious misconduct.^[44][44] Hence, the award of separation pay to the Union officials and members was not sustained.^[45][45]  

        Indeed, we applied social justice and equity considerations in several cases to justify the award of financial assistance. In Piñero v. National Labor Relations Commission,^[46][46] the Court declared the strike to be illegal for failure to comply with the procedural requirements. We, likewise, sustained the dismissal of the Union president for participating in said illegal strike. Considering, however, that his infraction is not so reprehensible and unscrupulous as to warrant complete disregard of his long years of service, and considering further that he has no previous derogatory records, we granted financial assistance to support him in the twilight of his life after long years of service.^[47][47] The same compassion was also applied in Aparente, Sr. v. NLRC^[48][48] where the employee was declared to have been validly terminated from service after having been found guilty of driving without a valid driver’s license, which is a clear violation of the company’s rules and regulations.^[49][49] We, likewise, awarded financial assistance in Salavarria v. Letran College^[50][50] to the legally dismissed teacher for violation of school policy because such infraction neither amounted to serious misconduct nor reflected that of a morally depraved person.  

        However, in a number of cases cited in Toyota Motor Phils. Corp. Workers Association (TMPCWA) v. National Labor Relations Commission,^[51][51] we refrained from awarding separation pay or financial assistance to Union officers and members who were separated from service due to their participation in or commission of illegal acts during the strike.^[52][52]  In Pilipino Telephone Corporation v. Pilipino Telephone Employees Association (PILTEA),^[53][53] the strike was found to be illegal because of procedural infirmities and for defiance of the Secretary of Labor’s assumption order. Hence, we upheld the Union officers’ dismissal without granting financial assistance. In Sukhotai Cuisine and Restaurant v. Court of Appeals,^[54][54] and Manila Diamond Hotel and Resort, Inc. (Manila Diamond Hotel) v. Manila Diamond Hotel Employees Union,^[55][55] the Union officers and members who participated in and committed illegal acts during the illegal strike were deemed to have lost their employment status and were not awarded financial assistance.

In Telefunken Semiconductors Employees Union v. Court of Appeals,^[56][56] the Court held that the strikers’ open and willful defiance of the assumption order of the Secretary of Labor constitute serious misconduct and reflective of their moral character, hence, granting of financial assistance to them cannot be justified. In Chua v. National Labor Relations Commission,^[57][57] we disallowed the award of financial assistance to the dismissed employees for their participation in the unlawful and violent strike which resulted in multiple deaths and extensive property damage because it constitutes serious misconduct on their part.

        Here, not only did the Court declare the strike illegal, rather, it also found the Union officers to have knowingly participated in the illegal strike. Worse, the Union members committed prohibited acts during the strike. Thus, as we concluded in Toyota, Telefunken, Chua and the other cases cited above, we delete the award of separation pay as a form of financial assistance.

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Republic of thePhilippines

Supreme Court

Manila

SPECIAL SECOND DIVISION

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RESOLUTION

PERALTA, J.:

         For resolution are the (1) Motion for Partial Reconsideration^[58][1] filed by C. Alcantara & Sons, Inc. (CASI) and (2) Motion for Reconsideration^[59][2] filed by Nagkahiusang  Mamumuo sa Alsons-SPFL (the Union) and the Union officers^[60][3] and their striking members^[61][4] of the Court’s Decision^[62][5] dated September 29, 2010. In a Resolution^[63][6] dated December 13, 2010, the parties were required to submit their respective Comments. After several motions for extension, the parties submitted the required comments. Hence, this resolution.

        For a proper perspective, we state briefly the facts of the case.

        The negotiation between CASI and the Union on the economic provisions of the Collective Bargaining Agreement (CBA) ended in a deadlock prompting the Union to stage a strike,^[64][7] but the strike was later declared by the Labor Arbiter (LA) to be illegal having been staged in violation of the CBA’s no strike-no lockout provision.^[65][8] Consequently, the Union officers were deemed to have forfeited their employment with the company and made them liable for actual damages plus interest and attorney’s fees, while the Union members were ordered to be reinstated without backwages there being no proof that they actually committed illegal acts during the strike.^[66][9]

        Notwithstanding the provision of the Labor Code mandating that the reinstatement aspect of the decision be immediately executory, the LA refused to reinstate the dismissed Union members. On November 8, 1999, the NLRC affirmed the LA decision insofar as it declared the strike illegal and ordered the Union officers dismissed from employment and liable for damages but modified the same by considering the Union members to have been validly dismissed from employment for committing prohibited and illegal acts.^[67][10]

        On petition for certiorari, the Court of Appeals (CA) annulled the NLRC decision and reinstated that of the LA. Aggrieved, CASI, the Union and the Union officers and members elevated the matter to this Court. The cases were docketed as G.R. Nos. 155109 and 155135.^[68][11]

During the pendency of the cases, the affected Union members (who were ordered reinstated) filed with the LA a motion for reinstatement pending appeal and the computation of their backwages. Instead of reinstating the Union members, the LA awarded separation pay and other benefits.^[69][12]  On appeal, the NLRC denied the Union members’ claim for separation pay, accrued wages and other benefits.^[70][13] When elevated to the CA, the appellate court held that reinstatement pending appeal applies only to illegal dismissal cases under Article 223 of the Labor Code and not to cases under Article 263.^[71][14]  Hence, the petition by theUnion and its officers and members in G.R. No. 179220.

