J.A.B. Bulao & Associates

CASE 2011-0147: PEOPLE OF THE PHILIPPINES VS. URBAN SALCEDO ABDURAHMAN ISMAEL DIOLAGRA, ABDULAJID NGAYA, HABER ASARI, ABSMAR ALUK, BASHIER ABDUL, TOTING HANO, JR., JAID AWALAL, ANNIK/RENE ABBAS, MUBIN IBBAH, MAGARNI HAPILON IBLONG, LIDJALON SAKANDAL, IMRAM HAKIMIN SULAIMAN, NADSMER ISNANI SULAIMAN, NADSMER ISNANI MANDANGAN KAMAR JAAFAR, SONNY ASALI AND BASHIER ORDOÑEZ (G.R. NO. 186523, 22 JUNE 2011, PERALTA, J.) SUBJECTS: ALIBI, MINORITY. (BRIEF TITLE: PEOPLE VS. DIOLAGRA ET AL.)

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SUBJECTS/DOCTRINES:

SUBJECT: THE DEFENSE OF ALIBI, BEING INHERENTLY WEAK, CANNOT PREVAIL OVER THE CLEAR AND POSITIVE IDENTIFICATION OF THE ACCUSED AS THE PERPETRATOR OF THE CRIME.

In the face of all that evidence, the only defense accused-appellants could muster are denial and alibi, and for accused-appellants Iblong, Mandangan, Salcedo and Jaafar, their alleged minority.   Accused-appellants’ proffered defense are sorely wanting when pitted against the prosecution’s evidence.  It is established jurisprudence that denial and alibi cannot prevail over the witnesses’ positive identification of the accused-appellants.  More so where, as in the present case, the accused-appellants failed to present convincing evidence that it was physically impossible for them to have been present at the crime scene at the time of the commission thereof.^[1][6]   In People v. Molina,^[2][7] the Court expounded, thus:

          In light of the positive identification of appellant by the prosecution witnesses and since no ill motive on their part or on that of their families was shown that could have made either of them institute the case against the appellant and falsely implicate him in a serious crime he did not commit, appellant’s defense of alibi must necessarily fail. It is settled in this jurisdiction that the defense of alibi, being inherently weak, cannot prevail over the clear and positive identification of the accused as the perpetrator of the crime. x x x^[3][8]

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SUBJECT: THE TRIAL COURT’S EVALUATION OF THE CREDIBILITY OF WITNESSES AND THEIR TESTIMONIES IS CONCLUSIVE ON THIS COURT AS IT IS THE TRIAL COURT WHICH HAD THE OPPORTUNITY TO CLOSELY OBSERVE THE DEMEANOR OF WITNESSES.

Some of the accused-appellants maintained that they were merely forced to join the ASG.   However, the trial court did not find their stories persuasive.  The trial court’s evaluation of the credibility of witnesses and their testimonies is conclusive on this Court as it is the trial court which had the opportunity to closely observe the demeanor of witnesses.^[4][9]   The Court again explained the rationale for this principle in Molina,^[5][10] to wit:

As oft repeated by this Court, the trial court’s evaluation of the credibility of witnesses is viewed as correct and entitled to the highest respect because it is more competent to so conclude, having had the opportunity to observe the witnesses’ demeanor and deportment on the stand, and the manner in which they gave their testimonies. The trial judge therefore can better determine if such witnesses were telling the truth, being in the ideal position to weigh conflicting testimonies. Further, factual findings of the trial court as regards its assessment of the witnesses’ credibility are entitled to great weight and respect by this Court, particularly when the Court of Appeals affirms the said findings, and will not be disturbed absent any showing that the trial court overlooked certain facts and circumstances which could substantially affect the outcome of the case.^[6][11]

The Court cannot find anything on record to justify deviation from said rule.

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SUBJECT: THE RULE IF CHILD IS BELOW 18 AT TIME OF COMMISSION OF CRIME AND 18 OR ABOVE AT THE TIME OF CONVICTION.

Moreover, even assuming arguendo that the four accused-appellants were indeed less than eighteen years old at the time the crime was committed, at this point in time, the applicability of R.A. No. 9344 is seriously in doubt.   Pertinent provisions of R.A. No. 9344 are as follows:

          Sec. 38.  Automatic Suspension of Sentence. – Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed.  However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That the suspension of sentence shall still be applied even if the juvenile is already eighteen  years (18) of age or more at the time of the pronouncement of his/her guilt.

            x x x x

            Sec. 40.  Return of the Child in Conflict with the Law to Court. –

            x x x x

            If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child in accordance with this Act, to order execution of sentence, or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty-one (21) years.^[7][14] 

If accused-appellants’ claim are true, that they were born in 1985 and 1987, then they have already reached 21 years of age, or over by this time and thus, the application of Sections 38 and 40 of R.A. No. 9344 is now moot and academic.^[8][15]

However, just for the guidance of the bench and bar, it should be borne in mind that if indeed, an accused was under eighteen (18) years of age at the time of the  commission of the crime, then as held in People v. Sarcia,^[9][16] such offenders, even if already over twenty-one (21) years old at the time of conviction, may still avail of the benefits accorded by Section 51 of R.A. No. 9344 which provides, thus:

          Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. – A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the BUCOR, in cooperation with the DSWD.

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Republic of thePhilippines

Supreme Court

Manila

SECOND DIVISION

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

D E C I S I O N

PERALTA, J.:

          This is an automatic review of the Decision^[10][1] of the Court of Appeals (CA) promulgated on November 24, 2008, in accordance with Section 2 of Rule 125, in relation to Section 3 of Rule 56 of the Rules of Court.  The CA found accused-appellants guilty beyond reasonable doubt of the crime of kidnapping in Criminal Case Nos. 3608-1164, 3611-1165, and 3674-1187 and sentenced them to reclusion perpetua.

          A close examination of the records would reveal the CA’s narration of the antecedent facts to be accurate, to wit:

            Accused-appellants interpose the present appeal to the Decision of branch 2 of the RegionalTrialCourtofIsabelaCity, Basilan, convicting them for the crime of Kidnapping and Serious Illegal Detention with Ransom, as defined and penalized under Article 267 of the Revised Penal Code, as amended by Republic Act No. 7659.  After arraignment and due trial, accused-appellants were found guilty and, accordingly, sentenced in Criminal Case No. 3537-1129 to Reclusion Perpetua, and in Criminal Case Nos. 3608-1164, 3611-1165, and 3674-1187 to the Death Penalty.

            The Decision in Criminal Case No. 3537-1129 decreed as follows:

            WHEREFORE, in Criminal Case No. 3537-1129, for the kidnapping of Joe Guillo, the Court finds the following accused guilty beyond reasonable doubt as principals:

1.                 Urban Salcedo, a.k.a. “Wahid Guillermo

           Salcedo”/”Abu Urban”

2.                 Abdurahman Ismael Diolagla, a.k.a. “Abu Sahrin”

3.                 Abdulajid Ngaya, a.k.a. “Abu Ajid”

4.                 Haber Asari, a.k.a. “Abu Habs”

5.                 Absmar Aluk, a.k.a. “Abu Adzmar/Abu Aluk”

6.                 Bashier Abdul, a.k.a. “Abu Jar”

7.                 Toting Hano, Jr., a.k.a. “Abu Jakaria” (in abstentia)

8.                 Jaid Awalal, a.k.a. “Abu Jaid” (in abstencia)

9.                 Mubin Ibbah, a.ka. “Abu Black” (in abstentia)

10.             Annik/Rene Abbas, a.k.a. “Abu Annik” (in

            abstentia)

11.             Margani Hapilon Iblong, a.k.a. “Abu Nadim”

12.             Lidjalong Sakandal/Sabandal

13.             Imran Hakimin y Sulaiman, a.k.a. “Abu Nadim”

14.             Nadzmer Isnani Mangangan, a.k.a. “Abu Harun”

15.             Kamar Jaagar, a.k.a. “Abu Jude”

16.             Sonny Asali, a.k.a. “Abu Teng”/”Abu Umbra,” and

17.             Bashier Ordonez, a.k.a. “Abu Bashier”

as defined and penalized under Section 8 of Republic Act No. 7659, amending Article 267 of the Revised Penal Code, and applying Art. 63 of the Code, the lesser penalty of RECLUSION PERPETUA is hereby imposed on them.

