Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 143726             February 23, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs.LETICIA SAGAYAGA, ALMA SO, VICENTE SO YAN HAN and ORLANDO BURGOS, accused.LETICIA SAGAYAGA, appellant.

D E C I S I O N

CALLEJO, SR., J.:

This is an appeal from the Decision1 of the Regional Trial Court of Manila, Branch 35, convicting the appellant Leticia Sagayaga of large scale illegal recruitment as defined in Section 6, Republic Act No. 8042 and sentencing her to suffer life imprisonment.

The Indictment

The appellant was charged with large scale illegal recruitment in an Information, the accusatory portion of which reads:

That during the period from October 1997 to December 1997 and sometime prior or subsequent thereto, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, conspiring, confederating and helping each other and representing themselves to have the power, capacity and lawful authority to deploy complainants as factory workers in Taiwan, did then and there willfully, unlawfully and feloniously recruit and promise employment to ELMER JANER, ERIC FAROL and ELMER RAMOS for and in consideration of amounts ranging from P70,000.00 to P75,000.00 which they paid to said accused, without the latter having deployed and/or reimbursed complainants of their payments despite demands, to the damage and prejudice of said complainants.

CONTRARY TO LAW.2

Only the appellant was arrested, duly arraigned, and, with the assistance of counsel, pleaded not guilty to the crime charged. The other accused remained at large.

The Case for the Prosecution

As culled by the Office of the Solicitor General, the facts which triggered the case in the trial court are as follows:

Re: Elmer Janer

Sometime in the last week of October 1997, Elmer Janer went to the office of Alvis Placement Service Corporation located at AP Building 1563 F. Agoncillo St., corner Pedro Gil St., Ermita, Manila, to apply for overseas employment as factory worker in Taiwan (pp. 4, 5 and 14, TSN, September 7, 1999). Appellant Leticia Sagayaga, after personally receiving Elmer's application, required him to submit the necessary documents (p. 5, TSN, September 7, 1999).

Appellant further asked Elmer to pay seventy-five thousand pesos (P75,000.00) as placement fee (Id.). Elmer paid the said fee to appellant in three (3) installments, the first, on November 5, 1997, in the amount of twenty-five thousand pesos (P25,000.00); the second, on November 13, 1997, in the amount of five thousand pesos (P5,000.00); and the third, on November 19, 1997, in the amount of forty-five thousand pesos (P45,000.00). All the payments were made inside Alvis Placement Agency (p. 6, id.).

As required, Elmer also had his medical examination at the Angeles Medical Clinic, the result of which confirmed that he was fit to work (p. 9, Ibid.). Thereafter, he was told to wait for the arrival of the employer. After seven (7) months, no employer arrived. Tired of waiting, Elmer demanded that he be refunded of his money (Id.). Despite appellant's promises to pay, Elmer was not refunded of his money.

Exasperated, Elmer asked appellant for a promissory note, which appellant executed, promising to pay Elmer seventy-five thousand (P75,000.00) on May 6, 1998 (pp. 10 and 11, TSN, September 7, 1999). In said promissory note, appellant designated herself as the assistant general manager of the placement agency (Id.). When appellant failed to refund the amount to Elmer on the date stated in the promissory note, the latter went to the Philippine Overseas Employment Administration (POEA) and filed a sworn complaint against appellant (p. 11, TSN, September 7, 1999).

Re: Testimony of Eric Farol

On November 20, 1997, Eric Farol first met appellant at Alvis Placement Service Corporation when he applied for an overseas job in Taiwan as a plastic factory worker (pp. 3-4, TSN, September 20, 1999). Appellant and her co-accused Vicente So Yan Han discussed with Eric about the latter's job application (Id.). They required Eric to submit to them his passport, National Bureau of Investigation (NBI) clearance, medical clearance and to pay seventy-five thousand pesos (P75,000.00) as placement fee (Id.). Eric submitted all the aforestated requirements and paid the seventy-five thousand pesos to appellant in two (2) installments, for which the latter issued receipts affixing her signature thereon (pp. 5-9, TSN, September 20, 1999). Appellant then promised Eric that he will be leaving for Taiwan before Christmas of 1997. Failing to fulfill her promise, appellant and Vicente So Yan Han told Eric to wait up to the month of January 1998 (pp. 10 and 11, Ibid.). When appellant failed to comply with her commitment to send Eric to Taiwan in

1

January 1998, Eric demanded from appellant the refund of his money (pp. 11 and 12, Ibid.). Appellant then issued to him a check dated February 5, 1998, affixing her signature thereon, for the amount of seventy-two thousand five hundred pesos (P72,500.00). But when Eric presented the check to the drawee bank for payment, the same was dishonored by reason: "ACCOUNT CLOSED" (pp. 11-14, TSN, September 20, 1999).

