J.A.B. Bulao & Associates

CASE 2012-0008: LYNVIL FISHING ENTERPRISES, INC. AND/OR ROSENDO S. DE BORJA VS. ANDRES G. ARIOLA, JESSIE D. ALCOVENDAS,  JIMMY B. CALINAO AND LEOPOLDO G. SEBULLEN (G.R. NO. 181974, 01 FEBRUARY 2012, PEREZ, J.) SUBJECT/S: TERMINATION FOR BREACH OF TRUST; CONDITIONS FOR THE VALIDITY OF A FIXED-CONTRACT AGREEMENT; RULING OF PROSECUTOR NOT DETERMINATIVE; PENALTY IN CASE THE TWO NOTICE RULE IS NOT FOLLOWED; (BRIEF TITLE: LYNVIL FISHING VS. ARIOLA)

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DISPOSITIVE:

WHEREFORE, the petition is partially GRANTED.  The 10 September 2007 Decision of the Court of Appeals in CA-G.R. SP No. 95094 reversing the Resolution dated 31 March 2004 of the National Labor Relations Commission is hereby MODIFIED.  The Court hereby rules that the employees were dismissed for just cause by Lynvil Fishing Enterprises, Inc. and Rosendo S. De Borja, hence, the reversal of the award for backwages and separation pay.  However, we affirm the award for 13^th month pay, salary differential and grant an additional P50,000.00 in favor of the employees representing nominal damages for petitioners’ non-compliance with statutory due process. No cost.

SO ORDERED.

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SECOND DIVISION

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D E C I S I O N

PEREZ, J.:

Before the Court is a Petition for Review on Certiorari^[1][1] of the Decision^[2][2] of the Fourteenth Division of the Court of Appeals in CA-G.R. SP No. 95094 dated 10 September 2007, granting the Writ of Certiorari prayed for under Rule 65 of the 1997 Revised Rules of Civil Procedure by herein respondents Andres G. Ariola, Jessie D. Alcovendas, Jimmy B. Calinao and Leopoldo Sebullen thereby reversing the Resolution of the National Labor Relations Commission (NLRC).  The dispositive portion of the assailed decision reads:

WHEREFORE, premises considered, the Decision dated March 31, 2004 rendered by the National Labor Relations Commission is hereby REVERSED and SET ASIDE.  In lieu thereof, the Decision of the Labor Arbiter is hereby REINSTATED, except as to the award of attorney’s fees, which is ordered DELETED.^[3][3]

The version of the petitioners follows:

1.   Lynvil Fishing Enterprises, Inc. (Lynvil) is a company engaged in deep-sea fishing, operating along the shores of Palawan and other outlying islands of the Philippines.^[4][4]  It is operated and managed by Rosendo S. de Borja.

2.  On 1 August 1998, Lynvil received a report from Romanito Clarido, one of its employees, that on 31 July 1998, he witnessed that while on board the company vessel Analyn VIII,  Lynvil employees, namely: Andres G. Ariola (Ariola), the captain; Jessie D. Alcovendas (Alcovendas), Chief Mate; Jimmy B. Calinao (Calinao), Chief Engineer; Ismael G. Nubla (Nubla), cook; Elorde Bañez (Bañez), oiler; and Leopoldo D. Sebullen (Sebullen), bodegero, conspired with one another and stole eight (8) tubs of “pampano” and “tangigue” fish and delivered them to another vessel, to the prejudice of Lynvil.^[5][5]

3.   The said employees were engaged on a per trip basis or “por viaje” which terminates at the end of each trip.  Ariola, Alcovendas and Calinao were managerial field personnel while the rest of the crew were field personnel.^[6][6]

4.  By reason of the report and after initial investigation, Lynvil’s General Manager Rosendo S. De Borja (De Borja) summoned respondents to explain within five (5) days why they should not be dismissed from service.  However, except for Alcovendas and Bañez,^[7][7] the respondents refused to sign the receipt of the notice.

5.  Failing to explain as required, respondents’ employment was terminated. 

6.   Lynvil, through De Borja, filed a criminal complaint against the dismissed employees for violation of P.D. 532, or the Anti-Piracy and Anti-Highway Robbery Law of 1974 before the Office of the City Prosecutor of Malabon City.^[8][8]

7.   On 12 November 1998, First Assistant City Prosecutor Rosauro Silverio found probable cause for the indictment of the dismissed employees for the crime of qualified theft^[9][9] under the Revised Penal Code.

On the other hand, the story of the defense is:

1.   The private respondents were crew members of Lynvil’s vessel named Analyn VIII.^[10][10] 

2.    On 31 July 1998, they arrived at the Navotas Fishport on board Analyn VIII loaded with 1,241 bañeras of different kinds of fishes.  These bañeras were delivered to a consignee named SAS and Royale.^[11][11] 

The following day, the private respondents reported back to Lynvil office to inquire about their new job assignment but were told to wait for further advice.  They were not allowed to board any vessel.^[12][12]

3.  On 5 August 1998, only Alcovendas and Bañez received a memorandum from De Borja ordering them to explain the incident that happened on 31 July 1998.  Upon being informed about this, Ariola, Calinao, Nubla and Sebullen went to the Lynvil office.  However, they were told that their employments were already terminated.^[13][13]

Aggrieved, the employees filed with the Arbitration Branch of the National Labor Relations Commission-National Capital Region on 25 August 1998 a complaint for illegal dismissal with claims for backwages, salary differential reinstatement, service incentive leave, holiday pay and its premium and 13^th month pay from 1996 to1998.  They also claimed for moral, exemplary damages and attorney’s fees for their dismissal with bad faith.^[14][14] 

They added that the unwarranted accusation of theft stemmed from their oral demand of increase of salaries three months earlier and their request that they should not be required to sign a blank payroll and vouchers.^[15][15]

On 5 June 2002, Labor Arbiter Ramon Valentin C. Reyes found merit in complainants’ charge of illegal dismissal.^[16][16]  The dispositive portion reads:

WHEREFORE, premises considered, judgment is hereby rendered finding that complainants were illegally dismissed, ordering respondents to jointly and severally pay complainants (a) separation pay at one half month pay for every year of service; (b) backwages; (c) salary differential; (d) 13^th month pay; and (e) attorney’s fees, as follows:

“1) Andres Ariola

                        Backwages                                           P234,000.00

                        (P6,500.00 x 36 = P234,000.00)

                        Separation Pay – P74,650.00

                        13^th Month Pay – P6,500.00               

                                                                                    P325,250.00

“2) Jessie Alcovendas

                        Backwages                                           P195,328.00

                        (P5,148.00 x 36 = P195,328.00)

                        Separation Pay – P44,304.00

                        13^th Month Pay – 5,538.00

                        Salary Differential – 1,547.52  

                                                                                    P246,717.52

“3) Jimmy Calinao

                        Backwages                                           P234,000.00

                        (P6,500.00 x 36 = P234,000.00)

                        Separation Pay – 55,250.00

                        13^th Month Pay – P6,500.00                                                                                                                                                    P295,700.00

“4) Leopoldo Sebullen

                        Backwages                                           P154,440.00

                        (P4, 290.00 x 36 = P154,440.00)

                        Separation Pay – P44,073.00

                        13^th Month Pay – 2,473.12

                        Salary Differential – 4,472.00

                                                                                    P208,455.12

“5) Ismael Nubla

                        Backwages                                           P199,640.12

                        Separation Pay – P58,149.00

                        13^th Month Pay – 2,473.12

                        Salary Differential – P5,538.00

                                                                                    P265, 28.12

                                                                                    ___________

                                                            TOTAL           P 1, 341, 650.76

                        All other claims are dismissed for lack of merit.”^[17][17]

            The Labor Arbiter found that there was no evidence showing that the private respondents received the 41 bañeras of “pampano” as alleged by De Borja in his reply-affidavit; and that no proof was presented that the 8 bañeras of pampano [and tangigue] were missing at the place of destination.^[18][18]