            The aforementioned accused shall jointly and severally pay Joel Guillo by way of moral damages the sum of P200,000.00, pursuant to paragraph 5, Article 2217 of the Civil Code, with proportionate costs against them.

            On the other hand, the court a quo in Criminal Case No. 3608-1164 decreed as follows:

            In Criminal Case No. 3608-1164, for the kidnapping of Reina Malonzo, the court finds the following accused guilty beyond reasonable doubt as principals:

1.                 Urban Salcedo, a.k.a. “Wahid Guillermo

            Salcedo”/”Abu Urban”

2.                 Abdurahman Ismael Diolagla, a.k.a “Abu Sahrin”

3.                 Abdulajid Ngaya, a.k.a. “Abu Ajid”

4.                 Haber Asari, a.k.a. “Abu Habs”

5.                 Absmar Aluk, a.k.a. “Abu Adzmar/Abu Aluk”

6.                 Bashier Abdul, a.k.a. “Abu Jar”

7.                 Toting Hano, Jr., a.k.a. “Abu Jakaria” (in abstentia)

8.                 Jaid Awalal, a.k.a. “Abu Jaid” (in abstentia)

9.                 Mubin Ibbah, a.k.a. “Abu Black” (in abstentia)

10.             Annik/Rene Abbas, a.k.a. “Abu Annik” (in

            abstentia)

11.             Margani Hapilon Iblong, a.k.a. “Abu Nadim”

12.             Lidjalong Sakandal/Sabandal

13.             Imran Hakimin y Sulaiman, a.k.a. “Abu Nadim”

14.             Nadzmer Isnani Mangangan, a.k.a. “Abu Harun”

15.             Kamar Jaagar, a.k.a. “Abu” Jude”

16.             Sonny Asali, a.k.a. “Abu Teng”/”Abu Umbra,” and

17.             Bashier Ordonez, a.k.a. “Abu Bashier”

as defined and penalized under Section 8 of Republic Act No. 7659, amending Article 267 of the Revised Penal Code, and applying Art. 63 of the Code, are hereby sentenced to the extreme penalty of DEATH.

            The aforementioned accused shall jointly and severally pay Reina Malonzo by way of moral damages the sum of P200,000.00, pursuant to paragraph 5, Article 2217 of the Civil Code, with proportionate costs against them.

            Likewise, the lower court, in Criminal Case No. 3611-1165 decreed as follows:

            In Criminal Case No. 3611-1165, for the kidnapping of Shiela Tabuñag, the (court) finds the following accused guilty beyond reasonable doubt as principals:

1.                 Urban Salcedo, a.k.a. “Wahid Guillermo

           Salcedo”/”Abu Urban”

2.                 Abdurahman Ismael Diolagla, a.k.a. “Abu Sahrin”

3.                 Abdulajid Ngaya, a.k.a. “Abu Ajid”

4.                 Haber Asari, a.k.a. “Abu Habs”

5.                 Absmar Aluk, a.k.a. “Abu Adzmar/Abu Aluk”

6.                 Bashier Abdul, a.k.a. “Abu Jar”

7.                 Toting Hano, Jr., a.k.a. “Abu Jakaria” (in abstentia)

8.                 Jaid Awalal, a.k.a. “Abu Jaid” (in abstentia)

9.                 Mubin Ibbah, a.k.a. “Abu Black” (in abstentia)

10.             Annik/Rene Abbas, a.k.a. “Abu Annik” (in

           abstentia)

11.             Margani Hapilon Iblong, a.k.a. “Abu Nadim”

12.             Lidjalong Sakandal/Sabandal

13.             Imran Hakimin y Sulaiman, a.k.a. “Abu Nadim”

14.             Nadzmer Isnani Mangangan, a.k.a. “Abu Harun”

15.             Kamar Jaagar, a.k.a. “Abu” Jude”

16.             Sonny Asali, a.k.a. “Abu Teng”/”Abu Umbra,” and

17.             Bashier Ordonez, a.k.a. “Abu Bashier”

as defined and penalized under Section 8 of Republic Act No. 7659, amending Article 267 of the Revised Penal Code, and applying Art. 63 of the Code, are hereby sentenced to the extreme penalty of DEATH.

            The aforementioned accused shall jointly and severally pay Shiela Tabuñag by way of moral damages the sum of P200,000.00, pursuant to paragraph 5, Article 2217 of the Civil Code, with proportionate costs against them.

            And in Criminal Case No. 3674-1187, it entered its judgment against the accused-appellants as follows:

            In Criminal Case No. 3674-1187, for the kidnapping of Ediborah Yap, the court finds the following accused guilty beyond reasonable doubt as principals:

           Urban Salcedo, a.k.a. “Wahid Guillermo Salcedo”/”Abu Urban”

           Abdurahman Ismael Diolagla, a.k.a “Abu Sahrin”

           Abdulajid Ngaya, a.k.a. “Abu Ajid”

           Haber Asari, a.k.a. “Abu Habs”

           Absmar Aluk, a.k.a. “Abu Adzmar/Abu Aluk”

           Bashier Abdul, a.k.a. “Abu Jar”

           Toting Hano, Jr., a.k.a. “Abu Jakaria” (in abstentia)

           Jaid Awalal, a.k.a. “Abu Jaid” (in abstentia)

           Mubin Ibbah, a.k.a. “Abu Black” (in abstentia)

           Annik/Rene Abbas, a.k.a. “Abu Annik” (in abstentia)

           Margani Hapilon Iblong, a.k.a. “Abu Nadim”

           Lidjalong Sakandal/Sabandal

           Imran Hakimin y Sulaiman, a.k.a. “Abu Nadim”

           Nadzmer Isnani Mangangan, a.k.a. “Abu Harun”

           Kamar Jaagar, a.k.a. “Abu” Jude”

           Sonny Asali, a.k.a. “Abu Teng”/”Abu Umbra,” and

           Bashier Ordonez, a.k.a. “Abu Bashier”

as defined and penalized under Section 8 of Republic Act No. 7659, amending Article 267 of the Revised Penal Code, and applying Art. 63 of the Code, are hereby sentenced to the extreme penalty of DEATH.

            The aforementioned accused shall jointly and severally pay to the heirs of Ediborah Yap by way of civil indemnity the sum of P50,000.00, moral damages in the sum of P200,000.00 and, considering the attendant aggravating circumstances, the sum of P100,000.00 by way of exemplary damages.

                  SO ORDERED.

            The salient facts in this case are the following:

            On June 1, 2001, Shiela Tabuñag, Reina Malonzo, and Ediborah Yap, were serving their duty shift as nurses atJoseMariaTorresMemorialHospitalin Lamitan, Basilan.  Joel Guillo, the hospital accountant, on the other hand, had just finished his duty and decided to rest in the doctors’ quarter.

            At around 12:30 past midnight of June 2, 2001, the Abu Sayaff Group (ASG for brevity) led by Khadaffy Janjalani and Abu Sabaya, with 30 armed followers entered and took control over said hospital.  Previously,  however, another group of ASG with 60 followers led by Abu Umran hiked towards Lamitan for the sole purpose of reinforcing the group of Khadaffy Janjalani and Abu Sabaya.  However, upon reaching the vicinity of the hospital, a firefight had already ensued between the military forces and the group of Janjalani and Sabaya.  Simultaneously, the band also became entangled in a firefight with a civilian group led by one retired Col. Baet, who was killed during the encounter.  Moments later, the band fled to different directions, with its members losing track of one another.

            Pandemonium ensued in the hospital on that early morning, as the people were thrown into a frenzy by the shouting, window glass breaking, and herding of hostages from one room to another by the ASG.  The group was also looking for medicine and syringes for their wounded comrades as well as food and clothing.  The firefight lasted until the afternoon of June 2, 2001.  Finally, at around 6:00 in the evening, the ASG and the hostages, including those from the Dos Palmas Resort, were able to slip out of the hospital through the backdoor, despite the intense gunfire that was ongoing.  Hence, the long and arduous hiking towards the mountains began.

            On June 3, 2001, at about noontime, the group of Janjalani and Sabaya met with the group of Abu Ben in Sinagkapan, Tuburan.  The next day, Himsiraji Sali with approximately 60 followers also joined the group.  It was only on the third week on July that year that the whole group of Abu Sayaff was completed, when it was joined by the group of Sattar Yacup, a.k.a. “Abu Umran.”

            Subsequently, new hostages from the Golden Harvest plantation in Tairan, Lantawan were abducted by the Hamsiraji Sali and Isnilun Hapilon.