Insistent that he be refunded of his money, Vicente So Yan Han gave him cash amounts on different dates: February 6, 1998 - - five thousand pesos; February 7, 1998 - - five thousand pesos; and February 17, 1998 - - one thousand pesos (pp. 14-18, TSN, September 20, 1999). Eric was told to return on April 4, 1998 for the full payment of the refund. However, when Eric went back on the first week of April, appellant gave him a letter that the full refund of his money would be given on April 30, 1998 (p. 19, Ibid). Eric returned to appellant on April 30, 1998, but still, appellant failed to refund the money (p. 20, Id.).

On May 8, 1998, Eric filed a complaint against appellant and Vicente So Yan Han at the POEA (pp. 20-21, TSN, September 20, 1999).

Re: Elmer Ramos

Om September 27, 1997, Elmer Ramos went to the office of Alvis Placement Services Corporation to apply for overseas employment as factory worker in Taiwan (pp. 8 and 9, TSN, September 27, 1999). Initially, he took up his application with Vicente So Yan Han who required him to submit his passport, NBI and medical clearances and to pay seventy thousand pesos (P70,000.00) as placement fee (pp. 10 and 11, TSN, September 27, 1999). Elmer submitted the aforestated requirements and paid the placement fee in two (2) installments: twenty thousand pesos (P20,000.00) - - paid to appellant and Vicente So Yan Han on October 22, 1997; and fifty thousand pesos (P50,000.00) - - paid to Vicente So Yan Han on November 12, 1997 (pp. 11-15, TSN, September 27, 1999). Vicente So Yan Han then assured Elmer that he would be included for deployment in the first batch on the first week of December 1997 which, however, did not materialize (pp. 19 and 20, TSN, September 27, 1997). Elmer decided to withdraw his application. The documents submitted were returned to Elmer but not the placement fee he paid (pp. 21 and 22, TSN, September 27, 1999). Instead, appellant issued a check dated February 5, 1998 for the amount of seventy thousand pesos (P70,000.00) (p. 22, Id.). When Elmer encashed the check with the bank, it was dishonored by reason: "closed account" (p. 23, Ibid.).

On May 6, 1998, Elmer went back to the office of Alvis Placement Service Corporation to demand the refund of his money. Elmer discussed the matter with appellant, but the latter failed to return Elmer's money. The next day (May 7, 1998), Elmer went to the POEA and filed a sworn complaint against appellant and Vicente So Yan Han (pp. 25 and 26, TSN, September 27, 1999). On May 9, 1998, Elmer again tried to get a refund from appellant, but the latter only issued a promissory note assuring Elmer payment of the seventy thousand pesos on May 14 and 15, 1998 at 3:00 o'clock in the afternoon (pp. 27 and 28, Ibid.). On May 15, 1998, appellant gave Elmer the amount of only five thousand pesos (P5,000.00) (p. 29, Ibid.).3

The Case for the Appellant

The appellant restates her case as follows:

On different dates in 1997, the three (3) complaining witnesses in this case (Elmer Ramos, Elmer Janer and Eric Farol) filed separate applications for job placement as factory workers in Taiwan with ALvis Placement Services Corporation, with business address at Rm. 507, AP Bldg., 1563 F. Agoncillo cor. Pedro Gil Sts., Ermita, Manila[,] where the appellant Leticia Sagayaga was then working as corporate treasurer.

Elmer Ramos filed his application sometime in September 1997 with the corporation, through accused-at-large Vicente So Yan Han. It was the same Vicente So Yan Han who asked him to submit the required documents (NBI and medical clearances, etc.), and to pay the amount of P70,000.00 as placement fee. He submitted the required documents, and paid the placement fee in two (2) installments as follows: P20,000.00 was paid by him on 22 October 1997 to appellant Letecia Sagayaga and Vicente So Yan Han on the office of the corporation; and P50,000.00 was paid by him on 12 November 1997 to Vicente So Yan Han. Then So Yan Han informed him that he would be deployed in Taiwan in the first week of December 1997. The promised deployment or job placement never came. He then decided to withdraw his application and get back the documents he submitted and the money he had paid. He was issued a check for the fee he had paid but the check was dishonored by the bank for the reason "account closed." Failing to get his money ba[c]k, he filed a complaint with the Philippine Overseas Employment Administration where he executed a "Sinumpaang Salaysay" on 7 May 1998.