        G.R. Nos. 155109, 155135, and 179220 were consolidated. On September 29, 2010, the Court rendered a decision the dispositive portion of which reads:

WHEREFORE, the Court DENIES the petition of the Nagkahiusang Mamumuo sa Alsons-SPFL and its officers and members in G.R. No. 155135 for lack of merit, and REVERSES and SETS ASIDE the decision of the Court of Appeals in CA-G.R. SP 59604 dated March 20, 2002. The Court, on the other hand, GRANTS the petition of C. Alcantara & Sons, Inc. in G.R. 155109 and REINSTATES the decision of the National Labor Relations Commission in NLRC CA M-004996-99 dated November 8, 1999.

Further, the Court PARTIALLY GRANTS the petition of the Nagkahiusang Mamumuo sa Alsons-SPFL and their dismissed members in G.R. No. 179220 and ORDERS C. Alcantara & Sons, Inc. to pay the terminated Union members backwages for four (4) months and nine (9) days and separation pays equivalent to one-half month salary for every year of service to the company up to the date of their termination, with interest of 12% per annum from the time this decision becomes final and executory until such backwages and separation pays are paid. The Court DENIES all other claims.

SO ORDERED.^[72][15]

        The Court agreed with the CA on the illegality of the strike as well as the termination of the Union officers, but disagreed with the CA insofar as it affirmed the reinstatement of the Union members. The Court, instead, sustained the dismissal not only of the Union officers but also the Union members who, during the illegal strike, committed prohibited acts by threatening, coercing, and intimidating non-striking employees, officers, suppliers and customers; obstructing the free ingress to and egress from the company premises; and resisting and defying the implementation of the writ of preliminary injunction issued against the strikers.^[73][16]

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         The Court further held that the terminated Union members, who were ordered reinstated by the LA, should have been immediately reinstated due to the immediate executory nature of the reinstatement aspect of the LA decision. In view, however, of CASI’s failure to reinstate the dismissed employees, the Court ordered CASI to pay the terminated Union members their accrued backwages from the date of the LA decision until the eventual reversal by the NLRC of the order of reinstatement.^[74][17] In addition to the accrued backwages, the Court awarded separation pay as a form of financial assistance to the Union members equivalent to one-half month salary for every year of service to the company up to the date of their termination.^[75][18] 

        Not satisfied, CASI filed a Motion for Partial Reconsideration of the above decision based on the following grounds:

I.

IT IS RESPECTFULLY SUBMITTED THAT A PRECEDENT SETTING RULING OF THIS HONORABLE COURT IN ESCARIO V. NLRC [G.R. No. 160302, 27 SEPTEMBER 2010] – PARTICULARLY ON THE PROPER APPLICATION OF ARTICLES 264 AND 279 OF THE LABOR CODE – SUPPORTS THE AFFIRMATION AND NOT THE REVERSAL OF THE FINDINGS OF THE COURT OF APPEALS [“CA”], AND NEGATES THE ENTITLEMENT TO ACCRUED WAGES OF THE UNION MEMBERS WHO COMMITTED ILLEGAL ACTS DURING THE ILLEGAL STRIKE, NOTWITHSTANDING THAT THE LABOR ARBITER AWARDED THE SAME.

II.

IT IS RESPECTFULY SUBMITTED THAT THIS HONORABLE COURT ERRED WHEN IT RESOLVED TO GRANT SEPARATION PAY TO THE UNION MEMBERS WHO COMMITTED ILLEGAL ACTS DURING THE ILLEGAL STRIKE CONSIDERING THAT JURISPRUDENCE CITED TO JUSTIFY THE GRANT OF SEPARATION PAY DO NOT APPLY TO THE PRESENT CASE AS IT APPLIES ONLY TO DISMISSALS FOR A JUST CAUSE.^[76][19]

        The Union, its officers and members likewise filed their separate motion for reconsideration assailing the Court’s conclusions that: (1) the strike is illegal; (2) that the officers of the Union and its appointed shop stewards automatically forfeited their employment status when they participated in the strike; (3) that the Union members committed illegal acts during the strike and are deemed to have lost their employment status; and (4) that CASI is entitled to actual damages and attorney’s fees.^[77][20] They also fault the Court in not finding that: (1) CASI and its officers are guilty of acts of unfair labor practice or violation of Article 248 of the Labor Code; (2) the lockout declared by the company is illegal; (3) CASI and its officers committed acts of discrimination; (4) CASI and its officers violated Article 254 of the Labor Code; and (5) CASI and its officers are liable for actual, moral, and exemplary damages to the Union, its officers and members.^[78][21]

        Simply stated, CASI only questions the propriety of the award of backwages and separation pay, while the Union, its officers and members seek the reversal of the Court’s conclusions on the illegality of the strike, the validity of the termination of the Union officers and members, and the award of actual damages and attorney’s fees as well as the denial of their counterclaims against CASI.

        After a careful review of the records of the case, we find it necessary to reconsider the Court’s September 29, 2010 decision, but only as to the award of separation pay.

        The LA, the NLRC, the CA and the Court are one in saying that the strike staged by the Union, participated in by the Union officers and members, is illegal being in violation of the no strike-no lockout provision of the CBA which enjoined both the Union and the company from resorting to the use of economic weapons available to them under the law and to instead take recourse to voluntary arbitration in settling their disputes.^[79][22] We, therefore, find no reason to depart from such conclusion.

