ATLAS CONSOLIDATED MINING AND DEVELOPMENT CORPORATION, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION AND RODOLFO S. CABALLO, RESPONDENTS.

This petition filed by Atlas Consolidated Mining and Development
Corporation under Rule 45 of the Rules of Court is treated as a special civil
action for certiorari under Rule 65 of the Rules of Court as it assails
the resolution issued by the National Labor Relations Commission on October 25,
1985 affirming the decision dated October 18, 1984 of Executive Labor Arbiter Fulleros which declared as illegal the dismissal of private
respondent Rodolfo S. Caballo, and ordered petitioner
Atlas Consolidated Mining and Development Corporation (Atlas for short) to
reinstate Caballo without loss of seniority rights
and other benefits, and to pay the discharged employee P10,000.00 in moral
damages and P2,000.00 as attorney’s fees.^[1]

The facts as found by the Labor Arbiter are as follows:

Rodolfo S. Caballo has been a junior
engineer in the construction department of petitioner Atlas since October 4, 1978.  To settle urgent family matters in Bohol, he took an approved leave of absence
for ten (10) days from May 27, 1981
to June 10, 1981.

Upon the expiration of his leave, Caballo
wired his department head that he was extending his leave because he was
waiting for the release of his bank loan. 
Unfortunately, he was stricken ill and was later diagnosed to be
suffering from acute pyelonephritis and
hepatitis.  He was advised by his
physician to rest for several months.

On August 5, 1981,
Caballo received a letter from petitioner Atlas dated
July 22, 1981 giving him
ten (10) days from receipt to come back to work and in the alternative, to
explain why he should not be dismissed for his prolonged absence.  Two (2) days later, on August 7, 1981, Caballo received another communication from Atlas, this
time a copy of the application for written clearance to discharge him dated
July 23, 1981 which petitioner Atlas filed with the then Ministry of Labor and
Employment on August 8, 1981.

As he was gravely sick and secure in the thought that his sister
had earlier on August 5, 1981
informed petitioner Company by telegram of his predicament, Caballo
paid no attention to the clearance application filed by his employer.

On the other hand, finding that Caballo
did not manifest any opposition to its application for clearance to dismiss him
within the reglementary period of ten (10) days from
notice, petitioner proceeded to effect his separation from the service.

On January 14, 1982 or six (6) months and twenty-four (24) days
after his initial leave, Caballo reported for work,
armed with medical certificates attesting to his recent illness.  Petitioner Atlas refused to take him back
because he had been dismissed.  Caballo requested that he be given separation pay and other
fringe benefits but petitioner Company was only willing to give him a
proportionate amount of the 13th month pay and nothing more.  Thus, his complaint for illegal dismissal
which as above adverted to, was resolved by the Labor
Arbiter on October 18, 1984
and the National Labor Relations Commission on October 25, 1985 in his favor.  Commissioner Federico O. Borromeo
of the NLRC dissented with respect to the award of P10,000.00
moral damages in favor of private respondent finding the same to be without
legal basis.

On December 6, 1985,
petitioner filed by registered mail a motion for reconsideration of the
resolution dated October 25, 1985
but this was subsequently denied on May
29, 1986.

Hence the instant recourse by petitioner Atlas.

It is the principal contention of petitioner Atlas that the
absence of private respondent without leave for over six (6) months was far too
long to be justified, and that even if private respondent was indeed sick, as
claimed by him, still, valid grounds exist to justify his dismissal,
namely:  first, after private respondent
had sent a telegram on August 5, 1981 informing petitioner that he was sick in
compliance with petitioner’s letter dated July 22, 1981 giving him 10 days to
report for work and explain why he should not be discharged for his prolonged
absence, nothing was heard from him until only about five (5) months later, on
January 4, 1982, when he surfaced with a medical certificate; and second, an
application for clearance to terminate private respondent was filed with the
Ministry of Labor which private respondent did not oppose within the 10-day
period given him from receipt of the same on August 7, 1981.

The contentions are devoid of merit.

It was erroneous for petitioner Atlas to conclude that the
prolonged absence of private respondent constitutes abandonment of his
employment.^[2]
The prolonged absence of private respondent cannot be construed as abandonment
of work when said absence was due to a justifiable reason, i.e., that he was
suffering from acute pyelonephritis under the medical
attention of Dr. Didi Yap Alba of Englewood Hospital
from July 7 to 28, 1981 – a fact duly communicated to petitioner – which was
found later on August 30, 1981 by Dr. Davis Endino, a
resident physician of Bohol Provincial Hospital
Regional Health Office No. VII, as a case of acute hepatitis
which required a two (2)-month rest.