          The Labor Arbiter disregarded the Resolution of Assistant City Prosecutor Rosauro Silverio on the theft case.  He reasoned out that the Labor Office is governed by different rules for the determination of the validity of the dismissal of employees.^[19][19]

          The Labor Arbiter also ruled that the contractual provision that the employment terminates upon the end of each trip does not make the respondents’ dismissal legal.   He pointed out that respondents and Lynvil did not negotiate on equal terms because of the moral dominance of the employer.^[20][20]

          The Labor Arbiter found that the procedural due process was not complied with and that the mere notice given to the private respondents fell short of the requirement of “ample opportunity” to present the employees’ side.^[21][21]

          On appeal before the National Labor Relations Commission, petitioners asserted that private respondents were only contractual employees; that they were not illegally dismissed but were accorded procedural due process and that De Borja did not commit bad faith in dismissing the employees so as to warrant his joint liability with Lynvil.^[22][22]

On 31 March 2004, the NLRC reversed and set aside the Decision of the Labor Arbiter.  The dispositive portion reads:

WHEREFORE, judgment is hereby rendered REVERSING AND SETTING ASIDE the Decision of the Labor Arbiter a quo and a new one entered DISMISSING the present complaints for utter lack of merit;

However as above discussed, an administrative fine of PhP5,000.00 for each complainant, Andres Ariola, Jessie Alcovendas, Jimmy Canilao, Leopoldo Sebullen and Ismael Nobla or a total of PhP25,000.00 is hereby awarded.^[23][23]

          The private respondents except Elorde Bañez filed a Petition for Certiorari^[24][24] before the Court of Appeals alleging grave abuse of discretion on the part of NLRC.

The Court of Appeals found merit in the petition and reinstated the Decision of the Labor Arbiter except as to the award of attorney’s fees.  The appellate court held that the allegation of theft did not warrant the dismissal of the employees since there was no evidence to prove the actual quantities of the missing kinds of fish loaded to Analyn VIII.^[25][25]  It also reversed the finding of the NLRC that the dismissed employees were merely contractual employees and added that they were regular ones performing activities which are usually necessary or desirable in the business and trade of Lynvil.  Finally, it ruled that the two-notice rule provided by law and jurisprudence is mandatory and non-compliance therewith rendered the dismissal of the employees illegal.

The following are the assignment of errors presented before this Court by Lynvil:

I

THE HONORABLE COURT OF APPEALS ERRED IN FAILING TO CONSIDER THE ESTABLISHED DOCTRINE LAID DOWN IN NASIPIT LUMBER COMPANY V. NLRC HOLDING THAT THE FILING OF A CRIMINAL CASE BEFORE THE PROSECUTOR’S OFFICE CONSTITUTES SUFFICIENT BASIS FOR A VALID TERMINATION OF EMPLOYMENT ON THE GROUNDS OF SERIOUS MISCONDUCT AND/OR LOSS OF TRUST AND CONFIDENCE.

II

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE TERMINATION OF RESPONDENTS’ EMPLOYMENT WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.

III

THE HONORABLE COURT OF APPEALS ERRED IN FAILING TO CONSIDER THAT THE RESPONDENTS’ EMPLOYMENT, IN ANY EVENT, WERE CONTRACTUAL IN NATURE BEING ON A PER VOYAGE BASIS. THUS, THEIR RESPECTIVE EMPLOYMENT TERMINATED AFTER THE END OF EACH VOYAGE

IV

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE RESPONDENTS WERE NOT ACCORDED PROCEDURAL DUE PROCESS.

V

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE RESPONDENTS ARE ENTITLED TO THE PAYMENT OF THEIR MONEY CLAIMS.

VI

THE HONORABLE COURT OF APPEALS ERRED IN FAILING TO CONSIDER THAT PETITIONER ROSENDO S. DE BORJA IS NOT JOINTLY AND SEVERALLY LIABLE FOR THE JUDGMENT WHEN THERE WAS NO FINDING OF BAD FAITH.^[26][26]

The Court’s Ruling

The Supreme Court is not a trier of facts. Under Rule 45,^[27][27] parties may raise only questions of law. We are not duty-bound to analyze again and weigh the evidence introduced in and considered by the tribunals below. Generally when supported by substantial evidence, the findings of fact of the CA are conclusive and binding on the parties and are not reviewable by this Court, unless the case falls under any of the following recognized exceptions:

(1) When the conclusion is a finding grounded entirely on speculation, surmises and conjectures;

(2) When the inference made is manifestly mistaken, absurd or impossible;

(3) Where there is a grave abuse of discretion;

(4) When the judgment is based on a misapprehension of facts;

(5) When the findings of fact are conflicting;

(6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee;

(7) When the findings are contrary to those of the trial court;

(8) When the findings of fact are conclusions without citation of specific evidence on which they are based;

(9) When the facts set forth in the petition as well as in the petitioners’ main and reply briefs are not disputed by the respondents; and

(10) When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record. (Emphasis supplied)^[28][28]

The contrariety of the findings of the Labor Arbiter and the NLRC prevents reliance on the principle of special administrative expertise and provides the reason for judicial review, at first instance by the appellate court, and on final study through the present petition.

In the first assignment of error, Lynvil contends that the filing of a criminal case before the Office of the Prosecutor is sufficient basis for a valid termination of employment based on serious misconduct and/or loss of trust and confidence relying on Nasipit Lumber Company v. NLRC.^[29][29] 

Nasipit is about a security guard who was charged with qualified theft which charge was dismissed by the Office of the Prosecutor.  However, despite the dismissal of the complaint, he was still terminated from his employment on the ground of loss of confidence.  We ruled that proof beyond reasonable doubt of an employee’s misconduct is not required when loss of confidence is the ground for dismissal.  It is sufficient if the employer has “some basis” to lose confidence or that the employer has reasonable ground to believe or to entertain the moral conviction that the employee concerned is responsible for the misconduct and that the nature of his participation therein rendered him absolutely unworthy of the trust and confidence demanded by his position.^[30][30] It added that the dropping of the qualified theft charges against the respondent is not binding upon a labor tribunal.^[31][31] 

In Nicolas v. National Labor Relations Commission,^[32][32] we held that a criminal conviction is not necessary to find just cause for employment termination. Otherwise stated, an employee’s acquittal in a criminal case, especially one that is grounded on the existence of reasonable doubt, will not preclude a determination in a labor case that he is guilty of acts inimical to the employer’s interests.^[33][33]  In the reverse, the finding of probable cause is not followed by automatic adoption of such finding by the labor tribunals.

In other words, whichever way the public prosecutor disposes of a complaint, the finding does not bind the labor tribunal.

Thus, Lynvil cannot argue that since the Office of the Prosecutor found probable cause for theft the Labor Arbiter must follow the finding as a valid reason for the termination of respondents’ employment.  The proof required for purposes that differ from one and the other are likewise different.

Nonetheless, even without reliance on the prosecutor’s finding, we find that there was valid cause for respondents’ dismissal.

In illegal dismissal cases, the employer bears the burden of proving that the termination was for a valid or authorized cause.^[34][34] 

Just cause is required for a valid dismissal.  The Labor Code^[35][35] provides that an employer may terminate an employment based on fraud or willful breach of the trust reposed on the employee.  Such breach is considered willful if it is done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It must also be based on substantial evidence and not on the employer’s whims or caprices or suspicions otherwise, the employee would eternally remain at the mercy of the employer. Loss of confidence must not be indiscriminately used as a shield by the employer against a claim that the dismissal of an employee was arbitrary. And, in order to constitute a just cause for dismissal, the act complained of must be work-related and shows that the employee concerned is unfit to continue working for the employer. In addition, loss of confidence as a just cause for termination of employment is premised on the fact that the employee concerned holds a position of responsibility, trust and confidence or that the employee concerned is entrusted with confidence with respect to delicate matters, such as the handling or care and protection of the property and assets of the employer. The betrayal of this trust is the essence of the offense for which an employee is penalized.^[36][36]

Breach of trust is present in this case. 

We agree with the ruling of the Labor Arbiter and Court of Appeals that the quantity of tubs expected to be received was the same as that which was loaded.  However, what is material is the kind of fish loaded and then unloaded.  Sameness is likewise needed.

