ROLANDO ROXAS SURVEYING COMPANY, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION AND MATHEW LEONARDO, RESPONDENTS.

Labor Arbiter Fernando A.
Sambajon, in the complaint filed by private
respondent Mathew Leonardo against herein petitioner Rolando Roxas Surveying Co. with the Regional Office No. IV, Ministry of Labor, for illegal
dismissal, unpaid wages and unpaid per diems, rendered a decision on June 27,1979,
the dispositive portion of which reads:

“WHEREFORE, judgment is hereby rendered ordering respondent to
reinstate complainant to his former position with back salaries of P450.00
monthly, from October 1, 1976
up to the date of reinstatement without loss of seniority rights, and to pay to
complainant emergency allowance of P15.00 monthly for the period of his service
from March 1, 1976 to September 15, 1976.

“The claims of unpaid wages and per diems are denied for lack
of merit..

“SO ORDERED.” (p. 42, Rollo)

Petitioner appealed to respondent National Labor Relations
Commission (NLRC) which, on February 11, 1982, rendered judgment as follows:

“WHEREFORE, let the decision appealed from be MODIFIED in the
sense that the respondent is hereby ordered to pay the complainant two years backwages and one month separation pay subject to
computation by the Socio ­Economic Analyst of this Commission. The decision is affirmed in all other respects.

“SO ORDERED.” (p. 53, Rollo)

Upon denial of its motion for reconsideration, peti­tioner filed
with Us a petition for certiorari with prayer, among others, that
“the award of two (2) years backwages, be
deleted from the decision, if only to make it conform with the rulings laid
down by this Honorable Court as above-quoted.”

The facts of the case are stated in the decision of respondent
NLRC, as follows:

“A review of the record shows that the complainant applied for
and was accepted as surveyman by the respondent on
the strength of his 14 years of experience in survey work with the Bureau of
Lands; that on March 1, 1976, he started working as such surveyman
with seven men under him in Surigao del Sur; that in September 1976, he requested and was granted
15 days vacation leave; that after the expiration of his leave of absence, he
reported for work but was not allowed by the engineer of the cadastral survey
party unless the consent of the respondent had been obtained; that for this reason, he sent a telegram to the
respondent but received no reply so he proceeded to Manila and called up the respondent who told
him he could no longer return to his job because of the irregularities he had
com­mitted during his employment; that this created a misunderstanding between
the complainant and the respondent which resulted in the filing of charges and
counter-charges against each other.” (p. 50, Rollo)

Petitioner contends that
the reason for private respondent’s dismissal was his anomalous conduct while
working for the company – unauthorized collection of money from people whose
lands were being surveyed; that his continuance in the service, is patently
inimical to its interest, aside from the fact that his dishonesty is shown when
he did not disclose his conviction for malversation
of public funds, with the penalty of perpetual disquali­fication to hold
government office; that the finding and observation of respondent NLRC that
reinstatement of private respondent to his former position “would be
imprudent and impracticable” lead to the inevitable conclusion that he
should not be paid back wages. To do otherwise, it is argued, “would be
doing violence to the rule that conclusions made in the decision must be
consistent with the findings of facts.” (Memorandum for the petitioner, p.
111, Rollo).

Further, petitioner
points out that private respondent was employed merely for the cadastral survey
being conducted in Surigao del Sur and
that there was no fixed period for
said employment. Thus, the
company has the right to ter­minate private respondent at any time and even
without cause.

We find no merit in this
petition. In the first place, the claim that private respondent asked money
from people whose lands were being surveyed is not supported by evidence,
except the testimony of Engineer Eugenio Morales who,
however, did not confront the private respondent, much less, present the
persons from whom he allegedly demanded or received money.

With respect to the issue
that private respondent was only an apprentice and not a regular employee, petitioner relied on the letter, dated January 30,
1976, addressed to Engineer Morales, as follows:

“1-30-76

Engr. Jamison
or Morales

Cadastral Survey Party

Cad-5-37-D,
San Miguel Cadastre

San
Miguel, Surigao del Sur

The bearer is Mr. Mathew Leonardo also likes
to join our office and field force there in our project
operation. As alleged he knows transit work so with little office work so
please assess him and I’ll be the one who will determine his salary upon
arrival. I’ll be arriving soon, as my Lanao project
has a little problem.

Regards: Good luck to all

Sgd. (Illegible)” (p. 136, Rollo)

The above communication
to Engineer Morales for him to assess the capabilities of private respondent is
not suffi­cient to show that he was taken in as an apprentice. There was no written
agreement that his services had been engaged as an apprentice. On the contrary,
every circumstance would indicate that he was accepted on the basis of his
credentials that he had been an employee for several years as a surveyor in the
Bureau of Lands. He was given a salary of P450.00 a month and, on June 1, 1976,
was sent to Surigao del Sur
to perform the work of a surveyor, with seven men under him to supervise. For
all intents and purposes, he comes within the meaning of a regular employee
“to perform activities which are usually necessary or desirable in the
usual business or trade of the employees.” (Article 281 of the Labor
Code). In short, if it was really the inten­tion of petitioner to employ
private respondent as an apprentice only, it should have so stated the same
clearly and in writing.

Thus, as a regular
employee, private respondent cannot be terminated except for a just cause or
when authorized under Article 283 of the Labor Code, which provides:

“Art. 283. Termination
by employer. -An employer
may terminate an employee without a definite period for any of the following
just causes:

(a) The closing or
cessation of operation of the establishment or enterprise, or where the
employer has to reduce his workforce by more than one-half (½) due to serious business reverses,
unless the closing is for purpose of circumventing the provision of this
Chapter;

(b) Serious misconduct or willful
disobedience by the employee of the orders of his employer or representative in
connection with his work;

(c) Gross and
habitual neglect by the employee of his duties;

(d) Fraud or willful
breach by the employee of the trust reposed in him by his employer or
representative;

(e) Commission of a
crime or offense by the employee against the person of his employer or any
immediate member of his family or representative; and

(f) Other causes analogous to the foregoing.”

Finally, We find merit in the submission of the Solicitor General
that “considering the circumstances of the case and the seeming bad faith
of petitioner in dis­missing private respondent, it is in consonance with
justice, reason and equity that respondent NLRC awarded back wages to private
respondent. Private respondent, during his lay-off, and his family have to
undergo diffi­culties and hardships of life
(National Shipyards and Steel Corporation vs. CIR, et al., 57 SCRA 642). It has
not been shown that in the interim from his illegal dis­missal, private
respondent has found some means of live­lihood to support himself and his
family.”

WHEREFORE, for lack of merit, the petition is dis­missed
and the temporary restraining order issued on September 22, 1982 is hereby
LIFTED.

SO ORDERED.

Melencio-Herrera, (Acting Chairman), Abad Santos, Plana, and Escolin, JJ., concur.