            On June 12, 2001, Abu Sabaya informed the hostages that Sobero had been beheaded and was warned of the consequences should said hostages fail to cooperate with the ASG.  Hence, the ASG formed a “striking force” that then proceeded to behead 10 innocent civilians.

            On October 1, 2001, Reina Malonzo was separated from the other hostages and taken toZamboangaCityby Abu Arabi with two other ASG members on board a passenger watercraft to stay at a house in Sta. Maria.  Later on October 13, 2001, a firefight broke out between the ASG and the military, giving Joel Guillo and 3 other hostages the opportunity to escape from their captors.  On even date, Sheila Tabuñag was released together with 2 other hostages from Dos Palmas, allegedly after paying ransom.  Reina Malonzo was soon after also released by order of Khaddafy Janjalani on November 1, 2001.

            Finally, after a shootout between the ASG and the military on June 7, 2002, at Siraway, Zamboanga del Norte, Ediborah Yap, died at the hands of her captors.  Thereafter, a manhunt by the military was conducted, where the accused-appellants were subsequently captured and held for trial.

            Hence, criminal informations for kidnapping and serious illegal detention under Art. 267 of the Revised Penal Code as amended by Sec. 8 of R.A. No. 7659 were filed against 17 ASG members on August 14, 2001, October 29, 2001, March 6, 2002, and March 12, 2002.  As defense for the accused-appellants, 11 of the 17 of them raise the defense of alibi.  Among them were Jaid Awalal, Imran Hakimin Sulaiman, Toting Hano, Jr., Abdurahman Ismael Diolagla, Mubin Ibbah, Absmar Aluk, Bashier Abdul, Annik/Rene Abbas, Haber Asari, Margani Hapilon Iblong, and Nadzmer Mandangan.  On the other hand, Bashier Ordonez, Sonny Asali, Lidjalon Sakandal/Sabandal, and Abdulajid Ngaya claimed that they were merely forced by the Abu Sayyaf to join the group.  The defense of being deep penetration agents of the military was conversely raised by 2 accused-appellants, Urban Salcedo and Kamar Jaafar.

            After due trial, the court a quo, on August 13, 2004, rendered the appealed decisions which convicted all the accused-appellants of the crime of kidnapping with serious illegal detention.^[11][2]

          In Criminal Case No. 3537-1129, for the kidnapping of Joel Guillo, accused-appellants were sentenced to reclusion perpetua; in Criminal Case No. 3608-1164, for the kidnapping of Reina Malonzo, they were sentenced to Death; in Criminal Case No. 3611-1165, for the kidnapping of Sheila Tabuñag, they were sentenced to Death; and in Criminal Case No. 3674-1187, for the kidnapping of Ediborah Yap, they were also sentenced to Death.

          The case was then brought to this Court for automatic review in view of the penalty of death imposed on accused-appellants. However, in accordance with the ruling in People v. Mateo,^[12][3] and the amendments made to Sections 3 and 10 of Rule 122, Section 13 of Rule 124, and Section 3 of Rule 125 of the Revised Rules on Criminal Procedure, the Court transferred this case to the CA for intermediate review.

          On November 24, 2008, the CA promulgated its Decision, the dispositive portion of which reads as follows:

          WHEREFORE, in view of the foregoing premises, We hold to AFFIRM the appealed judgments with the modification that the penalty  of death be reduced to Reclusion Perpetua in Criminal Case Nos. 3608-1164, 3611-1165, and 3674-1187.

            SO ORDERED.^[13][4]

          Thus, the case is now before this Court on automatic review.  Both the prosecution and the accused-appellants opted not to file their respective supplemental briefs with this Court. 

          In the Brief for Accused-Appellants filed with the CA, it was argued that the prosecution’s evidence was insufficient to prove guilt beyond reasonable doubt.  It was further averred that some of the accused-appellants were merely forced to join the Abu Sayyaf Group (ASG) for fear for their lives and those of their relatives, while four (4) of them, namely, Wahid Salcedo, Magarni Hapilon Iblong, Nadzmer Mandangan and Kamar Jaafar, were supposedly minors at the time the alleged kidnapping took place; hence, Republic Act (R.A.) No. 9344 (otherwise known as the Juvenile Justice and Welfare Act of 2006), should apply to said accused-appellants.  It was then prayed that accused-appellants Nadzmer Isnani Madangan, Magarni Hapilon Iblong, Wahid Salcedo, Kamar Jaafar, Abdulajid Ngaya, Lidjalon Sakandal and Sonny Asali be acquitted, while the sentence for the rest of the accused-appellants be reduced to reclusion perpetua. 

          On the other hand, appellee maintained that the State had been able to prove accused-appellants’ guilt beyond reasonable doubt and that the defense failed to adduce proof of minority of the four accused-appellants.

          The Court finds no reason to reverse or modify the ruling and penalty imposed by the CA.

          The defense itself admitted that the kidnapped victims who testified for the prosecution had been able to point out or positively identify in open court all the accused-appellants^[14][5] as members of the ASG who held them in captivity.  Records reveal that the prosecution witnesses were unwavering in their account of how accused-appellants worked together to abduct and guard their kidnapped victims, fight-off military forces who were searching and trying to rescue said victims, and how ransom was demanded and paid.  The prosecution likewise presented two former members of the ASG who testified that they were part of the group that reinforced the kidnappers and helped guard the hostages.  They both identified accused-appellants as their former comrades.

          In the face of all that evidence, the only defense accused-appellants could muster are denial and alibi, and for accused-appellants Iblong, Mandangan, Salcedo and Jaafar, their alleged minority.   Accused-appellants’ proffered defense are sorely wanting when pitted against the prosecution’s evidence.  It is established jurisprudence that denial and alibi cannot prevail over the witnesses’ positive identification of the accused-appellants.  More so where, as in the present case, the accused-appellants failed to present convincing evidence that it was physically impossible for them to have been present at the crime scene at the time of the commission thereof.^[15][6]   In People v. Molina,^[16][7] the Court expounded, thus:

          In light of the positive identification of appellant by the prosecution witnesses and since no ill motive on their part or on that of their families was shown that could have made either of them institute the case against the appellant and falsely implicate him in a serious crime he did not commit, appellant’s defense of alibi must necessarily fail. It is settled in this jurisdiction that the defense of alibi, being inherently weak, cannot prevail over the clear and positive identification of the accused as the perpetrator of the crime. x x x^[17][8]

          Furthermore, the detention of the hostages lasted for several months and they were transferred from one place to another, being always on the move for several days.  Thus, in this case, for accused-appellants’ alibi to prosper, they are required to prove their whereabouts for all those months.  This they were not able to do, making the defense of alibi absolutely unavailing.

          Some of the accused-appellants maintained that they were merely forced to join the ASG.   However, the trial court did not find their stories persuasive.  The trial court’s evaluation of the credibility of witnesses and their testimonies is conclusive on this Court as it is the trial court which had the opportunity to closely observe the demeanor of witnesses.^[18][9]   The Court again explained the rationale for this principle in Molina,^[19][10] to wit:

As oft repeated by this Court, the trial court’s evaluation of the credibility of witnesses is viewed as correct and entitled to the highest respect because it is more competent to so conclude, having had the opportunity to observe the witnesses’ demeanor and deportment on the stand, and the manner in which they gave their testimonies. The trial judge therefore can better determine if such witnesses were telling the truth, being in the ideal position to weigh conflicting testimonies. Further, factual findings of the trial court as regards its assessment of the witnesses’ credibility are entitled to great weight and respect by this Court, particularly when the Court of Appeals affirms the said findings, and will not be disturbed absent any showing that the trial court overlooked certain facts and circumstances which could substantially affect the outcome of the case.^[20][11]

The Court cannot find anything on record to justify deviation from said rule.

          Lastly, the Court sustains the trial court’s and the appellate court’s ruling regarding the minority of accused-appellants Iblong, Mandangan, Salcedo and Jaafar.   Iblong claimed he was born on August 5, 1987; Mandangan stated his birth date as July 6, 1987; Salcedo said he was born on January 10, 1985; and Jaafar claimed he was born on July 13, 1981.   If Jaafar’s birth date was indeed July 13, 1981, then he was over 18 years of age when the crime was committed in June of 2001 and, thus, he cannot claim minority.  It should be noted that the defense absolutely failed to present any document showing accused-appellants’ date of birth, neither did they present testimonies of other persons such as parents or teachers to corroborate their claim of minority. 