We cannot close our eyes to the positive and clear narration of facts of the three witnesses to the commission of qualified theft.  Jonathan Distajo, a crew member of the Analyn VIII, stated in his letter addressed to De Borja^[37][37] dated 8 August 1998, that while the vessel was traversing San Nicolas, Cavite, he saw a small boat approach them.  When the boat was next to their vessel, Alcovendas went inside the stockroom while Sebullen pushed an estimated four tubs of fish away from it.  Ariola, on the other hand, served as the lookout and negotiator of the transaction.  Finally, Bañez and Calinao helped in putting the tubs in the small boat.  He further added that he received P800.00 as his share for the transaction.  Romanito Clarido, who was also on board the vessel, corroborated the narration of Distajo on all accounts in his 25 August 1998 affidavit.^[38][38]  He added that Alcovendas told him to keep silent about what happened on that day.  Sealing tight the credibility of the narration of theft is the affidavit^[39][39] executed by Elorde Bañez dated 3 May 1999.  Bañez was one of the dismissed employees who actively participated in the taking of the tubs.  He clarified in the affidavit that the four tubs taken out of the stockroom in fact contained fish taken from the eight tubs.  He further stated that Ariola told everyone in the vessel not to say anything and instead file a labor case against the management.  Clearly, we cannot fault Lynvil and De Borja when it dismissed the employees.

          The second to the fifth assignment of errors interconnect.

The nature of employment is defined in the Labor Code, thus:

Art. 280. Regular and casual employment. The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.

An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.

Lynvil contends that it cannot be guilty of illegal dismissal because the private respondents were employed under a fixed-term contract which expired at the end of the voyage.  The pertinent provisions of the contract are:

xxxx

1.       NA ako ay sumasang-ayon na maglingkod at gumawa ng mga gawain sang-ayon sa patakarang “por viaje” na magmumula sa pagalis sa Navotas papunta sa pangisdaan at pagbabalik sa pondohan ng lantsa sa Navotas, Metro Manila;

xxxx

1.       NA ako ay nakipagkasundo na babayaran ang aking paglilingkod sa paraang “por viaje” sa halagang P__________ isang biyahe ng kabuuang araw xxxx.^[40][40]

Lynvil insists on the applicability of the case of Brent School,^[41][41] to wit:

Accordingly, and since the entire purpose behind the development of legislation culminating in the present Article 280 of the Labor Code clearly appears to have been, as already observed, to prevent circumvention of the employee’s right to be secure in his tenure, the clause in said article indiscriminately and completely ruling out all written or oral agreements conflicting with the concept of regular employment as defined therein should be construed to refer to the substantive evil that the Code itself has singled out: agreements entered into precisely to circumvent security of tenure. It should have no application to instances where a fixed period of employment was agreed upon knowingly and voluntarily by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent, or where it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former over the latter. Unless thus limited in its purview, the law would be made to apply to purposes other than those explicitly stated by its framers; it thus becomes pointless and arbitrary, unjust in its effects and apt to lead to absurd and unintended consequences.

Contrarily, the private respondents contend that they became regular employees by reason of their continuous hiring and performance of tasks necessary and desirable in the usual trade and business of Lynvil.

Jurisprudence,^[42][42] laid two conditions for the validity of a fixed-contract agreement between the employer and employee:

First, the fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force, duress, or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; or

Second, it satisfactorily appears that the employer and the employee dealt with each other on more or less equal terms with no moral dominance exercised by the former or the latter.^[43][43]

          Textually, the provision that: “NA ako ay sumasang-ayon na maglingkod at gumawa ng mga gawain sang-ayon sa patakarang “por viaje” na magmumula sa pagalis sa Navotas papunta sa pangisdaan at pagbabalik sa pondohan ng lantsa sa Navotas, Metro Manila” is for a fixed period of employment.  In the context, however, of the facts that:  (1) the respondents were doing tasks necessarily to Lynvil’s fishing business with positions ranging from captain of the vessel to bodegero; (2) after the end of a trip, they will again be hired for another trip with new contracts; and (3) this arrangement continued for more than ten years, the clear intention is to go around the security of tenure of the respondents as regular employees.  And respondents are so by the express provisions of the second paragraph of Article 280, thus:

xxx Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.

          The same set of circumstances indicate clearly enough that it was the need for a continued source of income that forced the employees’ acceptance of the “por viaje” provision.

Having found that respondents are regular employees who may be, however, dismissed for cause as we have so found in this case, there is a need to look into the procedural requirement of due process in Section 2, Rule XXIII, Book V of the Rules Implementing the Labor Code.  It is required that the employer furnish the employee with two written notices:  (1) a written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side; and (2) a written notice of termination served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.

From the records, there was only one written notice which required respondents to explain within five (5) days why they should not be dismissed from the service.   Alcovendas was the only one who signed the receipt of the notice.  The others, as claimed by Lynvil, refused to sign.  The other employees argue that no notice was given to them.   Despite the inconsistencies, what is clear is that no final written notice or notices of termination were sent to the employees.

The twin requirements of notice and hearing constitute the elements of [due] process in cases of employee’s dismissal.  The requirement of notice is intended to inform the employee concerned of the employer’s intent to dismiss and the reason for the proposed dismissal. Upon the other hand, the requirement of hearing affords the employee an opportunity to answer his employer’s charges against him and accordingly, to defend himself therefrom before dismissal is effected.^[44][44]  Obviously, the second written notice, as indispensable as the first, is intended to ensure the observance of due process.

          Applying the rule to the facts at hand, we grant a monetary award of P50,000.00 as nominal damages, this, pursuant to the fresh ruling of this Court in Culili v. Eastern Communication Philippines, Inc.^[45][45]   Due to the failure of Lynvil to follow the procedural requirement of two-notice rule, nominal damages are due to respondents despite their dismissal for just cause. 

Given the fact that their dismissal was for just cause, we cannot grant backwages and separation pay to respondents.  However, following the findings of the Labor Arbiter who with the expertise presided over the proceedings below, which findings were affirmed by the Court of Appeals, we grant the 13^th month pay and salary differential of the dismissed employees.

Whether De Borja is jointly and severally liable with Lynvil 

As to the last issue, this Court has ruled that in labor cases, the corporate directors and officers are solidarily liable with the corporation for the termination of employment of employees done with malice or in bad faith.^[46][46] Indeed, moral damages are recoverable when the dismissal of an employee is attended by bad faith or fraud or constitutes an act oppressive to labor, or is done in a manner contrary to good morals, good customs or public policy. 

It has also been discussed in MAM Realty Development Corporation v. NLRC^[47][47] that:

x x x A corporation being a juridical entity, may act only through its directors, officers and employees. Obligations incurred by them, acting as such corporate agents, are not theirs but the direct accountabilities of the corporation they represent. True, solidary liabilities may at times be incurred but only when exceptional circumstances warrant such as, generally, in the following cases:

1. When directors and trustees or, in appropriate cases, the officers of a corporation:

xxx

(b) act in bad faith or with gross negligence in directing the corporate affairs;

x x x ^[48][48]

          The term “bad faith” contemplates a “state of mind affirmatively operating with furtive design or with some motive of self-interest or will or for ulterior purpose.”^[49][49]

          We agree with the ruling of both the NLRC and the Court of Appeals when they pronounced that there was no evidence on record that indicates commission of bad faith on the part of De Borja.    He is the general manager of Lynvil, the one tasked with the supervision by the employees and the operation of the business.  However, there is no proof that he imposed on the respondents the “por viaje” provision for purpose of effecting their summary dismissal.

WHEREFORE, the petition is partially GRANTED.  The 10 September 2007 Decision of the Court of Appeals in CA-G.R. SP No. 95094 reversing the Resolution dated 31 March 2004 of the National Labor Relations Commission is hereby MODIFIED.  The Court hereby rules that the employees were dismissed for just cause by Lynvil Fishing Enterprises, Inc. and Rosendo S. De Borja, hence, the reversal of the award for backwages and separation pay.  However, we affirm the award for 13^th month pay, salary differential and grant an additional P50,000.00 in favor of the employees representing nominal damages for petitioners’ non-compliance with statutory due process. No cost.