        Article 264 (a) of the Labor Code lays down the liabilities of the Union officers and members participating in illegal strikes and/or committing illegal acts, to wit:

ART. 264. PROHIBITED ACTIVITIES

(a)    x x x

Any worker whose employment has been terminated as a consequence of an unlawful lockout shall be entitled to reinstatement with full backwages. Any Union officer who knowingly participates in an illegal strike and any worker or Union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike.

Thus, the above-quoted provision sanctions the dismissal of a Union officer who knowingly participates in an illegal strike or who knowingly participates in the commission of illegal acts during a lawful strike.^[80][23]  In this case, the Union officers were in clear breach of the above provision of law when they knowingly participated in the illegal strike.^[81][24]

As to the Union members, the same provision of law provides that a member is liable when he knowingly participates in the commission of illegal acts during a strike. We find no reason to reverse the conclusion of the Court that CASI presented substantial evidence to show that the striking Union members committed the following prohibited acts:

a.       They threatened, coerced, and intimidated non-striking employees, officers, suppliers and customers; 

b.      They obstructed the free ingress to and egress from the company premises; and

c.       They resisted and defied the implementation of the writ of preliminary injunction issued against the strikers.^[82][25]

The commission of the above prohibited acts by the striking Union members warrants their dismissal from employment.

        As clearly narrated earlier, the LA found the strike illegal and sustained the dismissal of the Union officers, but ordered the reinstatement of the striking Union members for lack of evidence showing that they committed illegal acts during the illegal strike. This decision, however, was later reversed by the NLRC.  Pursuant to Article 223^[83][26] of the Labor Code and well-established jurisprudence,^[84][27] the decision of the LA reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be executory, pending appeal.^[85][28] The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation, or, at the option of the employee, merely reinstated in the payroll.^[86][29] It is obligatory on the part of the employer to reinstate and pay the wages of the dismissed employee during the period of appeal until reversal by the higher court.^[87][30] If the employer fails to exercise the option of re-admitting the employee to work or to reinstate him in the payroll, the employer must pay the employee’s salaries during the period between the LA’s order of reinstatement pending appeal and the resolution of the higher court overturning that of the LA.^[88][31] In this case, CASI is liable to pay the striking Union members their accrued wages for four months and nine days, which is the period from the notice of the LA’s order of reinstatement until the reversal thereof by the NLRC.^[89][32]

        Citing Escario v. National Labor Relations Commission (Third Division),^[90][33]  CASI claims that the award of the four-month accrued salaries to the Union members is not sanctioned by jurisprudence. In Escario, the Court categorically stated that the strikers were not entitled to their wages during the period of the strike (even if the strike might be legal), because they performed no work during the strike. The Court further held that it was neither fair nor just that the dismissed employees should litigate against their employer on the latter’s time.^[91][34] In this case, however, the four-month accrued salaries awarded to the Union members are not the backwages referred to in Escario. To be sure, the awards were not given as their salaries during the period of the strike. Rather, they constitute the employer’s liability to the employees for its failure to exercise the option of actual reinstatement or payroll reinstatement following the LA’s decision to reinstate the Union members as mandated by Article 223 of the Labor Code adequately discussed earlier. In other words, such monetary award refers to the Union members’ accrued salaries by reason of the reinstatement order of the LA which is self-executory pursuant to Article 223.^[92][35] We, therefore, sustain the award of the four-month accrued salaries.

        Finally, as regards the separation pay as a form of financial assistance awarded by the Court, we find it necessary to reconsider the same and delete the award pursuant to prevailing jurisprudence.

        Separation pay may be given as a form of financial assistance when a worker is dismissed in cases such as the installation of labor-saving devices, redundancy, retrenchment to prevent losses, closing or cessation of operation of the establishment, or in case the employee was found to have been suffering from a disease such that his continued employment is prohibited by law.^[93][36]  It is a statutory right defined as the amount that an employee receives at the time of his severance from the service and is designed to provide the employee with the wherewithal during the period that he is looking for another employment.^[94][37] It is oriented towards the immediate future, the transitional period the dismissed employee must undergo before locating a replacement job.^[95][38] As a general rule, when just causes for terminating the services of an employee exist, the employee is not entitled to separation pay because lawbreakers should not benefit from their illegal acts.^[96][39] The rule, however, is subject to exceptions.^[97][40] The Court, in Philippine Long Distance Telephone Co. v. NLRC,^[98][41] laid down the guidelines when separation pay in the form of financial assistance may be allowed, to wit:

We hold that henceforth separation pay shall be allowed as a measure of social justice only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. Where the reason for the valid dismissal is, for example, habitual intoxication or an offense involving moral turpitude, like theft or illicit sexual relations with a fellow worker, the employer may not be required to give the dismissed employee separation pay, or financial assistance, or whatever other name it is called, on the ground of social justice.