          Section 7 of  R.A. No. 9344 provides that:

          Sec. 7.  Determination of Age. –   The child in conflict with the law shall enjoy the presumption of minority.  He/She shall enjoy all the rights of a child in conflict with the law until he/she is proven to be eighteen (18) years old or older.   The age of a child may be determined from the child’s birth certificate, baptismal certificate or any other pertinent documents.  In the absence of these documents, age may be based on information from the child himself/herself, testimonies of other persons, the physical appearance of the child and other relevant evidence.  In case of doubt as to the age of the child, it shall be resolved in his/her favor.

            x x x x

            If a case has been filed against the child in conflict with the law and is pending in the appropriate court, the person shall file a motion to determine the age of the child in the same court where the case is pending.  Pending hearing on the said motion, proceedings on the main case shall be suspended.

            In all proceedings, law enforcement officers, prosecutors, judges and other government officials concerned shall exert all efforts at determining the age of the child in conflict with the law.^[21][12]

          It should be emphasized that at the time the trial court was hearing the case and even at the time it handed down the judgment of conviction against accused-appellants on August 13, 2004, R.A. No. 9344 had not yet been enacted into law.  The procedures laid down by the law to prove the minority of accused-appellants were not yet in place.  Hence, the rule was still that the burden of proving the minority of the accused rested solely on the defense.  The trial court, in the absence of any document stating the age of the aforementioned four accused-appellants, or any corroborating testimony, had to rely on its own observation of the physical appearance of accused-appellants to estimate  said accused-appellants’ age.  A reading of the afore-quoted Section 7 of R.A. No. 9344 shows that this manner of determining accused-appellants’ age is also sanctioned by the law.    The accused-appellants appeared to the trial court as no younger than twenty-four years of age, or in their mid-twenties, meaning they could not have been under eighteen (18) years old when the crime was committed.^[22][13]   As discussed above, such factual finding of the trial court on the age of the four accused-appellants, affirmed by the CA, must be accorded great respect, even finality by this Court.

          Moreover, even assuming arguendo that the four accused-appellants were indeed less than eighteen years old at the time the crime was committed, at this point in time, the applicability of R.A. No. 9344 is seriously in doubt.   Pertinent provisions of R.A. No. 9344 are as follows:

          Sec. 38.  Automatic Suspension of Sentence. – Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed.  However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That the suspension of sentence shall still be applied even if the juvenile is already eighteen  years (18) of age or more at the time of the pronouncement of his/her guilt.

            x x x x

            Sec. 40.  Return of the Child in Conflict with the Law to Court. –

            x x x x

            If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child in accordance with this Act, to order execution of sentence, or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty-one (21) years.^[23][14] 

          If accused-appellants’ claim are true, that they were born in 1985 and 1987, then they have already reached 21 years of age, or over by this time and thus, the application of Sections 38 and 40 of R.A. No. 9344 is now moot and academic.^[24][15]

          However, just for the guidance of the bench and bar, it should be borne in mind that if indeed, an accused was under eighteen (18) years of age at the time of the  commission of the crime, then as held in People v. Sarcia,^[25][16] such offenders, even if already over twenty-one (21) years old at the time of conviction, may still avail of the benefits accorded by Section 51 of R.A. No. 9344 which provides, thus:

          Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. – A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the BUCOR, in cooperation with the DSWD.

Nevertheless, as discussed above, the evidence before the Court show that accused-appellants Iblong, Mandangan, Salcedo and Jaafar, were not minors at the time of the commission of the crime, hence, they cannot benefit from R.A. No. 9344. 

          WHEREFORE, the Decision of the Court of Appeals, dated November 24, 2008 in CA-G.R. CR.-H.C No. 00239, is hereby AFFIRMED.

SO ORDERED.

DIOSDADO M. PERALTA

                                                                   Associate Justice

WE CONCUR:

ANTONIO T. CARPIO

Associate Justice

Chairperson

  TERESITA J. LEONARDO-DE CASTRO           ROBERTO A. ABAD

                    Associate Justice                                        Associate Justice       

JOSE CATRAL MENDOZA

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

                                                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 2011-0146: FELICISIMA R. DIAZ VS. JUDGE GERARDO E. GESTOPA, JR., MUNICIPAL TRIAL COURT, NAGA, CEBU (A.M. NO. MTJ-11-1786, 22 JUNE 2011, PERALTA, J.) SUBJECT: GROSS IGNORANCE OF THE LAW. (BRIEF TITLE: DIAZ VS. JUDGE GESTOPA).

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SUBJECTS/DOCTRINES/DIGEST:

DIGEST:

THIS CASE INVOLVES UNLAWFUL DETAINER. DURING PRELIMINARY CONFERENCE THE JUDGE ORDERED THE CASE REFERRED TO BARANGAY RECONCILIATION. COUNSEL OF COMPLAINANT INFORMED THE COURT THAT IT WAS ALREADY REFERRED TO BARANGAY RECONCILIATION AND THERE WAS ALREADY A CERTIFICATE TO FILE ACTION. WAS THE ACTION OF THE JUDGE PROPER?

NO. IT WILL JUST DELAY THE CASE. UNLAWFUL DETAINER FALLS UNDER SUMMARY PROCEDURE. SPEEDY RESOLUTION IS A MATTER OF PUBLIC POLICY.

Indeed, in Farrales v. Camarista,^[1][4] the Court explained that while the last paragraph of the afore-cited provision apparently gives the Court discretion to refer the case to the lupon for amicable settlement although it may not fall within the authority of the lupon, the referral of said subject civil case to the lupon is saliently an unsound exercise of discretion, considering that the matter falls under the Rule on Summary Procedure.  The reason is because the Rule on Summary Procedure was promulgated for the purpose of achieving “an expeditious and inexpensive determination of cases.”  The fact that unlawful detainer cases fall under summary procedure, speedy resolution thereof is thus deemed a matter of public policy. To do otherwise would ultimately defeat the very essence of the creation of the Rules on Summary Procedure.

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SUBJECT: WHAT IS THE LIABILITY OF THE JUDGE?

THE JUDGE WAS HELD LIABLE FOR GROSS IGNORANCE OF THE LAW AND FINED P21,000.00. THIS WAS NOT THE FIRST TIME HE WAS PENALIZED.

Under Rule 140 of the Rules of Court, gross ignorance of the law or procedure is a serious charge for which the respondent judge shall be penalized with either (a) dismissal; (b) suspension from office; or (c) a fine of more than P20,000.00 but not more than P40,000.00. In this case, considering respondent judge’s two previous administrative infractions, we deem it proper to impose a fine in the amount of P21,000.00.

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SUBJECT: THE JUDGE ALLEGED THAT HE WAS ACTING IN GOOD FAITH. IS THIS A SUFFICIENT EXCUSE?

NO BECAUSE THE RULES VIOLATED WERE BASIC PROCEDURAL RULES.

Time and again, we have reiterated that the rules of procedure are clear and unambiguous, leaving no room for interpretation.  We have held in numerous cases that the failure to apply elementary rules of procedure constitutes gross ignorance of the law and procedure.  Neither good faith nor lack of malice will exonerate respondent, because as previously noted, the rules violated were basic procedural rules.  All that was needed for respondent to do was to apply them.

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Republic of thePhilippines

Supreme Court

Manila

SECOND DIVISION

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D E C I S I O N

PERALTA, J.:

          Before us is an administrative complaint filed by complainant Felicisima R. Diaz against Judge Gerardo E. Gestopa, Jr., Municipal Trial Court (MTC), Naga, Cebu, for incompetence, gross ignorance of the law, neglect of duty, and conduct unbecoming of a judge relative to Civil Case No. R-595 entitled Felicisima Rivera-Diaz v. Spouses Ruel & Diana Betito and Isidro Pungkol.

          The antecedent facts are as follows:

Complainant alleged that on April 27, 2009, she filed an unlawful detainer case before the MTC of Naga, Cebu, entitled Felicisima Rivera-Diaz v. Spouses Ruel & Diana Betito and Isidro Pungkol, docketed as Case No. R-595.  On July 8, 2009, the case was scheduled for pre-trial conference.  Since complainant cannot attend the conference because of her heart ailment, she instead sent her nephew, Elmer Llanes, to appear in her behalf.

