G.R. No. 187323. June 23, 2021
INTER-ISLAND INFORMATION SYSTEMS, INC., REPRESENTED BY JESSE TAN TING, PETITIONER, VS. COURT OF APPEALS, ELEVENTH DIVISION (FORMER TENTH DIVISION) AND CHAM Q. IBAY, RESPONDENT.
HERNANDO, J.:
Resolutions of the Court of Appeals (CA) in CA-G.R. SP No. 103148 which
dismissed petitioner Inter-Island Information Systems, Inc.
(Inter-Island) petition for certiorari for failing to comply with the CA’s June 27, 2008 Resolution[4]
directing it to furnish the appellate court the present and complete
address of both respondent Cham Q. Ibay (Ibay) and his counsel for the
purpose of sending court notices and processes.
The Antecedents
Inter-Island is an internet service provider which hired Ibay on
January 20, 2003 as a technical support in its Network Operations Center
(NOC). Into seven (7) months of his employment, Ibay received
Memorandum No. 03-08-08 dated August 20, 2003[5]
issued by a certain Scott Lam (Lam) informing him of his inclusion in
the Q Linux Schedule of Training. However, in a revised Memorandum No.
03-09-01 dated September 2, 2003[6]
signed by Lam, Ibay was delisted as one of the trainees. When Ibay
discussed his exclusion with Marianne Rosellon (Rosellon), NOC’s
Technical Head, Rosellon explained that he was delisted from the said
training due to the expiration of his contract as would be further
explained to him by the Human Resource Department.[7]
Two days later, Lam talked to Ibay over the phone urging the latter
to submit his resignation letter so that Jesse Tan Ting (Ting), the
Human Resource Manager, would not get angry at him. Lam further said
that in exchange for his submission of resignation letter, Inter-Island
would issue a Certificate of Employment which he could use as reference
for his application in other companies. Lam also threatened to block his
applications with other companies should he refuse to resign.[8]
On October 3, 2003, Ting allegedly summoned respondent to his office
and told him to submit his resignation letter. However, when respondent
refused, Ting told him “Kung ayaw na namin sa inyo ay wala kayong magagawa.”[9]
On October 31, 2003, respondent was allegedly prevented from entering
Inter-Island’s premises. Hence, respondent filed a complaint for illegal
dismissal.[10]
On the other hand, Inter-Island alleged that during respondent’s
tenure in the company, he incurred several infractions. He was
reprimanded for excessive use of company telephone as per Memorandum
dated March 18, 2003.[11] On
March 29, 2003, respondent tendered his resignation which was not
accepted by the company. Petitioner further averred that respondent’s
work continued to deteriorate until he abandoned his work. Respondent
was not terminated and was, in fact, ordered to return to work.[12]
Ruling of the Labor Arbiter (LA):
On July 29, 2005, the LA rendered a Decision[13]
reinstating Ibay to his former position with full payment of his
backwages which as of July 31, 2005 already amounted to P159,640.00. The
dispositive portion of the LA judgment reads:
WHEREFORE, all the foregoing premises being considered, judgment is
hereby rendered ordering the respondents to reinstate the complainant to
his former position and to pay his full backwages which as of July 31,
2005 already amount to P159,640.00.SO ORDERED.[14]
The LA found respondent’s assertion of facts to be more credible than
petitioner’s. The fact that there was a scheduled training in 2003
which included respondent was fully substantiated. However, petitioner
failed to justify why respondent was delisted from joining the training.