A contrary rule would, as the petitioner correctly argues, have the effect, of rewarding rather than punishing the erring employee for his offense. And we do not agree that the punishment is his dismissal only and that the separation pay has nothing to do with the wrong he has committed x x x.^[99][42]  

        We had the occasion to resolve the same issue in Toyota Motor Phils. Corp. Workers Association (TMPCWA) v. National Labor Relations Commission.^[100][43]  Following the declaration that the strike staged by the Union members is illegal, the Union officers and members were considered validly dismissed from employment for committing illegal acts during the illegal strike. The Court affirmed the CA’s conclusion that the commission of illegal acts during the illegal strike constituted serious misconduct.^[101][44] Hence, the award of separation pay to the Union officials and members was not sustained.^[102][45]  

        Indeed, we applied social justice and equity considerations in several cases to justify the award of financial assistance. In Piñero v. National Labor Relations Commission,^[103][46] the Court declared the strike to be illegal for failure to comply with the procedural requirements. We, likewise, sustained the dismissal of the Union president for participating in said illegal strike. Considering, however, that his infraction is not so reprehensible and unscrupulous as to warrant complete disregard of his long years of service, and considering further that he has no previous derogatory records, we granted financial assistance to support him in the twilight of his life after long years of service.^[104][47] The same compassion was also applied in Aparente, Sr. v. NLRC^[105][48] where the employee was declared to have been validly terminated from service after having been found guilty of driving without a valid driver’s license, which is a clear violation of the company’s rules and regulations.^[106][49] We, likewise, awarded financial assistance in Salavarria v. Letran College^[107][50] to the legally dismissed teacher for violation of school policy because such infraction neither amounted to serious misconduct nor reflected that of a morally depraved person.  

        However, in a number of cases cited in Toyota Motor Phils. Corp. Workers Association (TMPCWA) v. National Labor Relations Commission,^[108][51] we refrained from awarding separation pay or financial assistance to Union officers and members who were separated from service due to their participation in or commission of illegal acts during the strike.^[109][52]  In Pilipino Telephone Corporation v. Pilipino Telephone Employees Association (PILTEA),^[110][53] the strike was found to be illegal because of procedural infirmities and for defiance of the Secretary of Labor’s assumption order. Hence, we upheld the Union officers’ dismissal without granting financial assistance. In Sukhotai Cuisine and Restaurant v. Court of Appeals,^[111][54] and Manila Diamond Hotel and Resort, Inc. (Manila Diamond Hotel) v. Manila Diamond Hotel Employees Union,^[112][55] the Union officers and members who participated in and committed illegal acts during the illegal strike were deemed to have lost their employment status and were not awarded financial assistance.

In Telefunken Semiconductors Employees Union v. Court of Appeals,^[113][56] the Court held that the strikers’ open and willful defiance of the assumption order of the Secretary of Labor constitute serious misconduct and reflective of their moral character, hence, granting of financial assistance to them cannot be justified. In Chua v. National Labor Relations Commission,^[114][57] we disallowed the award of financial assistance to the dismissed employees for their participation in the unlawful and violent strike which resulted in multiple deaths and extensive property damage because it constitutes serious misconduct on their part.

        Here, not only did the Court declare the strike illegal, rather, it also found the Union officers to have knowingly participated in the illegal strike. Worse, the Union members committed prohibited acts during the strike. Thus, as we concluded in Toyota, Telefunken, Chua and the other cases cited above, we delete the award of separation pay as a form of financial assistance.

        WHEREFORE, premises considered, the motion for reconsideration of the Union, its officers and members are DENIED for lack of merit, while the motion for partial reconsideration filed by C. Alcantara & Sons, Inc. is PARTLY GRANTED. The Decision of the Court dated September 29, 2010 is hereby PARTLY RECONSIDERED by deleting the award of separation pay.

SO ORDERED.

                                DIOSDADO M. PERALTA

                                Associate Justice

WE CONCUR:

ANTONIO T. CARPIO

Associate Justice

Chairperson

PRESBITERO J. VELASCO, JR.               JOSE CATRAL MENDOZA

               Associate Justice                              Associate Justice

BIENVENIDO L. REYES

Associate Justice

ATTESTATION

        I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                ANTONIO T. CARPIO

        Associate Justice

Special Second Division, Chairperson

        CERTIFICATION

        Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                        RENATO C. CORONA

                                                                  Chief Justice

CASE 2012-0049: JUDGE ADORACION G. ANGELES VS. HON. MA. MERCEDITAS N. GUTIERREZ, OMBUDSMAN; HON. ORLANDO C. CASIMIRO, OVERALL DEPUTY OMBUDSMAN; HON. SYLVIA A. SEVERO, GRAFT INVESTIGATOR AND PROSECUTION OFFICER I; HON. MARILOU B. ANCHETA-MEJICA, ACTING DIRECTOR, PIAB-D; HON. JOSE T. DE JESUS, JR., ASSISTANT OMBUDSMAN, PAMO; ALL OF THE OMBUDSMAN; AND SSP EMMANUEL Y. VELASCO (G.R. NOS. 189161 & 189173, MARCH 21, 2012, SERENO, J.) SUBJECT/S: POWER OF THE COURT OVER THE OMBUDSMAN’S EXERCISE OF ITS INVESTIGATIVE AND PROSECUTORIAL POWERS  (BRIEF TITLE: JUDGE ANGELES VS. OMBUDSMAN)

=======================

DISPOSITIVE:

WHEREFORE, we DISMISS the Petition for Certiorari filed by Judge Adoracion G. Angeles. We AFFIRM the two Joint Orders of the Ombudsman in Case Nos. OMB-C-C-07-0103-C and OMB-C-A-O7-0117-C dated 21 March 2007 and 30 June 2008, respectively.

SO ORDERED.

=======================

Republic of the Philippines
Supreme Court
Manila

SECOND DIVISION

x – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x

D E C I S I O N

SERENO, J.:

The Case

This is a special civil action for certiorari under Rule 65 of the 1997 Rules of Court. The Court is once again asked to determine whether the Office of the Ombudsman (Ombudsman) committed grave abuse of discretion in the exercise of its discretionary powers to investigate and prosecute criminal complaints.