          During the conference, Judge Gestopa recommended the case for barangay conciliation, pursuant to Section 408 (g) of the Local Government Code.^[2][1]  Complainant’s counsel objected and moved for mediation instead. However, respondent judge insisted that he has the authority to refer it back to barangay for conciliation.

          Judge Gestopa concluded that since the subject property is in Naga, and that complainant has always been a resident of Naga, it is therefore proper to refer the case for barangay conciliation.  Complainant, on the other hand, claimed that she is no longer a resident of Naga.

          Complainant moved for reconsideration.  She argued that the referral of the case to the lupon is a violation of the Rules on Summary Procedure. She stressed that she is no longer a resident of Naga and is now actually residing in Dumlog, Talisay City, Cebu.  Complainant further pointed out that the case had already been previously referred to the lupon.  In fact, a Certification to File Action in court had been issued on May 20, 2008.  She further admitted that she did not attach the certificate to the complaint since she believed that the same was not required anymore, considering that the parties are not residents of the same barangay or municipality.

          On July 20, 2009, Judge Gestopa denied the motion for reconsideration.

          Dissatisfied, complainant filed the instant administrative complaint against Judge Gestopa.  Complainant alleged that respondent judge exhibited gross ignorance of the law in referring the case back to barangay conciliation when clearly she is not a resident of Naga.  She accused respondent judge of unduly delaying for months the resolution of the case.  She further claimed that respondent judge appeared to be biased, thus, she requested that the case be transferred to another court.

          On May 5, 2010, the Office of the Court Administrator (OCA) directed Judge Gestopa to submit his Comment on the complaint against him.

          In his Comment dated August 2, 2010, Judge Gestopa argued that the referral of the case to the barangay for conciliation was made in good faith, to give way for the possible amicable settlement of the parties.  He insisted that complainant was just trying to circumvent the Katarungang Pambarangay Law.  Respondent judge pointed out that while complainant denied that she is a resident of Naga, she however actually sought barangay conciliation, as evidenced by the Certification to File Action dated May 20, 2008, which was issued by BarangayNorth Poblacion and attached to the complainant’s motion for reconsideration.

          Respondent judge, however, admitted that on November 16, 2009, the members of the Lupong Tagapamayapa of Barangay North Poblacion declared that barangay conciliation between the parties failed to reach a settlement.  Thus, an Order was issued directing the parties to appear before the Philippine Mediation Center (PMC) for mediation.  On February 17, 2010, the PMC submitted the Mediator’s Report of “Unsuccessful Mediation.”

          In a Memorandum dated January 12, 2011, the OCA found Judge Gestopa guilty of gross ignorance of the law and procedure, and recommended that he be fined in the amount of Forty Thousand Pesos (P40,000.00).  The instant administrative case was, likewise, recommended to be redocketed as a regular administrative matter against Judge Gestopa.

                                                RULING

          The findings of the OCA are well taken.

          There is no doubt that Civil Case No. R-595 was a case of unlawful detainer covered by the Revised Rules on Summary Procedure.

          The Rule on Summary Procedure clearly and undoubtedly provides for the period within which judgment should be rendered.  Section 10 thereof provides:

SEC. 10. Rendition of judgment. – Within thirty (30) days after receipt of the last affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment.

However, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said matters within ten (10) days from receipt of said order.  Judgment shall be rendered within fifteen (15) days after the receipt of the last clarificatory affidavits, or the expiration of the period for filing the same.

The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment.

-s

          It is thus very clear that the period for rendition of judgments in cases falling under summary procedure is 30 days.  This is in keeping with the spirit of the rule which aims to achieve an expeditious and inexpensive determination of the cases falling thereunder.^[3][2]

          Respondent judge argued that such referral to the barangay is justified by Section 408 (g) of the Local Government Code.^[4][3]  We are unconvinced.

          Indeed, in Farrales v. Camarista,^[5][4] the Court explained that while the last paragraph of the afore-cited provision apparently gives the Court discretion to refer the case to the lupon for amicable settlement although it may not fall within the authority of the lupon, the referral of said subject civil case to the lupon is saliently an unsound exercise of discretion, considering that the matter falls under the Rule on Summary Procedure.  The reason is because the Rule on Summary Procedure was promulgated for the purpose of achieving “an expeditious and inexpensive determination of cases.”  The fact that unlawful detainer cases fall under summary procedure, speedy resolution thereof is thus deemed a matter of public policy. To do otherwise would ultimately defeat the very essence of the creation of the Rules on Summary Procedure.

          To further strengthen and emphasize the objective of expediting the adjudication  of cases  falling under the Revised Rules on Summary Procedure,  Sections 7 and 8 mandated preliminary conference which is precisely for   the purpose of giving room for a possible amicable settlement, to wit:

SEC. 7. Preliminary conference; appearance of parties. – Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. The rules on pre-trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule.

The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of his complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with Section 6 hereof. All cross-claims shall be dismissed.

If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with Section 6 hereof. This Rule shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference.

Section 8 of said Rule reads in full:

SEC. 8. Record of preliminary conference. – Within five (5) days after the termination of the preliminary conference, the court shall issue an order stating the matters taken up therein, including but not limited to:

a)…..Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;

b)…..The stipulations or admissions entered into by the parties;

c)…..Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty (30) days from issuance of the order;

d)…..A clear specification of material facts which remain controverted; and

e)…..Such other matters intended to expedite the disposition of the case.

          Thus, there was no reason anymore to refer the case back to the barangay for the sole purpose of amicable settlement, because the abovementioned Sections 7 and 8  provided already for such action.

          Furthermore, considering that complainant had already manifested in court, albeit belatedly, the presence of what it considered to be a valid Certification to File Action in court due to unsuccessful conciliation, respondent’s act of referring the case to barangay conciliation rendered its purpose moot and academic.

          We cannot accept the justifications made by respondent judge, considering that this is not the first time that he seemed to be at loss as to how to correctly interpret the Rules on Summary Procedure.  We note that he had been previously penalized in two other administrative cases due to his failure to decide the cases falling under the Rules on Summary Procedure within the reglementary period, to wit: in In Re: A.M. No. MTJ-99-1181, Renato M. Casia v. Judge Gerardo E. Gestopa, Jr., August 11, 1999, respondent judge was fined in the amount of P1,000.00 for his failure to decide a case within the required period; likewise, in A.M. No. MTJ-00-1303, Vidala Saceda v. Judge Gerardo E. Gestopa, Jr., December 13, 2001, for a similar offense, respondent judge was fined in the amount of P10,000.00.

          Time and again, we have reiterated that the rules of procedure are clear and unambiguous, leaving no room for interpretation.  We have held in numerous cases that the failure to apply elementary rules of procedure constitutes gross ignorance of the law and procedure.  Neither good faith nor lack of malice will exonerate respondent, because as previously noted, the rules violated were basic procedural rules.  All that was needed for respondent to do was to apply them.

          Under Rule 140 of the Rules of Court, gross ignorance of the law or procedure is a serious charge for which the respondent judge shall be penalized with either (a) dismissal; (b) suspension from office; or (c) a fine of more than P20,000.00 but not more than P40,000.00. In this case, considering respondent judge’s two previous administrative infractions, we deem it proper to impose a fine in the amount of P21,000.00.

          WHEREFORE, the Court finds Judge Gerardo E. Gestopa, Jr., Municipal Trial Court, Naga, Cebu, GUILTY of Gross Ignorance of the Law and is hereby FINED in the amount of Twenty-One Thousand Pesos (P21,000.00), with a STERN WARNING that a repetition of the same or similar offenses in the future shall be dealt with more severely.

SO ORDERED.

DIOSDADO M. PERALTA

                                                         Associate Justice

WE CONCUR:

ANTONIO T. CARPIO

Associate Justice

Chairperson

  TERESITA J. LEONARDO-DE CASTRO           ROBERTO A. ABAD

                    Associate Justice                                        Associate Justice       

JOSE CATRAL MENDOZA

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

                                                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 2011-0145: WILLIAM ENDELISEO BARROGA VS.  DATA CENTER COLLEGE OF THE PHILIPPINES AND  IFRED BACTAD (G.R. NO. 174158, 27 JUNE 2011,  DEL CASTILLO, J.) SUBJECTS: CONSTRUCTIVE DISMISSAL; TRANSFER; DIMINUTION OF BENEFITS; LIBERAL INTERPRETATION OF THE RULES. (BRIEF TITLE: BARROGA VS. DATA CENTER COLLEGE)

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SUBJECTS/DOCTRINES/ DIGEST

THIS IS ONE OF THE RARE CASES WHEN THE SUPREME COURT RULES IN FAVOR OF THE EMPLOYER.

