Republic
of the
Supreme Court
THIRD DIVISION
PHILIPPINE NATIONAL BANK, G.R. No. 166096
Petitioner,
Present:
CHICO-NAZARIO, J.,*
Acting
Chairperson,
-
versus
- TINGA,**
VELASCO,
JR.,**
NACHURA,
and
REYES,
JJ.
Promulgated:
RAMON
BRIGIDO L. VELASCO,
Respondent. September 11, 2008
x - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - x
D E C I S I O N
REYES, R.T., J.:
THIS is a tale of a bank
officer-depositor clinging to his position after violating bank regulations and falsifying his passbook to cover up a false
transaction.
Before
the Court is a petition for review on certiorari under Rule 45 of the
1997 Rules of Civil Procedure seeking the reversal of the Decision[1]
and Resolution[2] of the
Court of Appeals (CA). The appealed decision reversed those of the National
Labor Relations Commission (NLRC)[3]
and the Labor Arbiter[4]
which dismissed the complaint for illegal dismissal and damages of Ramon Brigido L. Velasco against Philippine National Bank (
The Facts
Ramon
Brigido L. Velasco, a
US$15,000.00 from the dollar
savings account. At that time, the account
had a balance of US$15,486.07. The Ligao Branch is
an off-line branch, i.e., one with no network connection or computer linkage
with other
On
Sometime
in September 1995, while Velasco was on a provincial audit, he claimed calling through phone a
kin in
from abroad. This kin allegedly told him that his New
York-based brother, Gregorio Velasco, sent him various checks through his kin
totaling US$15,000.00 and that the checks would just be deposited in time in Velascos
account.
On
On different dates, Velasco made
several inter-branch withdrawals from the dollar savings account, to wit:
|
|
Date |
Amount |
|
|
|
US$2,000.00 |
|
|
|
3,329.97 |
|
Cash Dept. |
|
4,000.00 |
|
|
Total |
US$9,329.97 |
Mrs.
Belen Velasco also withdrew several amounts on the dollar account, viz.:
|
|
Date |
Amount |
|
|
|
US$11,494.00 |
|
|
|
1,292.32 |
|
|
Total |
US$12,786.32 |
Subsequently,
the dollar savings account of the spouses was closed.
On
Escolta Branch, Molina D. Salvador, a member
of the Internal Audit Department (IAD) of
On
The
following day, or on
On
Meanwhile,
on
On
On
On
Regulations for Banks; (2) in
transacting the no-book withdrawal, he failed to present any letter of
introduction as required under General Circular 3-72/92; (3) the irregular
inter-branch withdrawal was aggravated by the failure of Escolta
Branch to post/enter the withdrawal into the computer upon receipt of the
On
On
US$15,000.00 on
which was then kept by his wife who could
not be contacted at that moment.
On
On P14,932.00
per month plus a monthly allowance of P3,940.00 or a total salary of P18,872.00
per month.
On
Labor Arbiter, NLRC, and CA
Dispositions
On
WHEREFORE,
judgment is hereby rendered as follows:
1. Dismissing the complaint for illegal
dismissal against respondents for want of merit.
2. Ordering P103,796.00.
3. Dismissing complainants claims for damages
and other monetary claims for lack of merit.