This Petition dated 01 September 2009 seeks to set aside the Joint Order^[1][1] dated 21 March 2007 of the Ombudsman (the questioned Joint Order) exonerating respondent Senior State Prosecutor Emmanuel Y. Velasco (respondent Velasco or respondent) from the charges filed by petitioner Judge Adoracion G. Angeles (petitioner Judge Angeles or petitioner).

The Facts

The Complaint filed with the Ombudsman

          Petitioner Judge Angeles was, at the time this Petition was filed, the Presiding Judge of Branch 121 of the Caloocan City Regional Trial Court (RTC); while private respondent Velasco was a senior state prosecutor at the Department of Justice (DOJ).

On 20 February 2007, petitioner Judge Angeles filed a criminal Complaint against respondent Velasco with the Ombudsman^[2][2] and sought his indictment before the Sandiganbayan for the following acts allegedly committed in his capacity as a prosecutor:

1.       Giving an unwarranted benefit, advantage or preference to the accused in a criminal case for smuggling by failing to present a material witness;

2.       Engaging in private practice by insisting on the reopening of child abuse cases against petitioner;

3.       Falsifying a public document to make it appear that a clarificatory hearing on the child abuse Complaint was conducted.^[3][3]

Failure to present a material witness

          According to the Complaint, respondent Velasco, who was the trial prosecutor in a criminal case involving the smuggling of jewelry,^[4][4] failed to present a material witness in the aforesaid case.^[5][5] The witness, a gemmologist of the Bureau of Customs, was to testify on the type of  substance making up the pieces of smuggled jewelry.^[6][6]

          According to petitioner, considering the materiality of the gemmologist’s testimony, which respondent must have known of, since he was the handling trial prosecutor of the case, his failure to offer the said testimony in court shows that he tried to suppress the evidence in favor of the accused in the said case. This act was alleged to be in violation of Section 3(e) of the Anti Graft and Corrupt Practices Act,^[7][7] which considers as a corrupt practice the acts of public officers that give unwarranted benefits to any private party through either manifest partiality, evident bad faith, or gross inexcusable negligence in the discharge of their official functions.^[8][8]

The gemmologist, however, was eventually presented as a witness after respondent Velasco had filed a Motion to adduce additional evidence in the said case.^[9][9]

Insistence on the reopening of child abuse cases

The second act complained of refers to respondent Velasco’s filing of two Petitions to reopen the child abuse cases filed against petitioner Judge Angeles. Petitioner was previously charged with inflicting physical and psychological abuse on Maria Mercedes Vistan, her 13-year-old grandniece.^[10][10] Respondent was the one who conducted the preliminary investigation of the Complaint for child abuse and later indicted petitioner for 21 counts thereof.^[11][11] However, the DOJ later on reversed respondent Velasco’s recommendation^[12][12] upon a Petition for Review filed by respondent. Consequently, the Informations, which had been filed in the meantime, were ordered withdrawn by the trial court.^[13][13] Petitioner later filed an administrative Complaint against respondent for gross misconduct, gross ignorance of the law, incompetence, and manifest bad faith arising from the alleged malicious indictment.

According to petitioner, the move of respondent to reopen the child abuse cases was allegedly meant to exact vengeance for petitioner’s filing of the above-mentioned administrative Complaint.^[14][14] Meanwhile, the two Petitions to reopen the child abuse cases, which were filed by respondent in the DOJ and the Office of the President, were denied for having been filed in the wrong venues.

Petitioner alleges in her Complaint that since respondent Velasco was not the trial prosecutor in the said case, his unauthorized act of filing two Petitions to reopen the child abuse cases constituted a violation of Section 7(b)(2) of the Code of Conduct and Ethical Standards for Public Officials and Employees.^[15][15] This code considers as unlawful the acts of public officials and employees engaging in the private practice of their profession, unless authorized by the Constitution or by law.^[16][16] This single act of moving to reopen the child abuse cases was the only instance of private practice imputed to respondent Velasco. No other act constituting private practice was cited by petitioner.

Falsification of Public Document

The alleged falsification of public document arose from the same preliminary investigation conducted by respondent in the child abuse cases mentioned above. According to petitioner Judge Angeles, respondent Velasco made it appear that he had conducted a clarificatory hearing on the Complaint for child abuse on 22 June 1999 as shown in the Minutes^[17][17] of the said hearing.^[18][18] Petitioner alleges that Leonila Vistan, the witness who supposedly attended the hearing, was seriously sick and could not have appeared at the alleged clarificatory hearing.^[19][19] Moreover, respondent had, in fact, resolved the cases two days earlier, on 20 June 1999, as shown by the date on the Resolution indicting petitioner. Thus, the latter alleges, the Minutes of the hearing on 22 June 1999 must have been falsified by respondent by making it appear that Leonila Vistan had participated in an inexistent proceeding. This act is in violation of Article 171 of the Revised Penal Code,^[20][20] which criminalizes it as a falsification of a public document.^[21][21]

The Decision of the Ombudsman

In the questioned Joint Order, the Ombudsman dismissed the charges against respondent Velasco. It found that after evaluation of the facts and evidence presented by complainant, there was no cause to conduct a preliminary investigation or an administrative adjudication with regard to the charges.

