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[ G.R. No. 139510. September 8, 1999]

HERMA CORP. vs. CA, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this court dated SEPT 8 1999.

G.R. No. 139510 (Herma Corporation vs. Court of Appeals, National Labor Relations Commission and Benito delos Angeles.)

Respondent Benito de los Angeles filed a complaint for illegal dismissal against petitioner Herma Corporation with the National Labor Relations Commission (NLRC), National Capital Region. On October 29, 1997, the Labor Arbiter found a case for illegal dismissal and rendered a decision against the petitioner. On appeal to the NLRC, the decision was affirmed in a Resolution dated July 17, 1998. The decision was, likewise, affirmed on June 8, 1999 when the case was brought to the Court of Appeals (CA) on a petition for certiorari.

Petitioner received a copy of the CA decision on June 21, 1999. Hence, the instant petition for certiorari before this Court filed fifty-nine (59) days after receipt therefrom.

A petition for certiorari under Rule 65 of the Rules of Civil Procedure is the wrong mode to challenge a decision of the Court of Appeals before this Court, the proper remedy being a petition for review on certiorari under Rule 45 to be files within fifteen (15) days from notice of a judgment.1 [Sections 1 and 2, Rule 45, Rules of Civil Procedure.]

In the instant case, appeal by certiorari under Rule 45 was available to the petitioner, thus, its resort to a petition for certiorari under Rule 65 is unwarranted. Certiorari will lie only if there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law.2 [Jamer vs. NLRC, 278 SCRA 632 (1997).] Certiorari cannot be resorted to as a substitute for the lost remedy of appeal3 [People vs. Court of Appeals, CA-G.R. No. 125164, September 25, 1998.] for the remedies of appeal and certiorari are mutually exclusive and not alternative or successive.4 [Professional Regulation Commission vs. Court of Appeals, 292 SCRA 155 (1998).]

ACCORDINGLY, the instant petition is hereby DISMISSED.

DAVIDE, JR., C.J. and CHAIRMAN, is on official leave.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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