SO ORDERED.[19]
In
his ruling, the Labor Arbiter opined that as an employee and officer of
The
Labor Arbiter also found as flimsy the argument that the additional
US$15,000.00 was the amount given to Velasco by his brother
from the
Moreover, the Labor Arbiter held that
the entry in the passbook purportedly reflecting the withdrawal of US$15,000.00
is a forgery. It was done to conform to
the defense of Velasco that he presented his passbook on
On
the charge of illegal suspension, the Labor Arbiter held that the preventive suspension
of Velasco was reasonable in view of the sensitive
nature of his position. It was also necessary to protect the records
of PNB.[23] It follows that the withholding of his company
benefits is reasonable.[24] Nonetheless, he should be paid
his salary from
His claim for damages and attorneys
fees must be denied because
Dissatisfied with the decision of the
Labor Arbiter, both Velasco[27]
and
On
Arbiter decision, disposing, thus:
WHEREFORE,
the decision appealed from is hereby MODIFIED to the extent that the award of
unpaid salaries is hereby REDUCED to the complainants salaries from
In sustaining the Labor Arbiter, the
NLRC held that Velascos lack of knowledge of the non-posting of his withdrawal
is not credible. Even a cursory look at his passbook shows that no
deposit of US$15,000.00 was
ever made. That there was still a balance of more than
US$15,000.00 in his account after the withdrawal he made on
transaction. The withdrawal of US$15,000.00 was not taken into consideration in
the determination of the balance of
The NLRC concluded that the
falsification of the passbook shows deceit on the part of Velasco. He took advantage of his position. The posting of the falsified entry could not
have been made without, or was at least facilitated by, his being an employee
of the bank. Thus, his subsequent
withdrawals amounted to
losses on the part
of the bank. He made those
withdrawals from his account with full knowledge
that the balance of his
passbook of more than US$15,000.00 was
attributed to the non-posting of the
The NLRC also held that he had been preventively
suspended for
more than thirty (30) days as of
Like the Labor Arbiter, the NLRC held
that Velasco may not recover damages. His dismissal was not done oppressively or in
bad faith. Neither was he subjected to
unnecessary embarrassment or humiliation.[33]
His
motion for reconsideration having been denied, Velasco elevated the matter to
the CA by way of petition for review on certiorari under Rule 43 of the
Rules of Court.[34] On
WHEREFORE,
for the foregoing discussions, We REVERSE and SET ASIDE the
findings of public respondent NLRC and Labor Arbiter and hereby enter a
decision ordering
SO ORDERED.[35]
According to the CA, the failure of
Velasco to present his passbook and a letter of introduction does not
constitute misconduct. Assuming for the sake of argument that he committed a serious misconduct
in not properly monitoring his account with ordinary diligence and prudence,
the same may be said of
Issues
I. WHETHER OR NOT
THE COURT OF APPEALS ERRED
II. WHETHER OR NOT
THE COURT OF APPEALS ERRED
We add a third issue which was raised
by
Our Ruling
I. Appeal does not lie from the decision of the
NLRC.
We first address the procedural
question on the propriety of the Rule 43 petition. Rule 43 provides for appeal from
quasi-judicial agencies to the CA by way of petition for review. Petition for review on certiorari or appeal by certiorari
is a recourse to the Supreme Court under Rule 45.
The mode
of appeal resorted to by Velasco is wrong because appeal is not the proper
remedy in elevating to the CA the decision of the NLRC. Section 2, Rule 43 of the 1997 Rules of Civil
Procedure is explicit that Rule 43 shall not apply to judgments or final
orders issued under the Labor Code of the
The correct remedy that should have
been availed of is the special civil action of certiorari under Rule 65. As
this Court held in the case of Pure Foods Corporation v. NLRC,[39]
the party may also seasonably avail of the special civil action
for certiorari, where the tribunal, board or officer
exercising judicial functions has acted without
or in excess of its jurisdiction, or with grave abuse of discretion, and
praying that judgment be rendered annulling or modifying the proceedings, as
the law requires, of such tribunal, board or officer.[40] In any case,
That the decision
of the NLRC
is not subject to appeal could have
been a
ground for the CA to dismiss the appeal of Velasco.[43] But even assuming, arguendo, that his petition could be
liberally treated as one for certiorari
under Rule 65, the recourse should not have prospered.
II. Velasco
committed serious misconduct, hence, his dismissal is justified.
Article 282 of the Labor Code enumerates the just causes where an
employer may terminate the services of an employee,[44]
to wit:
a) Serious misconduct or willful
disobedience by the employee of the lawful orders of his employer or
representative in connection with his work;
b) Gross and habitual neglect by
the employee of his duties;
c) Fraud or willful breach by the
employee of the trust reposed in him by his employer or duly authorized
representative;
d) Commission of a crime or
offense by the employee against the person of his employer or any immediate
member of his family or his duly authorized representative; and
e) Other causes analogous to the
foregoing.
In Austria
v. National Labor Relations Commission,[45]
the Court defined misconduct as improper and wrongful conduct. It is the transgression
of some established and definite rule of action, a forbidden act, a dereliction
of duty, willful in character, and implies wrongful intent and not mere error
in judgment.[46]
In Camus
v. Civil Service
Board of Appeals,[47] misconduct was described as wrong or
improper conduct.[48] It implies a wrongful intention and not a
mere error of judgment.[49]
Of
course, ordinary misconduct would not justify the termination of the services
of an employee. The law is explicit that
the misconduct should be serious. It is
settled that in order for misconduct to be serious, it must be of such grave
and aggravated character and not merely trivial or unimportant.[50]
As amplified by jurisprudence, the
misconduct must (1) be serious; (2) relate to the performance of the employees
duties; and (3) show that the employee has become unfit to continue working for
the employer.[51]
Measured
by the foregoing yardstick, We rule that Velasco
committed serious misconduct that warrants termination from employment.