On the first charge of suppression of testimonial evidence in connection with the smuggling case, the Ombudsman dismissed the charge on the ground that petitioner had no sufficient personal interest in the subject matter of the grievance.^[22][22] The Ombudsman explained that petitioner was neither one of the parties nor the presiding judge in the said criminal case and, therefore, had no personal interest in it.

Moreover, granting that the personal interest of petitioner was not in issue, respondent Velasco acted based on his discretion as prosecutor and his appreciation of the evidence in the case, and any lapse in his judgment cannot be a source of criminal liability. The Ombudsman said that it had no authority to investigate the prosecutor’s exercise of discretion, unless there is sufficient evidence that the exercise was tainted with malice and bad faith.^[23][23]

The Ombudsman likewise dismissed the second charge of private practice of profession on the ground of failure to exhaust administrative remedies.^[24][24] It pointed out that petitioner should have first elevated her concern to the DOJ, which had primary jurisdiction over respondent’s actions and conduct as public prosecutor.^[25][25]  Moreover, the Ombudsman found that respondent Velasco was not engaged in private practice when he filed the two Petitions for the reopening of the child abuse cases against petitioner, since he was the investigating prosecutor of the said cases.^[26][26]

Finally, on the falsification of a public document, which was also dismissed, the Ombudsman said that the issue should have been raised earlier, when petitioner Judge Angeles filed her Petition for Review of the Resolution of respondent Velasco. Moreover, petitioner should have substantiated the allegation of falsification, because the mere presentation of the alleged falsified document did not in itself establish falsification.   The Ombudsman also ruled that with the belated filing of the charge and the reversal by the DOJ of respondent Velasco’s Resolution indicting petitioner, the materiality of the alleged falsified document is no longer in issue.^[27][27]

Petitioner filed a Motion for Reconsideration^[28][28] of the questioned Joint Order, which was denied by the Ombudsman for lack of merit.^[29][29]

Hence, the present Rule 65 Petition.

Issue

Whether the Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction in dismissing the Complaint against respondent Velasco.

The Court’s Ruling

We dismiss the Petition.

I

Power of the Court over the Ombudsman’s Exercise

of its Investigative and Prosecutorial Powers

As a general rule, the Court does not interfere with the Ombudsman’s exercise of its investigative and prosecutorial powers without good and compelling reasons.  Such reasons are clearly absent in the instant Petition.

At the outset, we emphasize that certiorari is an extraordinary prerogative writ that is never demandable as a matter of right.  Also, it is meant to correct only errors of jurisdiction and not errors of judgment committed in the exercise of the discretion of a tribunal or an officer. This is especially true in the case of the exercise by the Ombudsman of its constitutionally mandated powers. That is why this Court has consistently maintained its well-entrenched policy of non-interference in the Ombudsman’s exercise of its investigatory and prosecutorial powers.^[30][30]

General   Rule   of  Non-Interference

with the Plenary Powers of the Ombudsman

The general rule has always been non-interference by the courts in the exercise by the office of the prosecutor or the Ombudsman of its plenary investigative and prosecutorial powers. In Esquivel v. Ombudsman,^[31][31] we explained thus:

The Ombudsman is empowered to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts. Settled is the rule that the Supreme Court will not ordinarily interfere with the Ombudsman’s exercise of his investigatory and prosecutory powers without good and compelling reasons to indicate otherwise. Said exercise of powers is based upon the constitutional mandate and the court will not interfere in its exercise. The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman, but upon practicality as well. Otherwise, innumerable petitions seeking dismissal of investigatory proceedings conducted by the Ombudsman will grievously hamper the functions of the office and the courts, in much the same way that courts will be swamped if they had to review the exercise of discretion on the part of public prosecutors each time they decided to file an information or dismiss a complaint by a private complainant. (Emphasis supplied; citations omitted.)

In Presidential Commission on Good Government v. Desierto,^[32][32] we further clarified the plenary powers of the Ombudsman. We emphasized that if the latter, using professional judgment, finds a case dismissible, the Court shall respect that finding, unless the exercise of such discretionary power was tainted with grave abuse of discretion.

The Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto^[33][33] explained the rationale for the plenary powers of the Ombudsman, which is virtually free from legislative, executive or judicial intervention. Its plenary powers were constitutionally designed to insulate it from outside pressure and improper influence. Accordingly, the Court has consistently respected and recognized, as we do now in this case, the  independence and competence of the Ombudsman, as it acts as “the champion of the people and the preserver of the integrity of public service.”

The Discretionary Nature of 

Preliminary Investigation

The determination by the Ombudsman of probable cause or of whether there exists a reasonable ground to believe that a crime has been committed, and that the accused is probably guilty thereof, is usually done after the conduct of a preliminary investigation. However, a preliminary investigation is by no means mandatory.

 The Rules of Procedure of the Office of the Ombudsman (Ombudsman Rules of Procedure),^[34][34] specifically Section 2 of Rule II, states:

Evaluation. — Upon evaluating the complaint, the investigating officer shall recommend whether it may be: a) dismissed outright for want of palpable merit; b) referred to respondent for comment; c) indorsed to the proper government office or agency which has jurisdiction over the case; d) forwarded to the appropriate officer or official for fact-finding investigation; e) referred for administrative adjudication; or f) subjected to a preliminary investigation.

Thus, the Ombudsman need not conduct a preliminary investigation upon receipt of a complaint. Indeed, we have said in Knecht v. Desierto^[35][35] and later in Mamburao, Inc. v. Office of the Ombudsman^[36][36] and Karaan v. Office of the Ombudsman^[37][37] that should investigating officers find a complaint utterly devoid of merit, they may recommend its outright dismissal. Moreover, it is also within their discretion to determine whether or not preliminary investigation should be conducted.