SO ORDERED.

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

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

CASE 2012-0007: REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE CIVIL SERVICE COMMISSION VS. MINERVA M.P. PACHEO (G.R. NO.  178021, 25 JANUARY 2012, MENDOZA, J.)  SUBJECT/S: WHEN TRANSFER OR REASSIGNMENT CONSTITUTES CONSTRUCTIVE DISMISSAL; DIFFERENCE BETWEEN DETAIL AND REASSIGNMENT. (BRIEF TITLE: REPUBLIC VS. PACHEO)

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

DISPOSITIVE:

 WHEREFORE, the petition is DENIED. The assailed February 22, 2007 Decision and May 15, 2007 Resolution of the Court of Appeals, in CA-G.R. SP No. 93781, are hereby AFFIRMED with MODIFICATION that respondent Minerva M.P. Pacheo is hereby ordered reinstated without loss of seniority rights but is only entitled to the payment of back salaries corresponding to five (5) years from the date of her invalid reassignment on May 7, 2002. 

        SO ORDERED.

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

Republic of thePhilippines

Supreme Court

Manila

EN BANC

x ——————————————————————————————————-x

D E C I S I O N

MENDOZA, J.:

Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court filed by petitioner Republic of the Philippines, represented by the Office of the Solicitor General (OSG), which assails the February 22, 2007 Decision^[1][1] and the May 15, 2007 Resolution^[2][2] of the Court of Appeals (CA) in CA-G.R. SP No. 93781. The CA reversed the November 21, 2005 Resolution of the Civil Service Commission (CSC) declaring the re-assignment of respondent Minerva M.P. Pacheos (Pacheo) not valid and ordering her reinstatement to her original station but without backwages under the principle of “no work, no pay.”

The Facts

Pacheo was a Revenue Attorney IV, Assistant Chief of the Legal Division of the Bureau of Internal Revenue (BIR) in Revenue Region No. 7 (RR7),Quezon City.

        On May 7, 2002, the BIR issued Revenue Travel Assignment Order (RTAO) No. 25-2002,^[3][3] ordering the reassignment of Pacheo as Assistant Chief, Legal Division from RR7 in Quezon City to RR4 in San Fernando, Pampanga. The BIR cited exigencies of the revenue service as basis for the issuance of the said RTAO.

        Pacheo questioned the reassignment through her Letter dated May 9, 2002^[4][4] addressed to Rene G. Banez, then Commissioner of Internal Revenue (CIR). She complained that the transfer would mean economic dislocation since she would have to spend ₱200.00 on daily travel expenses or approximately ₱4,000.00 a month. It would also mean physical burden on her part as she would be compelled to wake up early in the morning for her daily travel fromQuezon City toSan Fernando, Pampanga, and to return home late at night fromSan Fernando, Pampanga toQuezon City. She was of the view that that her reassignment was merely intended to harass and force her out of the BIR in the guise of exigencies of the revenue service. In sum, she considered her transfer fromQuezon City to Pampanga as amounting to a constructive dismissal.

        Due to the then inaction of the BIR, Pacheo filed a complaint^[5][5] dated May 30, 2002, before the CSC- National Capital Region (CSC-NCR), praying for the nullification of RTAO No. 25-2002. In its July 22, 2002 Order,^[6][6] the CSC-NCR treated Pacheo’s Complaint as an appeal and dismissed the same, without prejudice, for failure to comply with Sections 73 and 74 of Rule V(b) of the Uniform Rules on Administrative Cases in the Civil Service.^[7][7] 

           In its Letter-reply^[8][8] dated September 13, 2002, the BIR, through its Deputy Commissioner for Legal and Inspection Group, Edmundo P. Guevara (Guevara), denied Pacheo’s protest for lack of merit. It contended that her reassignment could not be considered constructive dismissal as she maintained her position as Revenue Attorney IV and was designated as Assistant Chief of Legal Division. It emphasized that her appointment to the position of Revenue Attorney IV was without a specific station. Consequently, she could properly be reassigned from one organizational unit to another within the BIR. Lastly, she could not validly claim a vested right to any specific station, or a violation of her right to security of tenure.

Not in conformity with the ruling of the BIR, Pacheo appealed her case before the CSC.

On November 21, 2005, the CSC issued Resolution No. 051697^[9][9] granting Pacheo’s appeal, the dispositive portion of which reads:

WHEREFORE, the instant appeal of Minerva M.P. Pacheo is hereby GRANTED. The Bureau of Internal Revenue Revenue Travel Assignment Order No. 25-2002 dated May 7, 2002, on the reassignment of Pacheo to the Legal Division Revenue Region No. 4 San Fernanado, Pampanga, is hereby declared NOT VALID. ACCORDINGLY, Pacheo should now be recalled to her original station. This Commission, however rules and so holds that the withholding by the BIR of Pacheo’s salary for the period she did not report to work is justified.

The CSCRO No. III is directed to monitor the implementation of this Resolution.

In granting Pacheo’s appeal, the CSC explained:

On the second issue, this Commission finds merit in appellant’s contention that her reassignment in not valid.

Of pertinent application thereto is Rule III, Section 6 of CSC Memorandum Circular No. 40, series of 1998, dated December 14, 1998, which provides:

Section 6. Other Personnel Movements. The following personnel movements which will not require issuance of an appointment shall nevertheless require an office order by duly authorized official.

a.       Reassignment – Movement of an employee from one organizational unit to another in the same department or agency which does not involve reduction in rank, status or salary. If reassignment is done without consent of the employee being reassigned it shall be allowed for a maximum period of one year. Reassignment is presumed to be regular and made in the interest of public service unless proven otherwise or it constitutes constructive dismissal.

No assignment shall be undertaken if done indiscriminately or whimsically because the law is not intended as a convenient shield for the appointing/ disciplining authority to harass or oppress a subordinate on the pretext of advancing and promoting public interest.

Reassignment of small salaried employee is not permissible if it causes significant financial dislocation.’

Although reassignment is a management prerogative, the same must be done in the exigency of the service without diminution in rank, status and salary on the part of the officer or employee being temporarily reassigned. Reassignment of ‘small salaried’ employees, however is not allowed if it will cause significant financial dislocation to the employee reassigned. Otherwise the Commission will have to intervene.

The primary purpose of emphasizing ‘small salaried employees’ in the foregoing rule is to protect the ‘rank and file’ employees from possible abuse by the management in the guise of transfer/reassignment. The Supreme Court in Alzate v. Mabutas, (51 O.G. 2452) ruled:

‘ x x x [T]he protection against invalid transfer is especially needed by lower ranking employees. The Court emphasized this need when it ruled that officials in the unclassified service, presidential appointees, men in the government set up occupy positions in the higher echelon should be entitled to security of tenure, unquestionable a lesser sol[ci]itude cannot be meant for the little men, that great mass of Common underprivileged employees-thousand there are of them in the lower bracket, who generally are without connections and who pin their hopes of advancement on the merit system instituted by our civil service law.’

In other words, in order to be embraced in the term ‘small-salaried employees’, the latter must belong to the ‘rank and file’; and, his/her salary would be significantly reduced by virtue of the transfer/reassignment. ‘Rank and file’ was categorized as those occupying the position of Division Chief and below, pursuant to CSC Resolution No. 1, series of 1991, dated January 28, 1991.

The facts established on record show that Pacheo belongs to the rank and file receiving an average monthly salary of Twenty Thousand Pesos (₱20,000.00) under the salary standardization law and a monthly take home pay of Fourteen Thousand Pesos (₱14,000.00). She has to spend around Four Thousand Pesos (₱4,000.00) a month for her transportation expenses as a consequence of her reassignment, roughly twenty eight percent (28%) of her monthly take home pay. Clearly, Pacheo’s salary shall be significantly reduced as a result of her reassignment.

