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[G.R. No. 152291. June 7, 2006]

PHILIPPINE MUTUAL SECURITY AGENCY, INC.* versus THE COURT OF APPEALS, NATIONAL LABOR RELATIONS COMMISSION, ROGELIO D. ARTITA AND FELIX E. DOMINGO

Sirs/Mesdames:

Quoted hereunder, for your information is a resolution of the Third Division of this Court dated JUNE 7, 2006

G.R. No. 152291 (Philippine Mutual Security Agency, Inc. * versus The Court of Appeals, National Labor Relations Commission, Rogelio D. Artita and Felix E. Domingo)

This special civil action for certiorari under Rule 65 of the Rules of Court seeks to reverse and set aside the March 30, 2001 Decision ^[1] cralaw of the Court of Appeals in CA-G.R. SP No. 51399, and its February 12, 2002 Resolution ^[2] cralaw denying petitioner's Omnibus Motion for Reconsideration and Motion to Vacate Entry of Judgment.

Petitioner Philippine Mutual Security Agency, Inc. provides security services. Under its contract with the Asset Privatization Trust (APT), petitioner assigned private respondents Rogelio D. Artita and Felix E. Domingo and some others, to secure APT's properties in Diit, Tacloban City.

Petitioner alleged that despite receiving a series of memoranda to attend the APT re-orientation conferences and seminars at petitioner's head office in Cebu City to refine its Security Action Plan, private respondents refused to attend the conferences scheduled on February 11 and March 2, 1993. Petitioner averred that under the APT Guidelines, the failure of the security agency to correct insubordination or unsatisfactory performance is punishable by replacement of all security guards or of the security agency itself. Hence, in a memorandum dated March 15, 1993, petitioner charged private respondents with insubordination. Private respondents answered the charge but refused to attend the hearings and to turn over their firearms. Petitioner was therefore constrained to take them off duty.

Private respondents Artita and Domingo, in response, alleged that they had, earlier than the scheduled seminars, filed on January 21, 1993 and February 2, 1993, separate complaints for money claims. They averred that on March 15 and 16, 1993, ^[3] cralaw petitioner sent them a memorandum directing them to attend a re-orientation conference in Cebu City. They, however, wrote petitioner and explained that they could not attend the conference due to financial problems. Instead, they requested that they be furnished with the minutes of the conference for implementation in their areas of responsibility. On March 19, 1993, petitioner informed private respondents that their services were being terminated effective March 20, 1993 for willful disobedience. The following day, they were no longer allowed to work. Private respondents thus filed separate complaints for illegal dismissal which were eventually consolidated.

On June 27, 1996, Labor Arbiter Jesselito B. Latoja found private respondents' dismissal valid considering that private respondents' reason for disobeying the memorandum was unmeritorious. He also ruled that private respondents failed to justify their money claims. Thus:

WHEREFORE, premises considered, judgment is hereby rendered dismissing the herein consolidated complaints. Award for compassion the Respondent [sic] is hereby ordered to pay Felix Domingo P2,000.00 and Rogelio Artita P2,000.00.

Other claims including those of respondents' are denied for lack of merit.

SO ORDERED. ^[4] cralaw

Private respondents appealed to the National Labor Relations Commission. In a Decision dated May 29, 1997, the NLRC ordered the remand of the case for further reception of evidence as follows:

WHEREFORE, as discussed above, the decision appealed from is REVERSED, VACATED and SET ASIDE and a new one entered REMANDING the case for further reception of evidence with the strict directive for the handling Arbiter to conduct the necessary proceedings for the early resolution hereof.

SO ORDERED. ^[5] cralaw

On reconsideration, the NLRC resolved the case,

WHEREFORE, premises considered, the Motion for Reconsideration is GRANTED.

On the merits, We dismiss the complaints for illegal dismissal of complainants Edgar Caliwan and Bernardo Jullado. We however find complainants Rogelio Artita and Felix Domingo to have been illegally dismissed. Respondent PHILMUSA (Philippine Mutual Security Agency) is hereby ORDERED to pay the following:

All other claims are dismissed for lack of legal and factual basis.

SO ORDERED. ^[6] cralaw

The NLRC observed that private respondents' termination for alleged insubordination was a retaliation for their filing of money claims. The issuance of the series of memoranda came much later and became the excuse for private respondents' termination. The NLRC concluded that private respondents' termination was illegal for being retaliatory and discriminatory.

Its motion for reconsideration having been denied, petitioner is now before this Court for review on certiorari. In accordance with St. Martin Funeral Home v. NLRC, ^[7] cralaw we referred the petition to the Court of Appeals. On March 30, 2001, the appellate court dismissed the petition, ruling that the NLRC resolution was supported by substantial evidence. Petitioner moved for reconsideration but was denied.

Again, before this Court petitioner raises that the Court of Appeals committed grave abuse of discretion:

(a) ... in denying petitioner's Motion to Vacate Entry of Judgment and in ruling that petitioner received [i]ts Decision through counsel despite the undisputed evidence to the contrary.

(b) . in affirming the Resolution of the respondent National Labor Relations Commission (Fourth Division) which reversed the factual findings of its Regional Arbitration Branch and ruled against the petitioner, without any transcript or record of the latter's proceedings to properly and fairly guide them in its review of the case.

