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[G.R. No. 145028. January 31, 2001]

CATALINO M. SELADA, JR. vs. CA et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JAN 31 2001.

G.R. No. 145028 (Catalino M. Selada, Jr., substituted by his wife Lani C. Selada vs. Court of Appeals (Fifteenth Division) and Building Care Corporation.)

Petitioner Catalino M. Selada, Jr. was employed by respondent corporation as a mechanical helper. Respondent Building Care Corporation is a manpower services corporation. As employee thereof, petitioner was assigned to the Asian Development Bank (ADB) in Mandaluyong from April 3, 1991 until June 25 1996.

In November 1995, petitioner was charged with murder and frustrated murder. On June 8, 1996, while petitioner was on leave of absence, he was relieved and recalled from his post at the ADB by respondent corporation. On June 22, 1996, the petitioner was charged with pilfering five (5) kilos of imported rice from the ADB kitchen. Because of the incident, the company conducted an investigation. On July 17, 1996, the respondent company suspended complainant for thirty (30) days from June 25, 1996 until July 25, 1996. After his suspension, he was not given any assignment by the respondent company. On August 7, 1996, or thirteen (13) days after the lapse of his suspension, the petitioner was still not assigned to any work prompting him to file a complaint for illegal dismissal. On August 10, 1996, the respondent company inquired from ADB through a letter whether the petitioner can continue working for it. In reply, the ADB sent a letter to the respondent company which state that it is not prepared to issue a security clearance for Mr. Catalino Selada, Jr.

In a Decision dated April 8, 1998, the Labor Arbiter dismissed the complaint on the ground that it was prematurely filed. ¹ Decision, Labor Arbiter, p. 4, Rollo, p.36.Petitioner then filed an appeal to the National Labor Relations Commission (NLRC). On January 11, 1999, the NLRC set aside the decision of the Labor Arbiter ruling that while, at first glance, it appears that the case has been prematurely filed, the factual circumstances reveal the respondent company's "prominent intention to ease out the complainant (herein petitioner." ² Decision, National Labor Relations Commission, p. 5; Id., at 51.The NLRC denied the motion for reconsideration filed by respondent corporation. On June 23, 1999, respondent corporation, filed a petition for certiorari with the Court of Appeals. On February 10, 2000, the Court of Appeals rendered a Decision setting aside the decision of the NLRC and reinstating the decision of the Labor Arbiter on the ground that the petitioner was merely placed on an "off detail" or "floating status." ³ Decision, Court of Appeals, p. 4; Id. at 26.On March 23, 2000, petitioner filed a motion for reconsideration. Unfortunately, on July 10, 2000, the petitioner was shot to death. ⁴ Certificate of Death, Annex "M" of the petition, pp. 1-2; Id., at 91-92.On July 25, 2000, the Court of Appeals in a resolution denied the motion for reconsideration filed by petitioner the copy of which was received by petitioner's counsel on August 7, 2000. On October 6, 2000, petitioner, now substituted by his surviving spouse, Lani C. Selada, filed the instant petition for certiorari under Rule 65.

The petition must be dismissed.

The petitioner pursued the wrong remedy. It is axiomatic that the special civil action of certiorari is not and cannot be used as a substitute for an appeal, where the latter remedy is available. ⁵ National Irrigation Administration v. Court of Appeals, 318 SCRA 255, 264 (1999); Alba v. Nitorreda, 254 SCRA 273 (1996); Hipolito v. Court of Appeals, 230 SCRA 97 (1994).Thus, since the Court of Appeals had jurisdiction over the petition under Rule 65, any alleged error committed by it in the exercise of its jurisdiction would be errors of judgment which are reviewable by a timely appeal and not by a special civil action of certiorari. If the aggrieved party fails to do so within the reglementary period, and the decision accordingly becomes final and executory, he cannot avail himself of the writ of certiorari, his predicament being the effect of his deliberate inaction. Rule 45 is clear that decisions, final orders or resolutions of the Court of Appeals in any case, i.e., regardless of the nature of the action or proceedings involved, may be appealed to this Court by filing a petition for review, which would be but a continuation of the appellate process of the original case. ⁶ Ibid .

In the instant case, the assailed decision of the Court of Appeals promulgated on February 10, 2000 was received by petitioner through counsel on March 13, 2000 while the resolution denying the motion fore reconsideration of the decision dated February 10, 2000, was received by him on August 7, 2000. ⁷ Petition for Certiorari, pp. 1-2; Rollo, pp. 3-4.Hence, petitioner, under Rule 45, had fifteen (15) days from the denial of the motion for reconsideration or until August 22, 2000 within which to perfect his appeal. However, petitioner filed the petition for certiorari only on October 6, 2000, which is sixty (60) days from his receipt of the resolution dated July 25, 2000.

Even if we were to overlook the procedural infirmity in the petition, still the same should fail for failure of petitioner to show grave abuse of discretion on the part of the respondent court. As correctly observed by the Court of Appeals, the complainant was prematurely filed since the petitioner was merely in an "off-detail" or "floating status," thus:

x x x Temporary "off detail" is not equivalent to dismissal. In security parlance, it means waiting to be posted. (TSN, January 14, 1980, p. 35). It is recognized fact that security guards employed in a security agency may be temporary inactivity should continue only for six months. Otherwise, the security agency concerned could be liable for constructive dismissal under Article 287 (now Article 286) of the Labor Code (see Agro case, supra). x x x (Superstar Security Agency, Inc. v. NLRC, 184 SCRA 74, 77 [1990]). ⁸ Decision, Court of Appeals, p. 4, Rollo, p. 26.

At the time of filing of the complaint, the petitioner was off detail merely for thirteen (13) days. For this reason, it would be premature to consider him to have been constructively dismissed.

IN VIEW WHEREOF, the petition is DISMISSED.

Very truly yours,

(Sgd.)VIRGINIA ANCHETA-SORIANIO

Clerk of Court

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