Moreover, although petitioner claimed that it ordered respondent to
return to work, the company had not seen fit to notify respondent of its
return-to-work order. Hence, the LA ruled in favor of respondent and
ordered his reinstatement with full backwages.[15]
Ruling of the National Labor
Relations Commission (NLRC):
On October 31, 2007, the NLRC dismissed the company’s appeal for lack of merit and affirmed the LA’s July 29, 2005 Decision,[16] to wit:
WHEREFORE, premises considered, the appeal is DISMISSED
for lack of merit, and the Decision of Labor Arbiter Jose G. De Vera
dated July 29, 2005 is hereby AFFIRMED.SO ORDERED.[17]
The NLRC ruled that respondent was illegally dismissed. His filing of
the complaint barely seven days after he was allegedly dismissed showed
his intention not to sever the employer-employee relationship. His
failure to report to work was justified as he was prevented from
entering Inter-Island’s premises. His subsequent filing of a complaint
for illegal dismissal belied any suggestion that he was abandoning his
work.[18]
Moreover, respondent’s refusal to return to work after the filing of
the complaint was justified. The offer to return to work was belatedly
made by petitioner’s counsel in the company’s position paper and
verbally during the mandatory conference without any written document
signed by any company representative. Also, the offer was premised on
the respondent’s alleged abandonment.[19]
The NLRC further ruled that the lack of a notice of termination does not per se
prove that there was no actual dismissal. In this case, respondent was
repeatedly asked to submit a letter of resignation which implied that no
notice of termination was ever issued. Petitioner failed to comply with
the substantive and procedural requirements of due process to further
refute respondent’s claim for illegal dismissal.[20]
Petitioner Inter-Island’s motion for reconsideration was denied by the NLRC in its January 30, 2008 Resolution.[21]
Ruling of the Court of Appeals:
Hence, petitioner filed a petition for certiorari before the CA. On April 30, 2008, the appellate court issued a Resolution[22]
directing Ibay to file a comment within ten (10) days from receipt.
However, the Resolution sent to Ibay’s counsel was returned unserved.[23]
On June 27, 2008, the CA issued a Resolution[24]
directing petitioner to furnish the court within ten (10) days from
notice the present and complete address of both respondent Ibay and his
counsel. However, petitioner Inter Island failed to comply.[25]
Thus, on September 12, 2008, the CA rendered its assailed Resolution[26]
dismissing the petition for failure of petitioner to comply with its
June 27, 2008 Resolution pursuant to Section 3, Rule 17 of the Rules of
Court.
A motion for reconsideration was filed by petitioner which was denied by the CAin its February 6, 2009 Resolution.[27]
Hence, this petition for certiorari under Rule 65.
Issue
The sole issue raised for resolution of this Court is:
Whether or not the appellate court committed grave abuse of
discretion amounting to lack or in excess of jurisdiction in dismissing
the petition for certiorari due to petitioner’s failure to comply with
the CA’s June 27, 2008 Resolution directing petitioner to furnish the
appellate court with the complete address of both respondent Ibay and
his counsel as per Section 3, Rule 17 of the Rules of Court.[28]
Petitioner argues that lawyers are obliged to adopt a system whereby
they can receive judicial notices and to notify the court in case of
changes in their address. Petitioners maintain that Ibay and his counsel
failed to notify the NLRC or the LA of their new address. Petitioner’s
counsel exerted effort to comply with the directive of the appellate
court but to no avail. Petitioner argues that the failure of respondent
and his counsel to notify the court oftheir new address should not be
taken against them for it is the duty of the opposing counsel to inform
the court of any change in his or her address.[29]
Petitioner maintains that respondent Ibay abandoned his work and was
not illegally dismissed. His exclusion from the training schedule in
2003 was not an indication that he was being dismissed. Ibay seriously
violated the rules and regulations of the company due to his unexplained
absences on several occasions which constituted abandonment. He
intentionally abandoned his work and left to work abroad during the
conciliation conference and prior to the filing of his position paper
before the LA.[30]
Petitioner insists that it had no intention to terminate the services
of respondent Ibay. During the mandatory conference on January 12,
2004, the company ordered Ibay to report back to work. This offer was
reiterated in petitioner’s position paper dated February 5, 2004 and in
its Rejoinder dated May 12, 2004. However, respondent did not comply
with the said orders[31].