Elmer Janer filed his job placement application with Alvis Placement Services Corporation in the last week of October 1997. Similarly, he was required to submit the necessary documents and to pay the amount of P75,000.00 as placement fee. He submitted the requisite documents and paid the placement in three (3) installments, as follows: He paid P25,000.00 on 5 November 1997; P5,000.00 on 13 November 1997; and P45,000.00 on 19 November 1997. Thereafter, he was asked to wait for 7 months for his employer to arrive. No employer arrive[d]. He decided to withdraw his application and asked to be reimbursed the money he had paid. Appellant Leticia Sagayaga gave him instead a "promissory note" indicating that the amount of P75,000.00 will be paid to Elmer Janer on 6 May 1998. When no payment was made to him as promised, he filed a complaint with the Philippine Overseas Employment Administration and where he executed a "Sinumpaang Salaysay" on 13 May 1998.

Eric Farol filed his job placement application with Alvis Placement Services Corporation on 20 November 1997. After submitting the required documents, he paid the placement fee of P75,000.00 in two (2) installments as follows: He paid the first installment of P15,000.00 on 12 December 1997; and the balance of P60,000.00 was paid by him on 16 December 1997. The appellant Leticia Sagayaga promised that he would be able to leave for Taiwan before Christmas of 1997. When he was not able to leave for Taiwan before the end of 1997, he was asked to wait until January 1998. When he failed to leave as promised, he decided to withdraw his application and asked that he be refunded the amount of P75,000.00 he had paid as placement fee. The check given to him by the appellant bounced for the reason "account closed." Forthwith, Vicente So Yan Han paid

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him on different dates the amounts of P5,000.00 on 6 February 1998, another P5,000.00 on 7 February 1998, and P1,000.00 on 17 February 1998. And as he was not refunded the full amount of the fee paid by him, he filed a complaint with the Philippine Overseas Employment Administration and executed a "Sinumpaang Salaysay" on 7 May 1998.

As supplied by the unrebutted testimony of the appellant, the persons who had effective and actual control, management and direction of the business and transactions of Alvis Placement Services Corporation were the accused-spouses Vicente So Yan Han and Alma So. As Treasurer of the corporation, her duties were limited to receiving money or fees paid to the agency by applicants and to deposit the same in the bank in the name and for the account of the corporation. Although she (appellant) received money from the complainants Elmer Janer and Eric Farol, the same was deposited by her with the bank under the account of the corporation. And if ever she signed promissory notes in behalf of the corporation and issued checks to the complainants, she did so upon the instruction and assurance of accused-spouses So Yan Han and Alma So that said notes and checks would have sufficient funds on their due dates. And said checks and notes were never paid because the accused-spouses disappeared and left for unknown addresses.4

After trial, the trial court rendered judgment convicting the appellant of the crime charged, the dispositive portion of which reads:

WHEREFORE, judgment is rendered pronouncing accused LETICIA SAGAYAGA guilty beyond reasonable doubt of illegal recruitment in large scale and sentencing said accused to suffer the penalty of LIFE IMPRISONMENT and to pay a fine of P750,000.00, and the costs.

The accused is further ordered to refund to Elmer Janer the sum of P75,000.00; to Eric V. Farol the amount of P61,500.00; and to Elmer Ramos the amount of P65,000.00.

SO ORDERED.5

The appellant assails the decision of the trial court contending that:

- I -

THE LOWER COURT SERIOUSLY ERRED IN HOLDING THAT "NO WEIGHT CAN BE GIVEN TO THE CONTENTION OF THE ACCUSED THAT SHE IS NOT CRIMINALLY LIABLE BECAUSE SHE HAD NO PARTICIPATION IN THE OPERATION OF THE ALVIS PLACEMENT SERVICE CORPORATION, AND SHE HAD NO KNOWLEDGE ABOUT ITS RECRUITMENT ACTIVITIES."

- II -

THE LOWER COURT SERIOUSLY ERRED IN HOLDING THAT AS TREASURER OF ALVIS PLACEMENT SERVICE CORPO[R]ATION, THE ACCUSED-APPELLANT "WAS

IN CHARGE (OF) THE MANAGEMENT AND CONTROL OF THE FINANCIAL AFFAIRS AND RESOURCES OF THE CORPORATION."

- III -

THE LOWER COURT SERIOUSLY ERRED IN HOLDING THAT AS THE VICE-PRESIDENT/TREASURER AND ASSISTANT GENERAL MANAGER OF ALVIS PLACEMENT SERVICE CORPORATION, THE ACCUSED-APPELLANT WAS A TOP RANKING OFFICER OF SAID CORPORATION, WITH AUTHORITY TO PARTICIPATE DIRECTLY IN THE CONTROL, MANAGEMENT OR DIRECTION OF ITS BUSINESS AFFAIRS.