The Court has undoubtedly acknowledged the powers of the Ombudsman to dismiss a complaint outright without a preliminary investigation in The Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto.^[38][38]

We reiterate that the Ombudsman has full discretion to determine whether a criminal case should be filed, including whether a preliminary investigation is warranted.  The Court therefore gives due deference to the Ombudsman’s decision to no longer conduct a preliminary investigation in this case on the criminal charges levelled against respondent Velasco.

II

No Grave Abuse of Discretion in the

Ombudsman’s Evaluation of Evidence

This Court acknowledges exceptional cases calling for a review of the Ombudsman’s action when there is a charge and sufficient proof to show grave abuse of discretion.

Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction; or the exercise of power in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility. The abuse must be in a manner so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.^[39][39]

The determination of grave abuse of discretion as the exception to the general rule of non-interference in the Ombudsman’s exercise of its powers is precisely the province of the extraordinary writ of certiorari. However, we highlight the exceptional nature of that determination.

In this Petition, we do not find any grave abuse of discretion that calls for the Court’s exceptional divergence from the general rule.

Notably, the burden of proof to show grave abuse of discretion is on petitioner, and she has failed to discharge this burden. She  merely states why she does not agree with the findings of the Ombudsman, instead of demonstrating and proving grave abuse of discretion. In her arguments, petitioner would also have us pass upon the factual findings of the Ombudsman. That we cannot do, for this Court is not a trier of facts.

Even if we were to extend liberally the exception to the general rule against the review of the findings of the Ombudsman, an examination of the records would show that no grave abuse of discretion was demonstrated to warrant a reversal of the Joint Order dismissing the Complaint against respondent Velasco.

A. On the first charge of suppression of evidence

On the charge of suppression of evidence arising from the failure of respondent Velasco to present the testimony of a material witness, the Ombudsman found – and  we defer to its findings – that he acted based on his discretion as prosecutor and on his appreciation of the evidence in the case, and any lapse in his judgment cannot be a source of criminal liability. The Ombudsman also found that there was no sufficient evidence that the failure of respondent to present the witness was tainted with malice; or that the failure of respondent to do so gave any private party unwarranted benefit, advantage or preference in the discharge of the former’s official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence.

Moreover, in G.R. No. 187596,^[40][40] a case involving the same incidents and parties as the present Petition, this Court affirmed the factual findings of the Court of Appeals (CA). We take judicial notice of the CA’s factual finding that the charge of suppression of evidence by respondent in the smuggling case was dispelled by the Chief State Prosecutor himself in a Certification dated 17 October 2002.^[41][41] The Certification vouching for the integrity and competence of respondent in his handling of the smuggling case states:

This is to certify that I had never called the attention nor even had castigated State Prosecutor EMMANUEL Y. VELASCO with regard to the way he handled the case of People of the Philippines versus Lintag, et al. (Pasay Regional Trial Court, Criminal Case Number 99-0129, for violation of the Tariff and Customs Code of the Philippines) specifically with regard to the aspect of the presentation of one of the prosecution’s witnesses, a gemologist (sic).  In fact, SP Velasco successfully prosecuted said case.^[42][42]

Thus, we find no grave abuse of discretion in the Ombudsman’s dismissal of the first charge.

However, we need to clarify that we cannot subscribe to the other reason for the Ombudsman’s dismissal of the charge pursuant to paragraph 4, Section 20 of the Ombudsman Act. The provision allows the Ombudsman to decide not to conduct the necessary investigation of any administrative act or omission complained of, if it believes that the complainant has no sufficient personal interest in the subject matter of the grievance. It is clear that, in relation to Section 19, Section 20 of the Ombudsman Act applies only to administrative cases. As for Section 19, its subject heading is “Administrative Complaints.” It lists acts or omissions that may be the subject of a complaint on which the Ombudsman shall act. On the other hand, the subject heading of Section 20 is “Exceptions.”  It lists the exceptional situations in which the Ombudsman has the option not to investigate an administrative complaint even when its subject is an act or omission listed in Section 19. That both Sections 19 and 20 of the Ombudsman Act apply only to administrative complaints is made even clearer in the Ombudsman Rules of Procedure.  Their counterpart provisions appear in the Ombudsman Rules of Procedure under Rule III which outlines the procedure for administrative cases.^[43][43]  Clearly, then, paragraph 4, Section 20 of the Ombudsman Act applies only to administrative complaints. It should not have been used by the Ombudsman as a ground to dismiss the first charge, since the Complaint filed by petitioner before the Ombudsman was criminal in nature. The criminal nature of petitioner’s Complaint is clear from its prayer seeking the indictment of respondent before the Ombudsman.^[44][44] This lapse notwithstanding, we do not find any arbitrariness or whim in the manner that the Ombudsman disposed of the charge. If there was any abuse of discretion at all, it was not grave.