Petitioner claims that respondent did not report back despite
several directives because he was about to leave for Macau, China in
January 2004 which had been processed since November 2003. He had all
the intention to abandon his work as manifested by his overt acts.[32]
On the other hand, respondent Ibay failed to file a comment on the petition. In a December 1, 2010 Resolution,[33]
the Court required Ibay to show cause why he should not be held in
contempt for such failure and to comply with the directive to file
comment. On June 1, 2011, respondent lbay was fined P1,000 for failure
to comply with the show cause Resolution dated December 1, 2010.[34]
In a March 12, 2012 Resolution,[35]
the Court declared respondent guilty of contempt of court and ordered
his arrest. However, he was not found in his stated address. On November
12, 2012, the Court resolved[36]
to require the Integrated Bar of the Philippines (IBP) to submit the
current and complete address of Atty. David D. Erro (Atty. Erro),
respondent Ibay’s counsel of record. On January 11, 2013, the IBP
informed the Court of Atty. Erro’s complete and current address.[37] However, despite resending the notices and resolutions to Atty. Erro’s address, the latter failed to comply.
On October 16, 2018, Atty. Jobert I. Pahilga (Atty. Pahilga) of Erro Pahilga Law Offices filed before this Court a Compliance with Notice of New Address and Motion.[38]
He reasoned that Atty. Erro formed the Erro Pahilga Law Offices
together with him as partner. Atty. Erro is presently the undersecretary
of the Department of Agrarian Reform (DAR) and that his position forced
him to go on leave from the law offices.
On March 6, 2020, respondent Ibay, through his counsel Atty. Pahilga, filed a Manifestation and Comment/Opposition to the Petition with Notice of New Address.[39] He argues that petitioner availed of the wrong remedy when it filed a petition for certiorari under Rule 65. He alleges that a petition for certiorari
under Rule 65 is available only when the court or quasi-judicial body
acted with grave abuse of discretion and that there is no plain, speedy,
and adequate remedy in the ordinary course of law. In this case,
respondent maintains that the appellate court did not commit grave abuse
of discretion and that petitioner had plain, speedy and adequate remedy
which is a petition for review on certiorari under Rule 45.[40]
Respondent claims that petitioner filed the instant petition under Rule
65 because the period to file the petition for review under Rule 45,
which is 15 days from receipt of the challenged decision or resolution,
had already lapsed. Respondent notes that petitioner received the
February 6, 2009 Resolution of the CA on February 16, 2009. However, it
filed its petition for certiorari under Rule 65 only on April 21,
2009 or 64 days after receipt by its counsel of the assailed CA
Resolution. Thus, petitioner lost its right to appeal. A certiorari under Rule 65 is not a remedy or substitute for a lost appeal. Nonetheless, even assuming that petitioner could avail of the certiorari
under Rule 65, the same was filed out of time as it was filed 64 days
from receipt of the February 6, 2009 Resolution, clearly beyond the
60-day period within which to file the petition.[41]
Moreover, respondent contends that the CA correctly dismissed the
petition when the petitioner failed to comply with the September 12,
2008 Resolution of theCA to furnish the court of the present and
complete address of the respondent and his counsel. The dismissal of the
petition was due to the neglect and absolute non-compliance for an
unreasonable length of time by the petitioner with the order or
resolution of the CA.
Finally, respondent claims that a thorough reading of the instant
petition would readily show that it is a mere rehash of the arguments
which were already passed upon by the NLRC.
Our Ruling
After due consideration, we resolve to dismiss the petition.
Wrong mode of appeal.
Section 1 of Rule 45 provides that when a party desires to appeal by certiorari
from a judgment, final order or resolution of the CA, he or she may
file with the Supreme Court a verified petition for review on certiorari
which shall raise only questions oflaw. Clearly, the assailed September
12, 2008 and February 6, 2009 Resolutions of the appellate court may be
elevated to this Court via a petition for review on certiorari under Rule 45 on pure questions of law. However, as can be gleaned from the records, the petitioner availed of a petition for certiorari under Rule 65 instead. It is settled that an extraordinary remedy of certiorari will not lie if there is a plain, speedy, and adequate remedy in the ordinary course of law,[42] as in this case. Petitioner should have availed of a petition for review on certiorari under Rule 45 and not a petition for certiorari
under Rule 65 as its petition was dismissed by the appellate court
based on Section 3 of Rule 117 which is an adjudication on the merits
and not merely an interlocutory order.
