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[ G.R. No. 138966. September 20, 1999]

BISTRO RJ-MAKATI vs. FERNANDO T. PATRON

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated SEPT 20 1999.

G.R. No. 138966 (Bistro RJ-Makati vs. Fernando T. Patron.)

Petitioner filed this present petition for review on certiorari of the Decision of the Court of Appeals dated 4 June 1999 in CA-G.R. SP No. 50322. The assailed decision affirmed the dismissal by the National Labor Relations Commission of petitioner's appeal before it on the ground that both the appeal and the appeal bond were filed late.

As antecedents, respondent Fernando T. Patron filed a case for illegal dismissal against his former employer petitioner Bistro-RJ Makati, with the arbitration branch of the NLRC. In a Decision dated 18 June 1997, the Labor Arbiter found the petitioner guilty of illegal dismissal and ordered the reinstatement of the respondent, payment of backwages, 13th month pay, moral and exemplary damages and attorney's fees.1 [Rollo, pp. 24-29.]

Petitioner avers that his counsel received a copy of the decision of the Labor Arbiter only on 4 August 1997. Thus, its "Notice of Appeal with Memorandum on Appeal" was filed with the NLRC only on 13 August 1997.2 [Id., at 15.] In its Resolution dated 24 October 1997, the NLRC dismissed the appeal on the ground that it was belatedly filed, to wit:

Records show that copy of the Decision was received by respondents' counsel on August 1, 1997. Respondents files their appeal only on August 13, 1997. Hence, said appeal was not perfected within the reglementary period. Moreover, the bond was posted only on August 25, 1997. It is settled that failure to perfect appeal within the prescribed period is not only mandatory but jurisdictional.

WHEREFORE, PREMISES CONSIDERED, respondents' appeal is hereby DISMISSED for failure to perfect the same within the reglementary period set forth by law and the New Rules of Procedure. 3 [Id., at 43.] (Citations omitted)

In the assailed decision, the Court of Appeals affirmed the dismissal by the NLRC and ratiocinated:

While petitioner insists that it received a copy of the Labor Arbiter's decision on August 4, 1997, and therefore had until August 14, 1997, within which to perfect its appeal, the Registry Return Receipt however shows that the petitioner's counsel received it on August 1, 1997. Being an entry in official records, the Registry Return Receipt is prima facie evidence of the facts stated therein (Sec. 38. Rule 130).

At any rate, petitioner does not dispute the fact that it posted the appeal bond only on August 25, 1997 or after the expiration of the 10-day period for the perfection of its appeal. In case of a judgment involving a monetary award, as in this case, an appeal by the employer may be perfected only upon the posting of a cash or surety bond (Art. 233. Labor Code of the Philippines). Needless to say, the posting of the bond is a jurisdictional requirement for the perfection of an appeal. 4 [Id., at 80.]

In the petition before this Court, petitioner maintains that the Court of Appeals committed reversible error in denying the petition in CA-G.R. SP No. 50322 on the alleged failure to file its appeal and post its appeal bond with the NLRC within the prescribed period.5 [Id., at 14.]

Petitioner insists that both the NLRC and the Court of Appeals erred in relying on the Registry Return Receipt in determining the date of receipt by the petitioner of the decision of the Labor Arbiter. As regards the late posting of the appeal bond, petitioner posits that it did not have to immediately post the appeal bond since it filed a "Motion to Reduce Appeal Bond", in accordance with this Court's ruling in Star Angel Handicraft v. National Labor Relations Commission, 6 [236 SCRA 580 (1994).] where we held:

Under Article 223 of the Labor Code, an appeal to the NLRC from the decisions, awards or orders of the Labor Arbiter must be made "within ten (10) calendar days from receipt of such decisions, awards or orders." Under Section 3(a) of Rule Vi of the New Rules of procedure of the NLRC, the appeal fees must be paid and the memorandum of appeal must be filed within the ten-day reglementary period.

Neither the Labor Code not its implementing rules specifically provide for a situation where the appellant moves for a reduction of the appeal bond.

Inasmuch as in practice the NLRC allows the reduction of the appeal bond upon motion of appellant and on meritorious grounds, it follows that a motion to that effect may be filed within the reglementary period for appealing. Such motion may be filed in lieu of a bond which amount is being contested. In the meantime, the appeal is not deemed perfected and the labor Arbiter retains jurisdiction over the case until the NLRC acted on the motion and appellant has filed bond as fixed by the NLRC.

x x x

We have, heretofore, relaxed the requirement of the posting of an appeal bond as a condition for perfecting an appeal under Article 223 of the Labor Code. x x x.

The petition is without merit.

We find no such reversible error in the decision of the Court of Appeals as it is in accord with the existing law and jurisprudence.

The Court of Appeals correctly ruled that the appeal was filed out of time. As regards the appeal bond, while it is true that petitioner filed a "Motion to Reduce Appeal Bond" in lieu of the appeal, said motion should have been filed within the reglementary period to file the appeal. In this case, petitioner only filed its motion on 13 August 1997, two (2) days after the expiration of the 10-day period for the perfection of its appeal.

IN VIEW OF THE FOREGOING, the Court Resolved to DENY the present petition.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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