A. The misconduct is serious.
Velasco violated bank rules when he transacted a no-book withdrawal by
his failure to present his passbook to the
Further, he failed to present any letter
of introduction as mandated under General Circular 3-72-92 which requires that [b]efore going out-of-town, the Depositor secures a Letter of
Introduction from the branch/office where his Peso Savings Account is
maintained.
The presentation of passbook and letter of introduction is not without a
valid reason. As aptly stated by the IAD
of
Considering that the
True, a strict reading of General Circular 3-72-92 would lead one to conclude
that only persons with peso savings account are required to secure a letter of
introduction. However, simple logic dictates that those maintaining dollar
savings account are also included. No
cogent reason would be served by the rule if only persons with peso savings
account are required to get a letter of introduction. Otherwise, there can be a circumvention of
the rule. Nemo potest
facere per alium qud non potest facere per directum. No one is allowed to do indirectly what he is
prohibited to do directly. Sinuman ay hindi
pinapayagang gawin nang hindi tuwiran
ang ipinagbabawal gawin nang tuwiran.
As an audit officer, Velasco should be the first to ensure that banking
laws, policies, rules and regulations, are strictly observed and applied by its
officers in the day-to-day transactions. The banking system is an indispensable institution
in the modern
world. It plays a vital role
in the economic life of every civilized nation. Whether banks act as mere passive entities for
the safekeeping and saving of money, or as active instruments of business and
commerce, they have become an ubiquitous presence
among the citizenry, who have come to regard them with respect and even
gratitude and, most of all, confidence.[53]
The CA, however, opined that the
failure of Velasco to abide by the rules is not serious misconduct because (1)
from the admission of
In Santos
v. San Miguel Corporation,[55]
petitioner, in his defense, cited the prolonged practice of payroll personnel, including persons in
managerial levels, of encashing personal checks. Finding this argument unmeritorious, the Court
held that [p]rolonged practice of encashing personal checks among respondents payroll
personnel does not excuse or justify petitioners misdeeds. Her willful and deliberate acts were in gross
violation of respondents policy against encashment of personal checks of its
personnel, embodied in its Cash Department Memorandum dated
Suffice
it to state that the option of who to charge or punish belongs to
Of
course, We are not unaware that Velasco had a change
of heart. In his sworn
Letter-Explanation
To recall, he was charged with
dishonesty, grave misconduct, and/or conduct grossly prejudicial to the best
interest of the service for irregularly handling his dollar savings account. Thus, it is safe to assume that when he
prepared his
Perez v. People,[59] is
illustrative on this score. Perez, an acting municipal treasurer, submitted two
contradicting answers explaining the location of the missing funds under his
custody and control: the first, reiterating his previous verbal
admission before the audit team that part of the money was used to pay for the loan of his late
brother, another portion was spent for the food of his family, and the rest for
his medicine; and the second, claiming that the alleged missing amount
was in the possession and custody of his accountable personnel at the time of
the audit examination.
This Court held that the sudden
turnaround of Perez was merely an afterthought. He only changed his story to exonerate
himself, after realizing that his first Answer put him in a hole, so to speak.[60] Neither did the Court believe that his alleged
sickness affected the preparation of his first Answer. Perez presented no convincing evidence that
his disease at the time he formulated that Answer diminished his capacity to
formulate a true, clear and coherent response to any query. In fact, its contents merely reiterated his
verbal explanation to the auditing team on
We find no cogent reason to depart
from Our ruling in Perez.