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SUBECT: WHAT IS CONSTRUCTIVE DISMISSAL?

IT IS QUITTING BECAUSE CONTINUED EMPLOYMENT IS RENDERED IMPOSSIBLE, UNREASONABLE OR UNLIKELY OR BECAUSE OF A DEMOTION IN RANK OR A DIMINUTION OF PAY.

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SUBJECT: WHEN DOES CONSTRUCTIVE DISMISSAL EXISTS?

IT EXISTS WHEN THERE IS A CLEAR ACT OF DISCRIMINATION, INSENSIBILITY OR DISDAIN BY AN EMPLOYER WHICH BECOMES UNBEARABLE FOR THE EMPLOYEE TO CONTINUE HIS EMPLOYMENT.

Constructive dismissal is quitting because continued employment is rendered impossible, unreasonable or unlikely, or because of a demotion in rank or a diminution of pay.  It exists when there is a clear act of discrimination, insensibility or disdain by an employer which becomes unbearable for the employee to continue his employment.^[1][32]  Petitioner alleges that the real purpose of his transfer is to demote him to the rank of an instructor from being the Head for Education performing administrative functions.  Petitioner further argues that his re-assignment will entail an indirect reduction of his salary or diminution of pay considering that no additional allowance will be given to cover for board and lodging expenses.  He claims that such additional allowance was given in the past and therefore cannot be discontinued and withdrawn without violating the prohibition against non-diminution of benefits.

These allegations are bereft of merit.

Petitioner was originally appointed as instructor in 1991 and was given additional administrative functions as Head for Education during his stint in Laoag branch.  He did not deny having been designated as Head for Education in a temporary capacity for which he cannot invoke any tenurial security.  Hence, being temporary in character, such designation is terminable at the pleasure of respondents who made such appointment.^[2][33] Moreover, respondents’ right to transfer petitioner rests not only on contractual stipulation but also on jurisprudential authorities.  The Labor Arbiter and the NLRC both relied on the condition laid down in petitioner’s employment contract that respondents have the prerogative to assign petitioner in any of its branches or tie-up schools as the necessity demands.  In any event, it is management prerogative for employers to transfer employees on just and valid grounds such as genuine business necessity.^[3][34]  It is also important to stress at this point that respondents have shown that it was experiencing some financial constraints.  Because of this, respondents opted to temporarily suspend the post-graduate studies of petitioner and some other employees who were given scholarship grants in order to prioritize more important expenditures.^[4][35]

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SUBJECT: WHAT IS THE RULE ON DIMINUTION OF BENEFITS?

ANY BENEFIT  AND PERKS BEING ENJOYED BY EMPLOYEES CANNOT BE REDUCED AND DISCONTINUED, OTHERWISE, THE CONSTITUTIONAL MANDATE TO AFFORD FULL PROTECTION TO LABOR SHALL BE OFFENDED.

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SUBJECT: WHEN DOES THE RULE AGAINST DIMINUTION OF BENEFITS APPLY?

ONLY IF THE GRANT OR BENEFIT IS FOUNDED ON AN EXPRESS POLICY OR HAS RIPENED INTO A PRACTICE OVER A LONG PERIOD WHICH IS CONSISTENT AND DELIBERATE.

The Court agrees with the Labor Arbiter that there was no violation of the prohibition on diminution of benefits.  Indeed, any benefit and perks being enjoyed by employees cannot be reduced and discontinued, otherwise, the constitutional mandate to afford full protection to labor shall be offended.^[5][37]  But the rule against diminution of benefits is applicable only if the grant or benefit is founded on an express policy or has ripened into a practice over a long period which is consistent and deliberate.^[6][38]

                Please be informed that during your assignment at our tie-up at UNP-VIGAN, ILOCOS SUR , you will be receiving a monthly Board and Lodging of Pesos: One Thousand Two Hundred x x x (P1,200.00).

However, you are only entitled to such allowance, if you are assigned to the said tie-up and the same will be changed or forfeited depending upon the place of your next reassignment.^[7][39] (Italics supplied.)

. . . . . . .

Petitioner failed to present any other evidence that respondents committed to provide the additional allowance or that they were consistently granting such benefit as to have ripened into a practice which cannot be peremptorily withdrawn.  Moreover, there is no conclusive proof that petitioner’s basic salary will be reduced as it was not shown that such allowance is part of petitioner’s basic salary.  Hence, there will be no violation of the rule against diminution of pay enunciated under Article 100 of the Labor Code.^[8][40]

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SUBJECT: WHAT ARE THE THREE MATERIAL DATES WHICH SHOULD BE STATED IN THE PETITION FOR REVIEW ON CERTIORARI UNDER RULE 65?

THE  DATES WHEN THE NOTICE  OF THE JUDGMENT WAS RECEIVED, WHEN A MOTION FOR RECONSIDERATION WAS FILED AND WHEN THE NOTICE OF THE DENIAL OF THE MOTION FOR RECONSIDERATION WAS RECEIVED.^[9][26]  THESE DATES SHOULD BE REFLECTED IN THE PETITION TO ENABLE THE REVIEWING COURT TO DETERMINE IF THE PETITION WAS FILED ON TIME.

The three material dates which should be stated in the petition for certiorari under Rule 65 are the dates when the notice of the judgment was received, when a motion for reconsideration was filed and when the notice of the denial of the motion for reconsideration was received.^[10][26]  These dates should be reflected in the petition to enable the reviewing court to determine if the petition was filed on time.^[11][27]  Indeed, petitioner’s petition before the CA stated only the date of his receipt of the NLRC’s Resolution denying his motion for partial reconsideration.  It failed to state when petitioner received the assailed NLRC Decision and when he filed his partial motion for reconsideration.  However, this omission is not at all fatal because these material dates are reflected in petitioner’s Partial Motion for Reconsideration attached as Annex “N” of the petition.  In Acaylar, Jr. v. Harayo,^[12][28] we held that failure to state these two dates in the petition may be excused if the same are evident from the records of the case.  It was further ruled by this Court that the more important material date which must be duly alleged in the petition is the date of receipt of the resolution of denial of the motion for reconsideration. In the case at bar, petitioner has duly complied with this rule.

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SUBJECT:  SUPPOSE YOU FAIL TO ATTACH AN AFFIDAVIT OF SERVICE, WHAT should you do?

submit it immediately before ca dismisses your petition.

Next, the CA dismissed the petition for failure to attach an affidavit of service.  However, records show that petitioner timely rectified this omission by submitting the required affidavit of service even before the CA dismissed his petition.

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SUBJECT: WHAT IS THE RULE ON WHAT DOCUMENTS TO ATTACH TO A CERTIORARI PETITION UNDER RULE 65?

THE RULES DO NOT SPECIFY THE DOCUMENTS WHICH SHOULD BE APPENDED TO THE PETITION EXCEPT THAT THEY SHOULD BE RELEVANT TO THE JUDGMENT, FINAL ORDER OR RESOLUTION BEING ASSAILED.

Thirdly, petitioner’s failure to attach respondent’s motion for reconsideration to the assailed NLRC decision is not sufficient ground for the CA to outrightly dismiss his petition.  The issue that was raised in respondents’ motion for reconsideration is the propriety of the NLRC’s grant of overload honorarium in favor of petitioner.  This particular issue was not at all raised in petitioner’s petition for certiorari with the CA, therefore, there is no need for petitioner to append a copy of this motion to his petition.  Besides, as already mentioned, the denial of respondents’ motion for reconsideration has been assailed by respondents before the CA docketed as CA-G.R. SP No. 94205.  At any rate, the Rules do not specify the documents which should be appended  to the petition except that they should be relevant to the judgment, final order or resolution being assailed.  Petitioner is thus justified in attaching the documents which he believed are sufficient to make out a prima facie case.^[13][29]

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SUBJECT: STATE THE RULE ON THE LIBERAL INTERPRETATION OF THE RULES OF PROCEDURE?

The Court has time and again upheld the theory that the rules of procedure are designed to secure and not to override substantial justice.^[14][30]  These are mere tools to expedite the decision or resolution of cases, hence, their strict and rigid application which would result in technicalities that tend to frustrate rather than promote substantial justice must be avoided.^[15][31]  The CA thus should not have outrightly dismissed petitioner’s petition based on these procedural lapses.