In ANORE, Ma. Theresa F., this Commission ruled:

‘Anore, a lowly salaried employee, was reassigned to an isolated island 15 kilometers away from her original place of assignment. She has to travel by boat with only one trip a day to report to her new place of assignment in an office without any facilities, except its bare structure. Worst, the municipality did not provide her with transportation allowance. She was forced to be separated from her family, look for a boarding house where she can stay while in the island and spend for her board and lodging. The circumstances surrounding Anore’s reassignment is exactly the kind of reassignment that is being frowned upon by law.’

This Commission, however, rules and so holds that the withholding by the BIR of her salaries is justified as she is not entitled thereto since she is deemed not to have performed any actual work in the government on the principle of no work no pay.

Accordingly, Pacheo should now be reinstated to her original station without any right to claim back salary as she did not report to work either at her new place of assignment or at her original station.^[10][10] [Emphases in the original]

Still not satisfied, Pacheo moved for reconsideration. She argued that the CSC erred in not finding that she was constructively dismissed and, therefore, entitled to back salary.

On March 7, 2006, the CSC issued Resolution No. 060397^[11][11] denying Pacheo’s motion for reconsideration.

Undaunted, Pacheo sought recourse before the CA via a petition for review.

In its February 22, 2007 Decision, the CA reversed the CSC Resolution and ruled in favor of Pacheo, the fallo of which states:

WHEREFORE, the petition is GRANTED. Resolution nos. 051697 and 060397 dated November 21, 2005 and March 7, 2006, respectively, of the Civil Service Commission are REVERSED and SET ASIDE. A new judgment is hereby entered finding petitioner to have been constructively dismissed and ordering her immediate reinstatement with full backwages and benefits.

SO ORDERED.^[12][12]

In setting aside CSC Resolution Nos. 051697 and 060397, the CA held that:

        While this Court agrees that petitioner’s reassignment was not valid considering that a diminution in salary is enough to invalidate such reassignment, We cannot agree that the latter has not been constructively dismissed as a result thereof.

          It is well to remember that constructive dismissal does not always involve forthright dismissal or diminution in rank, compensation, benefits and privileges.  For an act of clear discrimination, insensibility, or disdain by an employer may become so unbearable on the part of the employee that it could foreclose any choice by him except to forgo his continued employment.

          The management prerogative to transfer personnel must be exercised without grave abuse of discretion and putting to mind the basic elements of justice and fair play.  The employer must be able to show that the transfer is not unreasonable, inconvenient, or prejudicial to the employee.

          In this case, petitioner’s reassignment will result in the reduction of her salary, not to mention the physical burden that she would suffer in waking up early in the morning to travel daily fromQuezon CitytoSan Fernando, Pampanga and in coming home late at night.

          Clearly, the insensibility of the employer is deducible from the foregoing circumstances and petitioner may have no other choice but to forego her continued employment.

          Moreover, it would be inconsistent to hold that the reassignment was not valid due to the significant reduction in petitioner’s salary and then rule that there is no constructive dismissal just because said reduction in salary will not render petitioner penniless if she will report to her new place of assignment.  It must be noted that there is constructive dismissal when the reassignment of an employee involves a diminution in pay.

Having determined that petitioner has been constructively dismissed as a result of her reassignment, We shall resolve whether or not she is entitled to backwages.

          In denying petitioner’s claim for backwages, the CSC held:

          This Commission, however, rules and so holds that the withholding by the BIR of her salaries is justified as she is not entitled thereto since she is deemed not to have performed any actual work in the government on the principle of no work no pay.

          Accordingly, Pacheo should now be reinstated to her original station without any right to claim back salary as she did not report for work either at her new place of assignment or at her original station.”

          Pacheo, while belonging to the rank-and-file employees, is holding a responsible position as an Assistant Division Chief, who could not just abandon her duties merely because she protested her re-assignment and filed an appeal afterwards.

We do not agree.

If there is no work performed by the employee there can be no wage or pay, unless of course the laborer was able, willing and ready to work but was illegally locked out, dismissed or suspended.  The “No work, no pay” principle contemplates a “no work” situation where the employees voluntarily absent themselves.

In this case, petitioner was forced to forego her continued employment and did not just abandon her duties.  In fact, she lost no time in protesting her reassignment as a form of constructive dismissal.  It is settled that the filing of a complaint for illegal dismissal is inconsistent with a charge of abandonment.  The filing of the complaint is proof enough of his desire to return to work, thus negating any suggestion of abandonment.

Neither do we agree with the OSG when it opined that:

          No one in the Civil Service should be allowed to decide on whether she is going to accept or not any work dictated upon by the exigency of the service.  One should consider that public office is a public trust and that the act of respondent CIR enjoys the presumption of regularity.  To uphold the failure of respondent to heed the RTAO would result in chaos.  Every employee would put his or her vested interest or personal opinion over and above the smooth functioning of the bureaucracy.

Security of tenure is a right of paramount value as recognized and guaranteed under Sec. 3, Art. XIII of the 1987 Constitution.

          The State shall afford full protection to labor, xxx and promote full employment and equality of employment opportunities for all.  It shall guarantee the rights of all workers to xxx security of tenure xxx 

          Such constitutional right should not be denied on mere speculation of any similar unclear and nebulous basis. 

In Garcia, et al. v. Lejano, et al., the Supreme Court rejected the OSG’s opinion that when the transfer is motivated solely by the interest of the service of such act cannot be considered violative of the Constitution, thus:

“We do not agree to this view.  While temporary transfers or assignments may be made of the personnel of a bureau or department without first obtaining the consent of the employee concerned within the scope of Section 79 (D) of the Administrative Code which party provides that ‘The Department Head also may, from time to time, in the interest of the service, change the distribution among the several Bureaus and offices of his Department of the employees or subordinates authorized by law,’ such cannot be undertaken when the transfer of the employee is with a view to his removal.  Such cannot be done without the consent of the employee.  And if the transfer is resorted to as a scheme to lure the employee away from his permanent position, such attitude is improper as it would in effect result in a circumvention of the prohibition which safeguards the tenure of office of those who are in the civil service.  It is not without reason that this Court made the following observation: 

To permit circumvention of the constitutional prohibition in question by allowing removal from office without lawful cause, in the form or guise of transfers from one office to another, or from one province to another, without the consent of the transferee, would blast the hopes of these young civil service officials and career men and women, destroy their security and tenure of office and make for a subservient, discontented and inefficient civil service force that sways with every political wind that blows and plays up to whatever political party is in the saddle.  That would be far from what the framers of our Constitution contemplated and desired.  Neither would that be our concept of a free and efficient Government force, possessed of self-respect and reasonable ambition.”

Clearly, the principle of “no work, no pay” does not apply in this case.  As held in Neeland v. Villanueva, Jr:

“We also cannot deny back salaries and other economic benefits on the ground that respondent Clerk of Court did not work.  For the principle of “no work, no pay” does not apply when the employee himself was forced out of job. Xxx Indeed, it is not always true that back salaries are paid only when work is done. Xxx For another, the poor employee could offer no work since he was forced out of work.  Thus, to always require complete exoneration or performance of work would ultimately leave the dismissal uncompensated no matter how grossly disproportionate the penalty was.  Clearly, it does not serve justice to simply restore the dismissed employee to his position and deny him his claim for back salaries and other economic benefits on these grounds.  We would otherwise be serving justice in halves.”

An illegally dismissed government employee who is later ordered reinstated is entitled to back wages and other monetary benefits from the time of his illegal dismissal up to his reinstatement.  This is only fair and sensible because an employee who is reinstated after having been illegally dismissed is considered as not having left his office and should be given a comparable compensation at the time of his reinstatement.

When a government official or employee in the classified civil service had been illegally dismissed, and his reinstatement had later been ordered, for all legal purposes he is considered as not having left his office, so that he is entitled to all the rights and privileges that accrue to him by virtue of the office that he held.^[13][13]

          The CSC moved for reconsideration but its motion was denied by the CA in its May 15, 2007 Resolution.

          Hence, this petition.