As we said in Flexo Manufacturing
Corporation vs. NLRC,^[3]
mere absence is not sufficient to constitute a valid cause for termination of
employment on the ground of abandonment for there must be a deliberate
unjustified refusal of the employee to resume his employment.  This refusal must be clearly shown.  The absence must be accompanied by overt acts
unerringly pointing to the fact that the employee simply does not want to work
anymore.^[4]

In the instant case, the evidence on record conclusively shows
that private respondent reported for work on January 4, 1982 but was not allowed to work
notwithstanding the medical certificate presented attesting that he was sick
with hepatitis, an illness requiring prolonged rest and isolation.  Even before he reported for work on January 4, 1982, the fact of his
illness was made known to petitioner Atlas on August 5, 1981 when his sister informed the former of the
reason why he could not report for work after the expiration of his leave of
absence and that he would return to work once fully recuperated.  While private respondent recognized the
importance of his job, it cannot be denied, however, that his health takes
precedence over all other considerations. 
Considering the nature of his illness and condition while under
medication, private respondent’s failure to comply with the procedural
requirements of opposing the clearance application to terminate him cannot
justify petitioner’s summary dismissal of private respondent on the presumption
that he had abandoned his job.

Besides, private respondent immediately filed on February 26, 1982 a complaint for
illegal dismissal, seeking his reinstatement with full backwages
as well as moral damages after his request for separation pay and other fringe
benefits was denied by petitioner. 
Petitioner was only willing to give him a proportionate amount of his
13th month pay and nothing more, thus, prompting him to file the
complaint.  We said in Judric Canning Corporation vs. Inciong,^[5]
that “it would be illogical for the private respondent to abandon his work
and then immediately file an action seeking his reinstatement.” Indeed, we
cannot believe private respondent, who had worked for petitioner for two (2)
years and 10 months, would simply walk away from his job unmindful of the
consequences of his act, i. e. the forfeiture of his
accrued employment benefits.  In opting
finally to contest the legality of his dismissal instead of just claiming his
separation pay and other benefits, which he actually did but which proved to be
futile after all, ably supports his sincere intention to return to work, thus
negating the stand of petitioner that he had abandoned his job.

Although petitioner Atlas may have had some reasons for summarily
dismissing private respondent, these are not sufficient to detract from the
necessity of basic fair play.  The manner
of dismissal of private respondent in the instant case is tainted with
illegality, that is, a dismissal without due process.^[6]
The due process requirement is not a mere formality that may be dispensed with
at will.  Its disregard is a matter of
serious concern since it constitutes a safeguard of the highest order in
response to man’s innate sense of justice.^[7]

It must be noted that petitioner’s application for clearance to
terminate private respondent dated July 23, 1981 was prepared one (1) day after
its letter dated July 22, 1981 requiring private respondent to report for work
within 10 days from receipt and in the alternative to explain why he should not
be dismissed for his prolonged absence. 
The letter dated July 22, 1981
was received by private respondent on August
5, 1981 while the application for clearance to terminate was
received two (2) days thereafter or on August
7, 1981.  In other words,
without waiting for the lapse of the ten (10) day grace period within which to
report for work, petitioner had already applied for clearance to terminate
private respondent herein.  Clearly,
while there was a semblance of compliance with the clearance requirement before
actual termination, the intention of petitioner to dismiss private respondent
was already manifest when the clearance application was prepared one (1) day
after the letter requiring him to report for work within 10 days from receipt
was drafted.  This circumstance shows
that petitioner had long decided to dismiss private respondent even before the
expiration of the 10-day grace period given him to report for work.  However, private respondent was not entirely
without fault in not informing petitioner from time to time of the state of his
health in that span of six (6) months. 
For this reason, the reduction of the award of moral damages to P5,000.00 is warranted.

Petitioner questions the jurisdiction of the Labor Arbiter over
the complaint of illegal dismissal on the grounds that since the dismissal of
private respondent was effected under Book V, Rule XIV of the Rules and
Regulations Implementing the Labor Code prior to the effectivity
of Batas Pambansa Blg. 130
on August 26, 1981, the failure of private respondent to oppose the application
and his consequent dismissal operate to divest the Labor Arbiter of his
jurisdiction because the matter of his dismissal had already  been closed when petitioner proceeded to
dismiss private respondent.

The contention is erroneous. 
It is a well-settled rule that even if the application for clearance to
dismiss was granted by the Department of Labor and Employment, the grant
thereof will not prejudice the right of the dismissed employee to contest the
legality of his dismissal by filing a separate complaint for illegal dismissal.^[8]

WHEREFORE, in view of the foregoing, the resolution of the
National Labor Relations Commission dated October 25, 1985 is MODIFIED.  Petitioner is hereby ordered to reinstate
Rodolfo S. Caballo to his former position without
loss of seniority rights and other benefits with three (3) years backwages, P5,000.00 as moral damages, and P2,000.00 as
attorney’s fees.

SO ORDERED.

Gutierrez, Jr., Bidin, and Cortes, JJ., concur.

Feliciano, J., on leave.

^[1] Rollo, pp.
24 and 28.

^[2] p. 8, Petition, p. 10, Rollo.

^[3] 135 SCRA 145 (1985).

^[4] Penaflor vs.
NLRC, 120 SCRA 68; Capital Garment Corporation vs. Ople,
117 SCRA 473; Judric Canning Corporation vs. Inciong, 115 SCRA 887.

^[5] Supra.

^[6] Primero vs. Intermediate
Appellate Court, 156 SCRA 436 (1987).

^[7] Miguel vs. NLRC,
G.R. No. 78993, June 22, 1988, 162 SCRA 441.

^[8] Nasipit Lumber Company, Inc. vs. NLRC, et
al., G.R. No. 54424, August 31, 1989.