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Republic of thePhilippines

Supreme Court

Manila

FIRST DIVISION

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D E C I S I O N

DEL CASTILLO, J.:

            Our labor laws are enacted not solely for the purpose of protecting the working class but also the management by equally recognizing its right to conduct its own legitimate business affairs.

            This Petition for Review on Certiorari^[17][2] seeks the reversal of the Resolutions dated May 15, 2006^[18][3] and August 4, 2006^[19][4] of the Court of Appeals (CA) in CA-G.R. SP No. 93991, which dismissed petitioner William Endeliseo Barroga’s Petition for Certiorari for procedural infirmities, as well as the Decision^[20][5] dated August 25, 2005 and Resolution^[21][6] dated January 31, 2006 of the National Labor Relations Commission (NLRC), with respect to the dismissal of petitioner’s claim of constructive dismissal against respondents Data Center College of the Philippines and its President and General Manager, Wilfred Bactad.

Factual Antecedents

            On November 11, 1991, petitioner was employed as an Instructor in DataCenterCollegeLaoagCitybranch in Ilocos Norte.  In a Memorandum^[22][7] dated June 6, 1992, respondents transferred him to University of Northern Philippines (UNP) in Vigan, Ilocos Sur where the school had a tie-up program.  Petitioner was informed through a letter^[23][8] dated June 6, 1992 that he would be receiving, in addition to his monthly salary, a P1,200.00 allowance for board and lodging during his stint as instructor in UNP-Vigan.  In 1994, he was recalled to Laoag campus. On October 3, 2003, petitioner received a Memorandum^[24][9] transferring him to Data Center College Bangued, Abra branch as Head for Education/Instructor due to an urgent need for an experienced officer and computer instructor thereat.

            However, petitioner declined to accept his transfer to Abra citing the deteriorating health condition of his father and the absence of additional remuneration to defray expenses for board and lodging which constitutes implicit diminution of his salary.^[25][10]

            On November 10, 2003, petitioner filed a Complaint^[26][11] for constructive dismissal against respondents.  Petitioner alleged that his proposed transfer to Abra constitutes a demotion in rank and diminution in pay and would cause personal inconvenience and hardship.  He argued that although he was being transferred to Abra branch supposedly with the same position he was then holding in Laoag branch as Head for Education, he later learned through a Memorandum^[27][12] from the administrator of Abra branch that he will be re-assigned merely as an instructor, thereby relegating him from an administrative officer to a rank-and-file employee.  Moreover, the elimination of his allowance for board and lodging will result to an indirect reduction of his salary which is prohibited by labor laws.  Petitioner also claimed that when he questioned the indefinite suspension of the scholarship for post-graduate studies extended to him by respondents,^[28][13] the latter became indifferent to his legitimate grievances which eventually led to his prejudicial re-assignment.  He averred that his transfer is not indispensable to the school’s operation considering that respondents even suggested that he take an indefinite leave of absence in the meantime if only to address his personal difficulties.^[29][14]  Petitioner thus prayed for his reinstatement and backwages.  Further, as Head for Education at Data Center College Laoag branch, petitioner asked for the payment of an overload honorarium as compensation for the additional teaching load in excess of what should have been prescribed to him.  Exemplary damages and attorney’s fees were likewise prayed for. 

            For their part, respondents claimed that they were merely exercising their management prerogative to transfer employees for the purpose of advancing the school’s interests.  They argued that petitioner’s refusal to be transferred to Abra constitutes insubordination. They claimed that petitioner’s appointment as instructor carries a proviso of possible re-assignments to any branch or tie-up schools as the school’s necessity demands.  Respondents argued that petitioner’s designation as Head for Education in Laoag branch was merely temporary and that he would still occupy his original plantilla item as instructor at his proposed assignment in Abra branch.  Respondents denied liability to petitioner’s monetary claims.

Ruling of the Labor Arbiter

            On September 24, 2004, the Labor Arbiter rendered a Decision^[30][15] dismissing the Complaint for lack of merit.  The Labor Arbiter ruled that there was no demotion in rank as petitioner’s original appointment as instructor on November 11, 1991 conferred upon respondents the right to transfer him to any of the school’s branches and that petitioner’s designation as Head for Education can be withdrawn anytime since he held such administrative position in a non-permanent capacity.  The Labor Arbiter held that the exclusion of his allowance for board, lodging and transportation was not constructive dismissal, enunciating that the concept of non-diminution of benefits under Article 100 of the Labor Code prohibits the elimination of benefits that are presently paid to workers to satisfy the requirements of prevailing minimum wage rates.  Since the benefit claimed by petitioner is beyond the coverage of the minimum wage law, its non-inclusion in his re-assignment is not considered a violation.  The Labor Arbiter also denied petitioner’s claim for overload honorarium for failure to present sufficient evidence to warrant entitlement to the same.  The claim for damages was likewise denied.

Ruling of the National Labor Relations Commission

            In a Decision^[31][16] dated August 25, 2005, the NLRC affirmed the findings of the Labor Arbiter that there was no constructive dismissal.  It ruled that the management decision to transfer petitioner was well within the rights of respondents in consonance with petitioner’s contract of employment and which was not sufficiently shown to have been exercised arbitrarily by respondents.  It agreed with the Labor Arbiter that petitioner’s designation as Head for Education was temporary for which he could not invoke any tenurial security.  Further, the NLRC held that it was not proven with certainty that the transfer would unduly prejudice petitioner’s financial situation.  The NLRC, however, found petitioner to be entitled to overload honorarium pursuant to CHED Memorandum Order No. 25 for having assumed the position of Head for Education, albeit on a temporary basis.  The NLRC disposed of the case as follows:

                WHEREFORE, premises considered, the decision under review is hereby MODIFIED by ordering the respondent Data Center College of the Philippines, to pay the complainant the sum of SEVENTY THREE THOUSAND SEVEN THUNDRED [sic] THIRTY and 39/100 Pesos (P73,730.39), representing overload honorarium.

                All other claims are DISMISSED for lack of merit.

                SO ORDERED.^[32][17]       

            From this Decision, both parties filed their respective motion for partial reconsideration.  Petitioner assailed the NLRC Decision insofar as it dismissed his claims for reinstatement, backwages, damages and attorney’s fees.^[33][18]  Respondents, for their part, questioned the NLRC’s award of overload honorarium in favor of petitioner.  These motions were denied by the NLRC in a Resolution dated January 31, 2006.^[34][19]

Ruling of the Court of Appeals

            Both parties filed petitions for certiorari before the CA.  Respondents’ petition for certiorari was docketed as CA-G.R. SP No. 94205, which is not subject of the instant review.  On the other hand, petitioner filed on April 7, 2006, a Petition for Certiorari^[35][20] with the CA docketed as CA-G.R. SP No. 93991 assailing the NLRC’s finding that no constructive dismissal existed.  Realizing his failure to attach the requisite affidavit of service of the petition upon respondents, petitioner filed on April 27, 2006, an Ex-Parte Manifestation and Motion^[36][21] to admit the attached affidavit of service and registry receipt in compliance with the rules. 

            On May 15, 2006, the CA dismissed the petition in CA-G.R. SP No. 93991 in a Resolution which reads:

                Petition is DISMISSED outright due to the following infirmities:

1.              there is no statement of material dates as to when the petitioner received the assailed decision dated August 25, 2005 and when he filed a Motion for Reconsideration thereof;

2.              there is no affidavit of service attached to the petition;

3.              these initiatory pleadings and the respondents’ Motion for Reconsideration of the Decision dated August 25, 2005 are not attached to the petition.

SO ORDERED. ^[37][22]

            Petitioner filed a Motion for Reconsideration^[38][23] alleging that the material dates of receipt of the NLRC Decision and the filing of his motion for reconsideration are explicitly stated in his Partial Motion for Reconsideration which was attached as an annex to the petition and was made an integral part thereof.  As to the absence of the affidavit of service, petitioner argued that there is no legal impediment for the belated admission of the affidavit of service as it was duly filed before the dismissal of the petition.  As for his failure to attach respondents’ motion for reconsideration, petitioner manifested that a separate petition for certiorari has been filed by respondents and is pending with the CA, docketed as CA-G.R. SP No. 94205, where the denial of said motion is at issue.