The claim of Velasco that his initial
answer was made under pressing circumstances is too flimsy an excuse. It partakes of the nature of an alibi. As such, it constitutes a
self-serving negative evidence which cannot he accorded greater
evidentiary weight than the declaration of credible witnesses who testified on
affirmative matters.[62] The Court has consistently frowned
upon the defense
of alibi, and received
it with caution, not only
because it is inherently weak and unreliable
but also because it can be easily fabricated.[63]
Also worth noting is that Velasco never
imputed any ill motive on the part of Rexor, Gacer, and Letada who
collectively narrated that the
Velasco did not only violate bank
rules and regulations. What compounds
his offense was his unusual silence. He
never informed
With his silence, he clearly intended
to gain at the expense of
His claim that he was satisfied with
the updated balance of US$15,486.01 on
deposit would have also been posted for
update upon the presentation of the passbook on
In Aboitiz Shipping Corporation v. Dela Serna,[64]
Tiu v. National Labor Relations Commission,[65]
Five J Taxi v. National Labor Relations Commission,[66] and Falguera
v. Linsangan,[67]
among other cases, this Court consistently held that factual findings of
quasi-judicial agencies, which have acquired expertise in matters entrusted to
their jurisdiction, are accorded not only respect but also finality if they are
supported by substantial evidence.[68]
Thus, in the absence of proof that the Labor Arbiter or the
NLRC had gravely abused
their discretion, this Court shall deem conclusive and will not overturn their particular factual
findings.[69]
The Labor Arbiter and the NLRC are in unison that Velasco
transacted a no-book withdrawal and failed to present a letter of introduction
at
B. The serious misconduct relates to the
performance of duties. The CA ruled that the offense of Velasco was
not work-related and does not warrant dismissal. It likewise held that there is no proof that
his failure to be a good depositor affected his duties or performance as an
employee of
At first glance, the acts committed
by Velasco pertain only to his being a depositor of
On one hand, he failed to present his
passbook and a letter of introduction when he withdrew US$15,000.00 at
when he violated bank rules and regulations and tried
to cover up his infractions by falsifying his passbook, he was not only
committing them as a depositor but also, or rather more so, as an officer of
the bank. It is akin to falsification of time cards,[72]
and circulation of fake meal tickets,[73]
which this Court held as a just cause for terminating the services of an
employee.
C. Velasco has become unfit to
continue working at
The leniency sought by respondent on the
basis of her 35 years of service to the bank must be weighed in conjunction
with the other considerations raised by petitioners. As that service has
been amply compensated, her plea for leniency cannot offset her
dishonesty. Even government employees who are validly dismissed from the
service by reason of timely discovered offenses are deprived of retirement
benefits. Treating respondent in the same manner as the loyal and
code-abiding employees, despite the timely discovery of her Code violations,
may indeed have a demoralizing effect on the entire bank. Be it
remembered that banks
thrive on and endeavor to retain public
trust and confidence, every violation of which must thus be accompanied by
appropriate sanctions.[77]
Section 8. Preventive Suspension. The
employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat
to the life or property of the employer or his co-workers.
Section 9. No preventive suspension shall last longer
than thirty (30) days. The employer
shall thereafter reinstate the worker in his former or in a substantially
equivalent position or the employer may extend the period of suspension
provided that during the period of extension, he pays the wages and other
benefits due to the worker. In such
case, the worker shall not be bound to reimburse the amount paid to him during
the extension if the employer decides, after completion of the hearing, to
dismiss the worker.
Velasco was
preventively suspended for more than thirty (30) days as of
He is not entitled to separation and backwages because he
was not
illegally dismissed.[80] We note though that P542,110.75 as separation benefits[82]
which was used to offset his loan in the bank, leaving an outstanding balance
of P167,625.82 as of
One last word.
The law imposes great burdens on the employer. One needs only to look at the varied
provisions of the Labor Code. Indeed,
the law is tilted towards the plight of the working man. The Labor Code is titled that way and not as
Employer Code. As one American ruling
puts it, the protection of labor is the highest office of our laws.[84]
Corollary to this, however, is the
right of the employer to expect from the employee no less than adequate work,
diligence and good conduct.[85] As Mr. Justice Joseph McKenna of the United
States Supreme Court said in Arizona Copper Co. v. Hammer,[86]
[t]he difference between the position of the employer and the employee, simply
considering the latter as economically weaker, is not a justification for the
violation of the rights of the former.[87]
WHEREFORE, the
petition is GRANTED and the appealed
Decision REVERSED and SET ASIDE. The Decision of the National Labor Relations Commission
is REINSTATED.
SO ORDERED.
RUBEN T. REYES
Associate Justice
WE CONCUR:
MINITA V.
CHICO-NAZARIO
Associate Justice
Acting Chairperson
DANTE O. TINGA PRESBITERO J. VELASCO, JR.
Associate
Justice Associate Justice
ANTONIO EDUARDO
B. NACHURA
Associate Justice
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
Courts Division.
MINITA V.
CHICO-NAZARIO
Associate Justice
Acting Chairperson
Pursuant to Section 13, Article VIII of the
Constitution and the Division Acting Chairpersons 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 Courts Division.