Nonetheless, it must be clarified that for purposes of discussion,
the petition was filed within the 60-day reglementary period under Rule
65, contrary to the contention of the respondent that it was filed out
of time or 64 days from receipt of the CA’s February 6, 2009 Resolution
on February 16, 2009. The records clearly show that the petition for certiorari under Rule 65 was filed on April 16, 2009 which is within the 60-day reglementary period to file a petition.
Despite the foregoing, We are inclined to dismiss the petition. The
right to appeal is a mere statutory privilege and must be exercised only
in the manner and in accordance with the provisions of law.[43]
The perfection of an appeal in the manner and within the period
prescribed by law is not only mandatory but also jurisdictional and
failure of the party to conform to the rules regarding appeal will
render the judgment final and executory.[44]
Although we have applied a liberal application of the rules of
procedure in a number of cases, this can be invoked only in proper cases
and under justifiable causes and circumstances.[45]
Petitioner failed to cite any reasonable cause to justify
non-compliance with the rules for its availment of a wrong remedy. In
fact, it resorted to a wrong mode of appeal by filing a petition for certiorari
under Rule 65 instead of a petition for review on certiorari under Rule
45. Whatever may be the reason for taking such option, the petitioner
failed to apprise this Court. Its petition, invoking grave abuse of
discretion on the appellate court, unmistakably confirms that it
intended to file a petition for certiorari under Rule 65 to assail the September 12, 2008 and February 6, 2009 Resolutions. However, one cannot simply substitute certiorari under Rule 65 for a lost remedy of appeal as they are mutually exclusive and not alternative or successive.
No abandonment on the part of Ibay; he was illegally dismissed
by the company.
Even granting that petitioner availed of the correct remedy and that
the same was filed within the reglementary period, the petition still
warrants its dismissal. Although the appellate court’s September 12,
2008 and February 6, 2009 Resolutions did not delve on the issue of
respondent Ibay’s illegal dismissal, we deem it necessary to completely
resolve and settle this issue considering the duty of the Court to
consider and give due regard to everything on record relevant and
material to the resolution of the issues presented. As can be gleaned
from the records, respondent Ibay did not abandon his work in
Inter-Island as in fact he immediately filed a complaint for illegal
dismissal after he was prevented from entering the company premises.
This only proves that respondent Ibay had no intention to sever his
employer-employee relationship with Inter-Island.
The contention that Ibay had applied to work abroad is not supported
by evidence on record. Even if the same is true, Ibay’s intent to earn a
living during the pendency of the labor case should not be taken
against him. Besides, even if he indeed applied for a new job abroad in
November 2003, petitioner’s illegal dismissal of respondent Ibay and the
latter’s subsequent filing of a complaint were fait accompli,
having already been accomplished in October 2003 or way before
respondent Ibay’s alleged application for work abroad.This cannot erase
the fact that the company illegally dismissed its employee without just
and authorized cause and prevented the latter from entering the company
premises.
Further, petitioner’s contention that it issued several
return-to-work orders is without any factual basis. Petitioner’s
allegation that it ordered its worker to return to work during the
mandatory conference on January 12, 2004, as reiterated in its position
paper dated February 5, 2004 and in its Rejoinder dated May 12, 2004,
were substantially refuted by Ibay who claimed non-receipt of
petitioner’s written notice to return to work.
As a final note, the obstinate failure of respondent lbay and his
counsel of record before the LA and the NLRC, Atty. Erro, to comply with
the appellate court and this Court’s numerous directives has not
escaped Our notice. While it is true that Ibay’s cause was ultimately
proven to be meritorious, this fact does not excuse nor justify Ibay’s
or Atty. Erro’s repeated failure to comply with the orders of the Court.