THE ISSUES

WHETHER OR NOT THE ASSAILED DECISION IS LEGALLY CORRECT IN DECLARING THAT RESPONDENT WAS CONSTRUCTIVELY DISMISED AND ENTITLED TO BACK WAGES, NOTWITHSTANDING RESPONDENT’S REFUSAL TO COMPLY WITH BIR RTAO No. 25-2002 WHICH IS IMMEDIATELY EXECUTORY PURSUANT TO SECTION 24 (F) OF P.D. 807.

WHETHER OR NOT RESPONDENT SUFFERED A DIMINUTION IN HER SALARY IN RELATION TO SECTION 6, RULE III OF CSC MEMORANDUM CIRCULAR No. 40, SERIES OF 1998, DATED DECEMBER 14, 1998, AS A RESULT OF THE ISSUANCE [OF] BIR RTAO No. 25-2002 ORDERING HER REASSIGNMENT FROM BIR RR No. 7 IN QUEZON CITY TO BIR RR No. 4 IN SAN FERNANDO, PAMPANGA.^[14][14]

        In her Memorandum,^[15][15] Pacheo asserts that RTAO No. 25-2002, on the pretense of the exigencies of the revenue service, was solely meant to harass her and force her to resign. As a result of her invalid reassignment, she was constructively dismissed and, therefore, entitled to her back salaries and monetary benefits from the time of her illegal dismissal up to her reinstatement.

        In its own Memorandum,^[16][16] the CSC, through the OSG, argues that constructive dismissal is not applicable in this case because it was Pacheo herself who adamantly refused to report for work either in her original station or new place of assignment in clear violation of Section 24 (f) of Presidential Decree (PD) No. 807.^[17][17] Citing jurisprudence,^[18][18] the CSC avers that the RTAO is immediately executory, unless otherwise ordered by the CSC. Therefore, Pacheo should have first reported to her new place of assignment and then appealed her case to the CSC if she indeed believed that there was no justification for her reassignment. Since Pacheo did not report for work at all, she is not entitled to backwages following the principle of “no work, no pay.”

THE COURT’S RULING

        The petition fails to persuade.

It appears undisputed that the reassignment of Pacheo was not valid. In its memorandum, the OSG initially argues for the validity of RTAO No. 25-2002 authorizing Pacheo’s reassignment fromQuezon CitytoSan Fernando, Pampanga. Later, however, it specifically prays for the reinstatement of CSC Resolution Nos. 051697 and 060397, which categorically declared RTAO No. 25-2002 as not valid. In seeking such relief, the OSG has effectively accepted the finding of the CSC, as affirmed by the CA, that Pacheo’s reassignment was indeed invalid. Since the issue of Pacheo’s reassignment is already settled, the Court finds it futile to pass upon the same at this point.

The question that remains to be resolved is whether or not Pacheo’s assignment constitutes constructive dismissal and, thus, entitling her to reinstatement and backwages. Was Pacheo constructively dismissed by reason of her reassignment?

The Court agrees with the CA on this point.

While a temporary transfer or assignment of personnel is permissible even without the employee’s prior consent, it cannot be done when the transfer is a preliminary step toward his removal, or a scheme to lure him away from his permanent position, or when it is designed to indirectly terminate his service, or force his resignation. Such a transfer would in effect circumvent the provision which safeguards the tenure of office of those who are in the Civil Service.^[19][19]

Significantly, Section 6, Rule III of CSC Memorandum Circular No. 40, series of 1998, defines constructive dismissal as a situation when an employee quits his work because of the agency head’s unreasonable, humiliating, or demeaning actuations which render continued work impossible. Hence, the employee is deemed to have been illegally dismissed. This may occur although there is no diminution or reduction of salary of the employee. It may be a transfer from one position of dignity to a more servile or menial job.

        The CSC, through the OSG, contends that the deliberate refusal of Pacheo to report for work either in her original station in Quezon City or her new place of assignment in San Fernando, Pampanga negates her claim of constructive dismissal in the present case being in violation of Section 24 (f) of P.D. 807 [now Executive Order (EO) 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (6)].^[20][20] It further argues that the subject RTAO was immediately executory, unless otherwise ordered by the CSC. It was, therefore, incumbent on Pacheo to have reported to her new place of assignment and then appealed her case to the CSC if she indeed believed that there was no justification for her reassignment.

Anent the first argument of CSC, the Court cannot sustain the proposition. It was legally impossible for Pacheo to report to her original place of assignment in Quezon Cityconsidering that the subject RTAO No. 25-2002 also reassigned Amado Rey B. Pagarigan (Pagarigan) as Assistant Chief, Legal Division, from RR4,San Fernando, Pampanga to RR7,Quezon City, the very same position Pacheo formerly held. The reassignment of Pagarigan to the same position palpably created an impediment to Pacheo’s return to her original station.

The Court finds Itself unable to agree to CSC’s argument that the subject RTAO was immediately executory. The Court deems it necessary to distinguish between a detail and reassignment, as they are governed by different rules.

A detail is defined and governed by Executive Order 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (6), thus:

(6) Detail. A detail is the movement of an employee from one agency to another without the issuance of an appointment and shall be allowed, only for a limited period in the case of employees occupying professional, technical and scientific positions. If the employee believes that there is no justification for the detail, he may appeal his case to the Commission. Pending appeal, the decision to detail the employee shall be executory unless otherwise ordered by the Commission. [Underscoring supplied]

On the other hand, a reassignment is defined and governed by E.O. 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (7), thus:

(7) Reassignment.—An employee may be reassigned from one organizational unit to another in the same agency; Provided, That such reassignment shall not involve a reduction in rank, status or salaries. [Underscoring supplied]

The principal distinctions between a detail and reassignment lie in the place where the employee is to be moved and in its effectivity pending appeal with the CSC. Based on the definition, a detail requires a movement from one agency to another while a reassignment requires a movement within the same agency. Moreover, pending appeal with the CSC, an order to detail is immediately executory, whereas a reassignment order does not become immediately effective.

        In the case at bench, the lateral movement of Pacheo as Assistant Chief, Legal Division from Quezon Cityto San Fernando, Pampanga within the same agency is undeniably a reassignment. The OSG posits that she should have first reported to her new place of assignment and then subsequently question her reassignment. It is clear, however, from E.O. 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (7) that there is no such duty to first report to the new place of assignment prior to questioning an alleged invalid reassignment imposed upon an employee. Pacheo was well within her right not to report immediately to RR4,San Fernando, Pampanga, and to question her reassignment.

Reassignments involving a reduction in rank, status or salary violate an employee’s security of tenure, which is assured by the Constitution, the Administrative Code of 1987, and the Omnibus Civil Service Rules and Regulations. Security of tenure covers not only employees removed without cause, but also cases of unconsented transfers and reassignments, which are tantamount to illegal/constructive removal.^[21][21]

        The Court is not unaware that the BIR is authorized to assign or reassign internal revenue officers and employees as the exigencies of service may require. This authority of the BIR, however, should be prudently exercised in accordance with existing civil service rules.

Having ruled that Pacheo was constructively dismissed, is she entitled to reinstatement and back wages? The Court agrees with the CA that she is entitled to reinstatement, but finds Itself unable to sustain the ruling that she is entitled to full back wages and benefits. It is a settled jurisprudence^[22][22] that an illegally dismissed civil service employee is entitled to back salaries but limited only to a maximum period of five (5) years, and not full back salaries from his illegal dismissal up to his reinstatement.

WHEREFORE, the petition is DENIED. The assailed February 22, 2007 Decision and May 15, 2007 Resolution of the Court of Appeals, in CA-G.R. SP No. 93781, are hereby AFFIRMED with MODIFICATION that respondent Minerva M.P. Pacheo is hereby ordered reinstated without loss of seniority rights but is only entitled to the payment of back salaries corresponding to five (5) years from the date of her invalid reassignment on May 7, 2002. 

        SO ORDERED.

JOSE CATRAL MENDOZA

                                                             Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

ANTONIO T. CARPIO                         PRESBITERO J. VELASCO, JR. 