REYNATO S. PUNO
Chief Justice
* Vice Associate Justice Consuelo Ynares-
**
Designated as additional members vice Associate Justices
Consuelo Ynares-Santiago and Ma. Alicia
Austria-Martinez per Special Order No. 517 dated
[1] Rollo, pp. 78-89; Annex A. CA-G.R. No. 61881. Penned by Associate Justice Danilo P. Pine, with Associate Justices Martin S. Villarama, Jr. and Arcangelita Romilla-Lontok, concurring.
[2]
[3]
[4]
[5] Annex F.
[6] Annex G.
[7]
[8] Annex H.
[9] Annex I.
[10] CA rollo, pp. 186-188; Annex M.
[11]
Annex J.
[12] Rollo, pp. 123-125.
[13] CA rollo, p. 121; Annex G.
[14]
Annex K.
[15]
Annex L.
[16] Rollo, p. 117.
[17]
Annex M.
[18]
Annex O.
[19] Rollo, p. 106.
[20]
[21]
[22]
[23]
[24]
[25]
[26]
[27]
Annex T.
[28]
Annex U.
[29] Rollo, p. 114.
[30]
[31]
[32]
[33]
[34]
Annex W.
[35] Rollo, pp. 88-89.
[36]
[37]
[38]
[39] G.R.
No. 78591,
[40]
[41] G.R.
No. 130866,
[42]
[43] Rules of Civil Procedure (1997), Sec. 1. Grounds for dismissal of appeal. An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds:
x x x x
(i) The
fact that the order or judgment appealed from is not appealable.
[44] As contradistinguished with Article 285 of the Labor Code, which enumerates the instances when an
employee may terminate his
employment relation with the employer, to wit: (1) Serious insult by the
employer or his representative on the honor and person of the employee; (2)
Inhuman and unbearable treatment accorded the employee by the employer or his
representative; (3) Commission of a crime or offense by the employer or his
representative against the person of the employee or any of the immediate
members of his family; and (4) Other causes analogous to any of the foregoing.
[45]
G.R. No. 124382,
[46]
[47] 112 Phil. 301 (1961).
[48] Camus v. Civil Service
Board of Appeals, id. at 306.
[49]
[50] Austria v. National Labor Relations
Commissions, supra note 47.
[51] Philippine Aeolus
Automotive United Corporation v. National Labor Relations Commission, G.R.
No. 124617,
[52] CA rollo, p. 99.
[53] Simex International (Manila), Inc. v. Court of
Appeals, G.R. No. 88013,
[54] Rollo, pp. 84-85.
[55]
G.R. No. 149416,
[56]
[57]
[58]
See Soriano v. National Labor Relations Commission,
G.R. No. L-75510,
[59]
G.R. No. 164763,
[60] Perez v. People, id. at 11.
[61]
[62] People v. Estomaca,
G.R. Nos. 134288-89,
[63] People v. Villamor,
G.R. Nos. 140407-08 & 141908-09,
[64] G.R.
No. 88538,
[65] G.R.
No. 83433,
[66] G.R.
No. 111474,
[67]
G.R. No. 114848,
[68]
See also German Marine Agencies, Inc. v.
National Labor Relations Commission, G.R. No. 142049,
[69]
Id. at 647, citing Gandara Mill Supply v. National Labor Relations
Commission, G.R. No. 126703,
[70] Piedad v. Lanao del
Norte Electric Cooperative, Inc., G.R. No. 73735,
[71] Rollo, pp. 86-87.
[72]
See San Miguel Corporation Employees
[73] Ibarrientos v. National Labor Relations Commission,
G.R. No. 75277,
[74] Mendoza v. National Labor Relations
Commission, G.R. No. 131405,
[75] Gonzales v. National Labor
Relations Commission, G.R. No. 131653,
[76]
G.R. No. 159170,
[77] Equitable PCIBank v. Caguioa, id.
at 698.
[78] Rollo, p. 165.
[79] Rollo, p. 258; Annex 1.
[80]
See Labor Code, Art. 279; Philippine
Carpet Employees Association v. Philippine Carpet Manufacturing Corporation,
G.R. Nos. 140269-70,
[81] Rollo, p. 164.
[82] CA rollo, p. 200.
[83]
[84] Ex parte Newman, 9
[85] Coca-Cola Bottlers
[86]
250
[87] Arizona Copper Co. v. Hammer,
id. at 437.