In fact, this case has dragged on for 11 years since the filing of the
petition for certiorari under Rule 65 before this Court in 2009
due to the mere fact that Atty. Erro could not be located to be served
the notices of this Court. Even respondent Ibay was not found in his
address on record during the service of the warrant of arrest for
contempt.
Although we recognize Atty. Erro’s appointment as undersecretary of
DAR during the pendency of this case and his inability to continue
private law practice because of conflict of interest, this does not
excuse him from complying with his responsibility to update the Court
and the IBP of his current and complete address and to his clients.
Clearly, petitioner cannot be faulted when it relied on the information
of Atty. Erro’s address as stated in his pleadings filed before the LA
and NLRC. His failure to withdraw as counsel of record of respondent
lbay in this case or even the proper tum-over of the same to his partner
Atty. Pahilga undoubtedly shows negligence on his part.
As a consequence, this Court imposes upon Atty. Erro an additional
P5,000 for his non-compliance with this Court’s June 10, 2009 Resolution
and the other Resolutions subsequent thereto. On the other hand,
respondent Ibay’s lack of enthusiasm towards the outcome of this case
for his failure to inform the court of his counsel of record’s
incapability to represent him warrants the imposition as well of a fine
of P5,000.
WHEREFORE, the petition is DISMISSED. The September 12, 2008 and February 6, 2009 Resolutions of the Court of Appeals in CA-G.R. SP No. 103148 are hereby AFFIRMED.
Respondent Cham Q. Ibay and Atty. David D. Erro are ORDERED
to PAY within five (5) days from receipt of this Decision an additional
fine of P5,000.00 each for their repeated failure to heed the
directives of this Court and are STERNLY WARNED that a repetition of the same or similar act will be dealt with more severely.
SO ORDERED.
Leonen, J., on wellness leave.
Inting, Delos Santos and Lopez, JJ., concur.
[*] On Wellness Leave.
[1] Rollo, pp. 3-19.
[2] CA rollo, at
124-125; penned by Associate Justice Vicente S.E. Ve1oso and concurred
in by Associate Justices Rebecca De Guia-Salvador and Ricardo R. Rosario
(now a Member of this Court).
[3] Id. at 134.
[4] Id. at 122.
[5] Id. at 48.
[6] Id. at 49.
[7] Id. at 29.
[8] Id.
[9] Id.
[10] Id. at 26.
[11] Id. at 76.
[12] Id. at 73.
[13] Rollo, pp. 25-28.
[14] Id. at 28.
[15] Id. at 27-28.
[16] CA rollo, pp. 15-21.
[17] Id. at 21.
[18] Id. at 18-19.
[19] Id. at 19.
[20] Id. at 19-20.
[21] Id. at 22-23.
[22] Id. at 119.
[23] Id. at 125.
[24] Supra note 4.
[25] CA rollo, p. 125.
[26] Supra note 2.
[27] Supra note 3.
[28] Rollo, p. 11.
[29] Id. at 11-13.
[30] Id. at 13-15.
[31] Id. at 14.
[32] Id. at 14-15.
[33] Id. at 192.
[34] Id. at 193.
[35] Id. at 203-204.
[36] Id. at 216.
[37] Id. at 218.
[38] Id. at 256-260.
[39] Id. not paginated.
[40] Id.
[41] Id.
[42] Republic v. Yang Chi Hao, 617 Phil. 422, 432 (2009).
[43] Nueva Ecija II Electric Cooperative, Inc. v. Mapagu, 805 Phil. 823 (2017).
[44] Land Bank of the Phils. v. Court of Appeals, 789 Phil. 577, 583 (2016) citing Land Bank of the Philippines v. Court of Appeals, 663 Phil. 112 (2011) citing Zamboanga Forest Managers Corp. v. New Pacific Timber and Supply Co., 647 Phil. 403 (2010).
[45] Id., citing Building Care Corporation/Leopard Security & Investigation Agency v. Macaraeg, 700 Phil. 749 (2012).