        Associate Justice                                          Associate Justice               

TERESITA J. LEONARDO-DE CASTRO    ARTURO D. BRION

Associate Justice                                    Associate Justice

DIOSDADO M. PERALTA                                 LUCAS P. BERSAMIN

Associate Justice                                                Associate Justice

MARIANO C. DEL CASTILLO                             ROBERTO A. ABAD

Associate Justice                                      Associate Justice

MARTIN S. VILLARAMA, JR.                   JOSE PORTUGAL PEREZ

Associate Justice                                    Associate Justice

MARIA LOURDES P. A. SERENO              BIENVENIDO L. REYES

Associate Justice                                 Associate Justice

ESTELA M. PERLAS-BERNABE

Associate Justice

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

        Pursuant to Section 13, Article VIII of the Constitution, I hereby 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.

                                                        RENATO C. CORONA

                                                                Chief Justice

CASE 2012-0006: ANITA L. MIRANDA VS. THE PEOPLE OF THE PHILIPPINES (G.R. No. 176298, 25 JANUARY 2012, VILLARAMA, JR., J.) SUBJECT/S: ACCOUNTANT DEPOSITED CHECKS TO ACCOUNT OF VIVA AND WITHDREW PROCEEDS, LIABLE FOR QUALIFIED THEFT, NOT ESTAFA; COMPUTATION OF PENALTY FOR QUALIFIED THEFT; PENALTY INCREASED TO RECLUSION PERPETUA FOR STOLEN AMOUNT OF P797,187.85. (BRIEF TITLE: MIRANDA VS. PEOPLE).

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

DISPOSITIVE:

WHEREFORE, the January 11, 2007 Decision of the Court of Appeals in CA-G.R. CR No. 29858 affirming the conviction of petitioner Anita L. Miranda for the crime of qualified theft is AFFIRMED with the MODIFICATION that the penalty is increased to reclusion perpetua.

With costs against the petitioner.

SO ORDERED.

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

FIRST DIVISION

x- – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – -x

DECISION

VILLARAMA, JR., J.:

Petitioner Anita L. Miranda appeals the January 11, 2007 Decision¹ of the Court of Appeals (CA) affirming the judgment² of the Regional Trial Court (RTC) of Manila, Branch 20, convicting her of qualified theft.

Petitioner was charged with qualified theft in an Information dated November 28, 2002. The Information reads:

That in or about and during the period comprised between April 28, 1998 and May 2, 2002, inclusive, in the City of Manila, Philippines, the said accused, did then and there wilfully, unlawfully and feloniously, with intent of gain and without the knowledge and consent of the owner thereof, take, steal and carry away the total amount of P797,187.85 belonging to VIDEO CITY COMMERCIAL, INC. and VIVA VIDEOCITY, INC. represented by MIGUEL Q. SAMILLANO, in the following manner, to wit: by making herself the payee in forty-two pre-signed BPI Family Bank checks in the account of Video City Commercial and Jefferson Tan (the latter as franchise[e]) and encashing said checks in the total amount of P797,187.85, for her personal benefit, to the damage and prejudice of said owner in the aforesaid amount of P797,187.85, Philippine Currency.

That the said accused acted with grave abuse of confidence, she being then employed as bookkeeper in the aforesaid firm and as such was privy to the financial records and checks belonging to complainant and was actually entrusted with the said financial records, documents and checks and their transactions thereof in behalf of complainant.³

Upon arraignment, petitioner pleaded not guilty. Trial thereafter ensued.

Summarily, the prosecution proved the following facts: Video City Commercial, Inc. (VCCI) and Viva Video City, Inc. (Viva) were sister companies which managed a chain of stores known as VideoCity. These stores, some company-owned while others were operated in joint ventures with franchisees, were engaged in the sale and rental of video-related merchandises. During the period of April 28, 1998 to May 2, 2002, petitioner was the accounting clerk and bookkeeper of VCCI and Viva. One of her duties was to disburse checks for the accounts she handled. She was assigned to handle twelve (12) VideoCitystore franchise accounts, including those of Tommy Uy, Wilma Cheng, Jefferson Tan and Sharon Cuneta. As regards the franchisee Jefferson Tan, who was out of the country most of the time, Tan pre-signed checks to cover the store’s disbursements and entrusted them to petitioner. The pre-signed checks by Jefferson Tan were from a current account maintained jointly by VCCI and Jefferson Tan at BPI Family Bank, Sta. Mesa. There was also an existing agreement with the bank that any disbursement not exceeding P20,000.00 would require only Tan’s signature.⁴

Taking advantage of Tan’s constant absence from the country, petitioner was able to use Tan’s joint-venture bank account with VCCI as a clearing house for her unauthorized transfer of funds. Petitioner deposited VCCI checks coming from other franchisees’ accounts into the said bank account, and withdrew the funds by writing checks to her name using the checks pre-signed by Tan. It was only after petitioner went on maternity leave and her subsequent resignation from the company in May 2002 that an audit was conducted since she refused to turn over all the financial records in her possession. The audit was made on all the accounts handled by petitioner and it was discovered that she made unauthorized withdrawals and fund transfers amounting to P4,877,759.60.⁵

The prosecution, in proving that petitioner had unlawfully withdrawn P797,187.85 for her own benefit, presented as its witness Jose Laureola, the assistant manager/acting cashier of BPI Family Bank, Sta. Mesa Branch. Laureola presented a microfilm of the checks, the encashed checks and deposit slips. He also presented the bank statement of VCCI which showed the encashment of forty-two (42) checks from the account of VCCI and Jefferson Tan amounting to P797,187.85.⁶

In the face of the prosecution’s evidence, petitioner chose not to present any evidence during trial.

On October 7, 2005, the RTC found petitioner guilty beyond reasonable doubt of qualified theft. The RTC sentenced her to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to eighteen (18) years, two (2) months and twenty-one (21) days of reclusion temporal, as maximum, and to pay VCCI P797,187.85 plus costs.⁷

The RTC found that the prosecution was able to establish that the checks deposited to the joint account of VCCI and Jefferson Tan at BPI Family Bank were unlawfully withdrawn by the petitioner without VCCI’s consent. Petitioner took advantage of her position with VCCI and her access to the checks and its bank accounts.

On appeal, the CA affirmed the decision of the RTC. The CA held that contrary to petitioner’s claim that the prosecution failed to show who was the absolute owner of the thing stolen, there was no doubt that the personal property taken by petitioner does not belong to her but to Jefferson Tan and his joint venture partner VCCI. Thus, petitioner was able to gain from taking other people’s property without their consent. More, she was able to perpetrate the crime due to her position in VCCI which gave her access to the joint venture account of VCCI and Jefferson Tan, both of whom reposed trust and confidence in her. She exploited said trust and confidence to their damage in the amount of P797,187.85.

Undaunted, petitioner filed the instant petition for review on certiorari before this Court, raising the following issues:

1. WHETHER OR NOT THE ACCUSED IS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF QUALIFIED THEFT.

1-a. WHETHER THE PHRASE “X X X SHALL TAKE THE PERSONAL PROPERTY OF ANOTHER WITHOUT THE LATTER’S CONSENT X X X” IN ARTICLE 308 OF THE REVISED PENAL CODE IN RELATION TO ARTICLE 310 OF THE SAME CODE WOULD REQUIRE AS AN ELEMENT OF “QUALIFIED THEFT” AN ESTABLISHED PROOF OF “OWNERSHIP” OF THE PROPERTY ALLEGEDLY STOLEN?

1-b. WHETHER IT IS IMPERATIVE THAT THE DUE EXECUTION AND AUTHENTICITY OF THE ALLEGED SIGNATURES OF THE ACCUSED IN THE CHECKS BE FULLY ESTABLISHED AND IDENTIFIED AND IF NOT SO ESTABLISHED AND IDENTIFIED, THE SAME WOULD BE A FATAL FLAW IN THE EVIDENCE OF THE PROSECUTION WHICH INEVITABLY WOULD LEAD TO ACCUSED’S ACQUITTAL?