(c) ... in dismissing the petition for certiorari on the ground of failure of petitioner "to post a cash or surety bond in the amount equivalent to the monetary award in the judgment appealed from." ^[8] cralaw

On the first issue, petitioner maintains that its Omnibus Motion for Reconsideration and Motion to Vacate Entry of Judgment was seasonably filed on August 28, 2001. It alleges that its counsel learned of the Court of Appeals' decision dated March 30, 2001 only on August 14, 2001 after its counsel received the Notice of Entry of Judgment. In fact, its counsel obtained a copy of the decision only on August 21, 2001. Petitioner adds that the receipt of the Decision on April 6, 2001 by S/G Leo Mahusay, the security guard of the building where its counsel holds office, did not constitute notice to its counsel, as required by Sections 2 ^[9] cralaw and 10, ^[10] cralaw Rule 13 of the Rules of Court. The affidavit of Mahusay states in part:

x x x x

3. That post-office messengers are often in a hurry that they don't bother anymore to go up the building but would sometimes ask me to receive mailed letters for the different building occupants;

4. Yesterday, I was confronted by the lawyers of the Senining, Belcina, Atup Law Offices with a xerox copy of the records of the Cebu Post Office about a letter from the Court of Appeals, Manila bearing registry number 47910. The law office complained that their office did not receive the letter. I saw from the post office record shown to me that it contained my signature and the date 4/6/001. And, I am reminded that on April 6, 2001, after I received the 3 letters for the different offices in the building, I became so busy securing the perimeter of the building due to reliable information during that time about an impending labor strike in some offices of the building. So, I somehow forgot or misplaced these letters. Finally, that while it is not my duty to receive these mail matters, from now on I will be keeping a log book for such letters especially those intended for the law office since I realize only now how important those letters can be;

x x x x (Emphasis supplied.) ^[11] cralaw

To support its contention, petitioner cites Adamson Ozanam Educational Institution, Inc. v. Adamson University Faculty and Employees Association, ^[12] cralaw where the decision of the NLRC was served upon the security guard of the building where the office of petitioner's counsel was located. We held that "[w]here the copy of the decision is served on a person who is neither a clerk or one in charge of the attorney's office, such service is invalid and the decision does not therefore become executory. The security guard of the building where the attorney is holding office is neither the office clerk nor a person in charge thereof as contemplated in the rules." ^[13] cralaw

Private respondents counter that the records show that Mahusay had been receiving mail matters for petitioner's counsel. Such practice was therefore tolerated by petitioner. Thus, there was a valid service of the appellate court's decision to petitioner's counsel and it became final and executory after the lapse of the period within which petitioner may appeal.

We are not wholly convinced by petitioner's argument. While Mahusay's affidavit states that "it is not my duty to receive these mail matters," the tolerated practice appears an implied agency between him and petitioner's counsel. In Equitable PCI Bank v. Ku, ^[14] cralaw we held that:

An agency may be express but it may also be implied from the acts of the principal, from his silence, or lack of action, or his failure to repudiate the agency, knowing that another person is acting on his behalf without authority. Likewise, acceptance by the agent may also be express, although it may also be implied from his acts which carry out the agency, or from his silence or inaction according to the circumstances. ^[15] cralaw

In this case, Mahusay averred that "post-office messengers are often in a hurry that they don't bother anymore to go up the building but would sometimes ask me to receive mailed letters for the different building occupants," indicating that he had received on several occasions mail matters for petitioner's counsel. There is no showing that petitioner's counsel had objected to this practice or took steps to put a stop to it. In fact, Mahusay even declared that "from now on I will be keeping a log book for such letters especially those intended for the law office since I realize only now how important those letters can be," implying that instead of putting a stop to this practice, petitioner's counsel still allowed him to receive mail matters as long as he maintains a logbook to keep track of them.

In our view, Mahusay's receipt of the Court of Appeals' decision dated March 30, 2001 on April 6, 2001 constituted notice to petitioner's counsel. Petitioner's Omnibus Motion for Reconsideration and Motion to Vacate Entry of Judgment was therefore filed late on August 28, 2001.

In light of the foregoing, we find no need to discuss the other errors allegedly committed by the Court of Appeals.

As a final note, records show that on March 22, 2002, private respondent Artita received from petitioner the amount of P77,500 as full and final settlement of his claims. ^[16] cralaw

WHEREFORE, the petition is DISMISSED. The Decision dated March 30, 2001 and the Resolution dated February 12, 2002 of the Court of Appeals in CA-G.R. SP No. 51399, are AFFIRMED. The money claims awarded to private respondent Rogelio D. Artita in the resolution of the National Labor Relations Commission dated November 12, 1997, is mooted and need not be executed.

SO ORDERED.

Very truly yours,

(Sgd.) LUClTA ABJELINA-SORIANO
Clerk of Court

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Endnotes:

* Also referred to as Philippine Mutual Security Agency or PHILMUSA in other parts of the rollo .

^[1] cralaw Rollo , pp. 17-25. Penned by Associate Justice B. A. Adefuin-De La Cruz, with Associate Justices Andres B. Reyes, Jr., and Josefina Guevara-Salonga concurring.

^[2] cralaw Id. at 13-15.

^[3] cralaw Private respondent Felix E. Domingo received the memorandum on March 15, 1993 while private respondent Rogelio D. Artita received it on March 16, 1993.

^[4] cralaw Rollo , p. 36.

^[5] cralaw Id. at 49.

^[6] cralaw Id. at 55-56.

^[7] cralaw G.R. No. 130866, September 16, 1998, 295 SCRA 494.

^[8] cralaw Rollo , p. 8.

^[9] cralaw SEC. 2. Filing and service, defined. - x x x

Service is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side.

^[10] cralaw SEC. 10. Completeness of service. - Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration often (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier.

^[11] cralaw Rollo , p. 74.

^[12] cralaw G.R. No. 86819, November 9, 1989, 179 SCRA 279.

^[13] cralaw Id. at 283.

^[14] cralaw G.R. No. 142950, March 26, 2001, 355 SCRA 309.

^[15] cralaw Id. at 315-316.

^[16] cralaw Rollo , pp. 183-185.

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