            OnAugust 4, 2006, the CA issued the following Resolution:

                Due to non-compliance despite opportunity afforded to comply, petitioner’s  June 9, 2006  Motion  for  Reconsideration  is  hereby  DENIED  for lack of merit.

SO ORDERED.^[39][24]

Issues

Hence, this petition assigning the following errors:

THE HONORABLE COURT OF APPEALS PATENTLY COMMITTED REVERSIBLE ERROR IN DISMISSING THE PETITION FOR CERTIORARI [UNDER RULE 65] OF THE PETITIONER BY GIVING PRECEDENT TO TECHNICALITIES RATHER THAN THE MERITORIOUS GROUNDS ASSERTED THEREIN.

THE PUBLIC RESPONDENT, NATIONAL LABOR RELATIONS COMMISSION, SERIOUSLY ERRED IN ITS CONSLUSIONS OF LAW IN RENDERING IT[S] ASSAILED DECISION AND RESOLUTION STATING THAT THE PETITIONER WAS NOT CONSTRUCTIVELY DISMISSED, THUS, NOT ENTITLED TO REINSTATEMENT, BACKWAGES, AND ATTORNEY’S FEES.^[40][25]

Petitioner imputes grave abuse of discretion on the CA in not giving due course to his petition despite substantial compliance with the requisite formalities as well as on the NLRC in not ruling that he was constructively dismissed by respondents.

Our Ruling

Petitioner’s substantial compliance calls for the relaxation of the rules. Therefore, the CA should have given due course to the petition.

The three material dates which should be stated in the petition for certiorari under Rule 65 are the dates when the notice of the judgment was received, when a motion for reconsideration was filed and when the notice of the denial of the motion for reconsideration was received.^[41][26]  These dates should be reflected in the petition to enable the reviewing court to determine if the petition was filed on time.^[42][27]  Indeed, petitioner’s petition before the CA stated only the date of his receipt of the NLRC’s Resolution denying his motion for partial reconsideration.  It failed to state when petitioner received the assailed NLRC Decision and when he filed his partial motion for reconsideration.  However, this omission is not at all fatal because these material dates are reflected in petitioner’s Partial Motion for Reconsideration attached as Annex “N” of the petition.  In Acaylar, Jr. v. Harayo,^[43][28] we held that failure to state these two dates in the petition may be excused if the same are evident from the records of the case.  It was further ruled by this Court that the more important material date which must be duly alleged in the petition is the date of receipt of the resolution of denial of the motion for reconsideration. In the case at bar, petitioner has duly complied with this rule.

Next, the CA dismissed the petition for failure to attach an affidavit of service.  However, records show that petitioner timely rectified this omission by submitting the required affidavit of service even before the CA dismissed his petition.

Thirdly, petitioner’s failure to attach respondent’s motion for reconsideration to the assailed NLRC decision is not sufficient ground for the CA to outrightly dismiss his petition.  The issue that was raised in respondents’ motion for reconsideration is the propriety of the NLRC’s grant of overload honorarium in favor of petitioner.  This particular issue was not at all raised in petitioner’s petition for certiorari with the CA, therefore, there is no need for petitioner to append a copy of this motion to his petition.  Besides, as already mentioned, the denial of respondents’ motion for reconsideration has been assailed by respondents before the CA docketed as CA-G.R. SP No. 94205.  At any rate, the Rules do not specify the documents which should be appended to the petition except that they should be relevant to the judgment, final order or resolution being assailed.  Petitioner is thus justified in attaching the documents which he believed are sufficient to make out a prima facie case.^[44][29]

The Court has time and again upheld the theory that the rules of procedure are designed to secure and not to override substantial justice.^[45][30]  These are mere tools to expedite the decision or resolution of cases, hence, their strict and rigid application which would result in technicalities that tend to frustrate rather than promote substantial justice must be avoided.^[46][31]  The CA thus should not have outrightly dismissed petitioner’s petition based on these procedural lapses.

Petitioner’s transfer is not tantamount to constructive dismissal.

            Nevertheless, the instant petition merits dismissal on substantial grounds.  After a careful review of the records and the arguments of the parties, we do not find any sufficient basis to conclude that petitioner’s re-assignment amounted to constructive dismissal.

            Constructive dismissal is quitting because continued employment is rendered impossible, unreasonable or unlikely, or because of a demotion in rank or a diminution of pay.  It exists when there is a clear act of discrimination, insensibility or disdain by an employer which becomes unbearable for the employee to continue his employment.^[47][32]  Petitioner alleges that the real purpose of his transfer is to demote him to the rank of an instructor from being the Head for Education performing administrative functions.  Petitioner further argues that his re-assignment will entail an indirect reduction of his salary or diminution of pay considering that no additional allowance will be given to cover for board and lodging expenses.  He claims that such additional allowance was given in the past and therefore cannot be discontinued and withdrawn without violating the prohibition against non-diminution of benefits.

            These allegations are bereft of merit.

            Petitioner was originally appointed as instructor in 1991 and was given additional administrative functions as Head for Education during his stint in Laoag branch.  He did not deny having been designated as Head for Education in a temporary capacity for which he cannot invoke any tenurial security.  Hence, being temporary in character, such designation is terminable at the pleasure of respondents who made such appointment.^[48][33] Moreover, respondents’ right to transfer petitioner rests not only on contractual stipulation but also on jurisprudential authorities.  The Labor Arbiter and the NLRC both relied on the condition laid down in petitioner’s employment contract that respondents have the prerogative to assign petitioner in any of its branches or tie-up schools as the necessity demands.  In any event, it is management prerogative for employers to transfer employees on just and valid grounds such as genuine business necessity.^[49][34]  It is also important to stress at this point that respondents have shown that it was experiencing some financial constraints.  Because of this, respondents opted to temporarily suspend the post-graduate studies of petitioner and some other employees who were given scholarship grants in order to prioritize more important expenditures.^[50][35]

Indeed, we cannot fully subscribe to petitioner’s contention that his re-assignment was tainted with bad faith.  As a matter of fact, respondents displayed commiseration over the health condition of petitioner’s father when they suggested that he take an indefinite leave of absence to attend to this personal difficulty.  Also, during the time when respondents directed all its administrative officers to submit courtesy resignations, petitioner’s letter of resignation was not accepted.^[51][36] This bolsters the fact that respondents never intended to get rid of petitioner.  In fine, petitioner’s assertions of bad faith on the part of respondents are purely unsubstantiated conjectures.

            The Court agrees with the Labor Arbiter that there was no violation of the prohibition on diminution of benefits.  Indeed, any benefit and perks being enjoyed by employees cannot be reduced and discontinued, otherwise, the constitutional mandate to afford full protection to labor shall be offended.^[52][37]  But the rule against diminution of benefits is applicable only if the grant or benefit is founded on an express policy or has ripened into a practice over a long period which is consistent and deliberate.^[53][38]

           Petitioner was granted a monthly allowance for board and lodging during his stint as instructor in UNP-Vigan,  Ilocos Sur as evinced in a letter dated June 6,

1992 with the condition stated in the following tenor:

                Please be informed that during your assignment at our tie-up at UNP-VIGAN, ILOCOS SUR , you will be receiving a monthly Board and Lodging of Pesos: One Thousand Two Hundred x x x (P1,200.00).

However, you are only entitled to such allowance, if you are assigned to the said tie-up and the same will be changed or forfeited depending upon the place of your next reassignment.^[54][39] (Italics supplied.)

            Petitioner failed to present any other evidence that respondents committed to provide the additional allowance or that they were consistently granting such benefit as to have ripened into a practice which cannot be peremptorily withdrawn.  Moreover, there is no conclusive proof that petitioner’s basic salary will be reduced as it was not shown that such allowance is part of petitioner’s basic salary.  Hence, there will be no violation of the rule against diminution of pay enunciated under Article 100 of the Labor Code.^[55][40]

            WHEREFORE, the Resolutions dated May 15, 2006 and August 4, 2006 of the Court of Appeals in CA-G.R. SP No. 93991 are SET ASIDE.  The Decision dated August 25, 2005 and Resolution dated January 31, 2006 of the National Labor Relations Commission in NLRC Case No. RAB I-12-1242-03 (LC) insofar as it found respondents Data Center College of the Philippines and Wilfred Bactad not liable for constructive dismissal, are AFFIRMED.

            SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

Chairperson

MARTIN S. VILLARAMA, JR.

Associate Justice

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

            Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified 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