B. On the second charge of private practice

The Ombudsman found that respondent Velasco was not engaged in private practice when he filed two Petitions for the reopening of the child abuse cases against petitioner on the ground that respondent was acting in his capacity as the investigating prosecutor of the said cases. Again, this Court takes judicial notice of the CA’s finding in G.R. No. 187596, adverted to earlier, that respondent’s isolated act of filing a pleading did not necessarily constitute private practice of law.^[45][45] We have, in fact, said so in Maderada v. Mediodea,^[46][46] citing People v. Villanueva:^[47][47]

Private practice has been defined by this Court as follows:

“Practice is more than an isolated appearance, for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is frequent habitual exercise. Practice of law to fall within the prohibition of statute [referring to the prohibition for judges and other officials or employees of the superior courts or of the Office of the Solicitor General from engaging in private practice] has been interpreted as customarily or habitually holding one’s self out to the public, as a lawyer and demanding payment for such services.  x x x.”

Clearly, by no stretch of the imagination can the act of respondent Velasco be considered private practice, since he was not customarily or habitually holding himself out to the public as a lawyer and demanding payment for those services. The appellate court also noted that, on the contrary, he filed the motion in good faith and in the honest belief that he was performing his duty as a public servant.^[48][48]

Thus, the Ombudsman did not commit any grave abuse of discretion when it dismissed the second charge against respondent Velasco.

However, we again need to point out that we do not share the Ombudsman’s finding that the charge is dismissible on the ground of failure to exhaust administrative remedies pursuant to paragraph 1, Section 20 of the Ombudsman Act. As already explained earlier, the said provision applies only to administrative cases, while the Complaint before the Ombudsman was not administrative, but criminal, in nature.  Still, we do not find any abuse of discretion when the Ombudsman proffered this ground for dismissing the second charge.

C. On the third charge of falsification of public document

Finally, the Ombudsman correctly found that the charge of falsification had not been substantiated, and that the mere presentation of the alleged manufactured document alone would not in itself establish falsification. To recall, petitioner Angeles claimed that Leonila Vistan could not have appeared before respondent Velasco because she was sick, but offered no supporting evidence. Also, it does not follow that a clarificatory hearing could not have been conducted, just because respondent Velasco had prepared a Resolution on 20 June 1999, two days before that hearing.

Moreover, as found by the CA in G.R. No. 187596 adverted to earlier, a clarificatory hearing was in fact conducted. The appellate court found that the declarations of petitioner could not prevail over the positive assertion of Percival Abril and Jesusa Hernandez, who testified that they had seen Leonila Vistan before Velasco at the clarificatory hearing on 22 June 1999.^[49][49]

However, the Court differs with the Ombudsman on the latter’s pronouncement that the issue of falsification of public document should have been raised by petitioner earlier, when she filed her Petition for Review of the Resolution of respondent Velasco; and that, consequently, the charge of falsification of a public document was no longer in issue because of its belated filing. We draw attention to the fact that the Petition for Review of respondent’s Resolution indicting petitioner Judge Angeles was under an entirely different proceeding. The purpose of the Petition was to reverse the aforesaid Resolution, and not to exact criminal liability on respondent for the crime of falsification of a public document, as in the Complaint before the Ombudsman. Thus, it cannot be said that the issue of falsification of a public document in the criminal Complaint was raised belatedly, because the Complaint was not a continuation of the previous Petition for Review of respondent’s Resolution. The two proceedings were completely independent of each other. This lapse, however, did not constitute grave abuse of discretion.

In sum, this Court finds no compelling reason to depart from its long-standing policy of non-interference in the exercise by the Ombudsman of its investigatory and prosecutorial powers which, as we have emphasized, are plenary.

Although the Court diverges from some of the conclusions reached by the Ombudsman, we find that its dismissal of the charges against respondent Velasco was arrived at after a rational deliberation.  Such deliberation was shown by its reasoned disposition of the case in the exercise of its constitutionally mandated discretionary powers. The Ombudsman did not overstep the boundaries of its plenary powers and acted within the permissible limits. We do not find any arbitrariness or abuse that was so gross and patent in the manner it exercised its discretion as would warrant this Court’s reversal. 

Absent a clear showing of grave abuse of discretion, we uphold the findings of the Ombudsman.

Final Note

Finally, the Court notes with strong disapproval both parties’ resort to abuse of the judicial processes of this Court. This is the third case we know of that the parties have filed against each other, and that has reached the Supreme Court.^[50][50]

This fact is especially regrettable, considering that petitioner as judge and respondent as prosecutor should have been well-cognizant of our clogged court dockets and should have thus exercised more restraint in filing cases against each other. Canon 12 of the Code of Professional Responsibility enjoins a lawyer from filing multiple actions arising from the same cause and from misusing court process.^[51][51] Judging from the number of cases and the vengeful tone of the charges that the parties have hurled against each other in their pleadings, they seem more bent on settling what has become a personal score between them, rather than on achieving the ends of justice.^[52][52]

The parties are warned against trifling with court process. This case shall, hopefully, serve as a reminder of their ethical and professional duties and put an immediate end to their recriminations.

WHEREFORE, we DISMISS the Petition for Certiorari filed by Judge Adoracion G. Angeles. We AFFIRM the two Joint Orders of the Ombudsman in Case Nos. OMB-C-C-07-0103-C and OMB-C-A-O7-0117-C dated 21 March 2007 and 30 June 2008, respectively.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO

Associate Justice

Chairperson

    ARTURO D. BRION                                   JOSE PORTUGAL PEREZ                    

         Associate Justice                                                   Associate Justice

BIENVENIDO L. REYES

Associate Justice

A T T E S T A T I O N

          I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                              ANTONIO T. CARPIO

                                                                    Associate Justice

                                                          Chairperson, Second Division

C E R T I F I C A T I O N

          Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA

                                                                            Chief Justice