1-c. WHETHER THE FAILURE TO ESTABLISH AND AUTHENTICATE OR IDENTIFY THE SIGNATURES OF THE ACCUSED ANNIE MIRANDA AND JEFFERSON TAN CONSTITUTED A FATAL FLAW IN PROVING THAT THE ACCUSED AND JEFFERSON TAN WERE THE AUTHORS OF SAID SIGNATURES?

1-d. [WHETHER THE] CONCLUSION OF FACTS BY THE REGIONAL TRIAL COURT AND COURT OF APPEALS ARE NOT SUPPORTED BY EVIDENCE.

1-e. WHETHER THE CHECKS AND VOUCHERS PRESENTED AS EVIDENCE NOT IN THEIR ORIGINALS SHOULD HAVE BEEN DENIED ADMISSION BY THE COURT A QUO, THERE BEING NO SUFFICIENT FACTS ADDUCED TO JUSTIFY THE PRESENTATION OF XEROX COPIES OR SECONDARY EVIDENCE.⁸

Essentially, the issue for our resolution is whether the CA correctly affirmed petitioner’s conviction for qualified theft.

Petitioner insists that she should not have been convicted of qualified theft as the prosecution failed to prove the private complainant’s absolute ownership of the thing stolen. Further, she maintains that Jefferson Tan’s signatures on the checks were not identified by any witness who is familiar with his signature. She likewise stresses that the checks and vouchers presented by the prosecution were not original copies and that no secondary evidence was presented in lieu of the former.

The appeal lacks merit.

A careful review of the records of this case and the parties’ submissions leads the Court to conclude that there exists no cogent reason to disturb the decision of the CA. We note that the arguments raised by petitioner in her petition are a mere rehash of her arguments raised before, and correctly resolved by, the CA.

The elements of the crime of theft as provided for in Article 308⁹ of the Revised Penal Code are as follows: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.¹⁰ Theft becomes qualified when any of the following circumstances under Article 310¹¹ is present: (1) the theft is committed by a domestic servant; (2) the theft is committed with grave abuse of confidence; (3) the property stolen is either a motor vehicle, mail matter or large cattle; (4) the property stolen consists of coconuts taken from the premises of a plantation; (5) the property stolen is fish taken from a fishpond or fishery; and (6) the property was taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.¹²

Here, the prosecution was able to prove beyond reasonable doubt that the amount of P797,187.85 taken does not belong to petitioner but to VCCI and that petitioner took it without VCCI’s consent and with grave abuse of confidence by taking advantage of her position as accountant and bookkeeper. The prosecution’s evidence proved that petitioner was entrusted with checks payable to VCCI or Viva by virtue of her position as accountant and bookkeeper. She deposited the said checks to the joint account maintained by VCCI and Jefferson Tan, then withdrew a total of P797,187.85 from said joint account using the pre-signed checks, with her as the payee. In other words, the bank account was merely the instrument through which petitioner stole from her employer VCCI.

We find no cogent reason to disturb the above findings of the trial court which were affirmed by the CA and fully supported by the evidence on record. Time and again, the Court has held that the facts found by the trial court, as affirmed in toto by the CA, are as a general rule, conclusive upon this Court¹³ in the absence of any showing of grave abuse of discretion. In this case, none of the exceptions to the general rule on conclusiveness of said findings of facts are applicable.¹⁴ The Court gives weight and respect to the trial court’s findings in criminal prosecution because the latter is in a better position to decide the question, having heard the witnesses in person and observed their deportment and manner of testifying during the trial.¹⁵ Absent any showing that the lower courts overlooked substantial facts and circumstances, which if considered, would change the result of the case, this Court gives deference to the trial court’s appreciation of the facts and of the credibility of witnesses.

Moreover, we agree with the CA when it gave short shrift to petitioner’s argument that full ownership of the thing stolen needed to be established first before she could be convicted of qualified theft. As correctly held by the CA, the subject of the crime of theft is any personal property belonging to another. Hence, as long as the property taken does not belong to the accused who has a valid claim thereover, it is immaterial whether said offender stole it from the owner, a mere possessor, or even a thief of the property.¹⁶ In any event, as stated above, the factual findings of the courts a quo as to the ownership of the amount petitioner stole is conclusive upon this Court, the finding being adequately supported by the evidence on record.

However, notwithstanding the correctness of the finding of petitioner’s guilt, a modification is called for as regards the imposable penalty. On the imposition of the correct penalty, People v. Mercado¹⁷ is instructive. Pursuant to said case, in the determination of the penalty for qualified theft, note is taken of the value of the property stolen, which is P797,187.85 in this case. Since the value exceeds P22,000.00, the basic penalty is prision mayor in its minimum and medium periods to be imposed in the maximum period, that is, eight (8) years, eight (8) months and one (1) day to ten (10) years of prision mayor.

To determine the additional years of imprisonment to be added to the basic penalty, the amount of P22,000.00 is deducted from P797,187.85, which yields a remainder of P775,187.85. This amount is then divided by P10,000.00, disregarding any amount less than P10,000.00. The end result is that 77 years should be added to the basic penalty. However, the total imposable penalty for simple theft should not exceed 20 years. Thus, had petitioner committed simple theft, the penalty would be 20 years of reclusion temporal. As the penalty for qualified theft is two degrees higher, the trial court, as well as the appellate court, should have imposed the penalty of reclusion perpetua.

WHEREFORE, the January 11, 2007 Decision of the Court of Appeals in CA-G.R. CR No. 29858 affirming the conviction of petitioner Anita L. Miranda for the crime of qualified theft is AFFIRMED with the MODIFICATION that the penalty is increased to reclusion perpetua.

With costs against the petitioner.

SO ORDERED.

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

Pursuant to Section 13, Article VIII of the 1987 Constitution, 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.

1Rollo, pp. 24-35. Penned by Associate Justice Amelita G. Tolentino with Associate Justices Conrado M. Vasquez, Jr. and Lucenito N. Tagle concurring. The assailed decision was rendered in CA-G.R. CR No. 29858.

2CA rollo, pp. 33-42. The decision of the RTC was penned by Judge Marivic T. Balisi-Umali.

3Records, p. 1.

4CA rollo, pp. 34-39; rollo, pp. 26-27.

5Id.

6Id. at 38.

7Id. at 39-41.

8Rollo, pp. 12-14.

9Art. 308. Who are liable for theft. – Theft is committed by any person who, with intent to gain but without violence against, or intimidation of persons nor force upon things, shall take personal property of another without the latter’s consent.

x x x x

10People v. Sison, G.R. No. 123183, January 19, 2000, 322 SCRA 345, 363-364.

11Art. 310. Qualified theft. – The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of a plantation, fish taken from a fishpond or fishery or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.

12People v. Sison, supra note 10 at 364.

13See Cosmos Bottling Corporation v. Nagrama, Jr., G.R. No. 164403, March 4, 2008, 547 SCRA 571, 584, citing The Philippine American Life and General Insurance Co. v. Gramaje, G.R. No. 156963, November 11, 2004, 442 SCRA 274, 283.

14See Reyes v. CA, 328 Phil. 171, 179-180 (1996) citing Floro v. Llenado, 314 Phil. 715, 727-728 (1995). The Court, however, may determine the factual milieu of cases or controversies under specific circumstances, such as:

(1) when the inference made is manifestly mistaken, absurd or impossible;

(2) when there is a grave abuse of discretion;

(3) when the finding is grounded entirely on speculations, surmises or conjectures;

(4) when the judgment of the Court of Appeals is based on misapprehension of facts;

(5) when the findings of fact are conflicting;

(6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee;

(7) when the findings of the Court of Appeals are contrary to those of the trial court;

(8) when the findings of fact are conclusions without citation of specific evidence on which they are based;

(9) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion;

(10) when the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record.

15People v. Martinada, G.R. Nos. 66401-03, February 13, 1991, 194 SCRA 36, 41.

16Florenz D. Regalado, Criminal Law Conspectus, First edition, p. 522.

17G.R. No. 143676, February 19, 2003, 397 SCRA 746, 758.