- IV -

THE LOWER COURT SERIOUSLY ERRED IN HOLDING THAT ACCUSED-APPELLANT WAS GUILTY OF ILLEGAL RECRUITMENT "IN LARGE SCALE" AND IN SENTENCING HER TO SUFFER THE PENALTY OF "LIFE IMPRISONMENT."6

The appellant avers that she is not criminally liable for the crime charged because the prosecution failed to prove that she had a direct or actual control, management or direction of the business and recruitment activities of the Alvis Placement Services Corporation (APSC). She asserts that she had no knowledge of the recruitment activities of APSC and had no participation whatsoever in its operation. In dealing with the private complainants, she was merely performing routinary office work as a mere employee. Her participation as an employee of APSC with respect to the employment application of Elmer Ramos for Taiwan was to receive his placement fee of P20,000.00. Hence, the appellant avers, she cannot be held criminally liable for illegal recruitment in large scale. If, at all, she can be held liable only with respect to the employment applications of Janer and Farol. Thus, according to the appellant, the trial court erred in sentencing her to life imprisonment.

The appeal has no merit.

Under Section 6 (m) of Rep. Act No. 8042,7 illegal recruitment may be committed by any person, whether a non-licensee, non-holder of authority, licensee or holder of authority, thus:

(m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault....8

Under the last paragraph of the said section, those criminally liable are the principals, accomplices and accessories. In case of a juridical person, the officers having control, management or direction of the business shall be criminally liable.

In this case, the appellant, as shown by the records of the POEA, was both the APSC Vice-President-Treasurer and the Assistant General Manager. She was a high corporate officer who had

3

direct participation in the management, administration, direction and control of the business of the corporation. As the trial court aptly declared in its decision:

Again, no weight can be given to the contention of the accused. The terms "control, management or direction" used in the last paragraph of Section 6 of Republic Act No. 8042 broadly cover all phases of business operation. They include the aspects of administration, marketing and finances, among others.

From the records of the POEA, the accused appears as the Vice President (V.P.)/Treasurer of the Alvis Placement Service Corporation (Exhibit A). Moreover, in the promissory note dated April 30, 1998 (Exhibit K), which the accused issued to Elmer Janer, she designated her position in the said corporation as its "Asst. General Manager" (Exhibit K-1). Undoubtedly, the positions of vice-president, treasurer, and assistant general manager are high ranking corporate positions in any corporate body. These positions invest on the incumbent the authority of managing, controlling and directing the corporate affairs.

The claim of the accused that her designation in the certification of the POEA (Exhibit A) as the vice-president of Alvis Placement Service Corporation has surprised her because, according to her, the vice-president was Vicente So Yan Han (TSN, Mar. 13, 2000, pp. 16-17), hardly inspires belief. If this were true, she would have no difficulty in securing from the POEA an authenticated copy of the list of all officials of the corporation which they were required to file with the said Office. For no stated reason, however, the defense omitted to secure such list and submit it to this Court.

At any rate, the accused has expressly admitted in the course of her testimony that she was at the time the Treasurer of their recruitment agency. As such she was in charge of the management and control of the financial affairs and resources of the corporation. She was in charge of collecting all its receivables, safely keeping them, and disbursing them. She testified that it was part of her duties to receive and collect the monies paid by applicants (TSN, Mar. 13, 2000, p. 5). Her disbursing authority has been clearly demonstrated by her co-signing the checks Exhibits D-2 and G.9

The appellant is guilty of illegal recruitment as a principal by direct participation, having dealt directly with the private complainants. In fact, she received their placement fees and even signed, in her capacity as the Assistant General Manager of the APSC, the promissory note on May 6, 1998 in favor of private complainant Elmer Janer, obliging the APSC to pay to him the amount of P75,000.00. However, despite the private complainants' demands, their placement fees were not reimbursed in full. In People vs. Cabais,10 we held thus:

Accused-appellant contends that she was not involved in recruitment but was merely an employee of a recruitment agency. An employee of a company or corporation engaged in illegal recruitment may be held liable as principal, together with his employer, if it is shown that he actively and consciously participated in illegal recruitment. Recruitment is "any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That any person or

entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement…11

In this case, the overwhelming evidence on record indubitably shows that the appellant engaged in illegal recruitment. As aptly ruled by the trial court:

The first line of defense invoked by the accused to exonerate herself of the criminal charge is clearly and conclusively without merit. There is no dispute about the fact that the three complainants engaged (sic) the Alvis Placement Service Corporation, a recruitment agency duly authorized by the POEA wherein the accused was one of its top officers, to deploy them as factory workers in Taiwan. Admittedly, they incurred expenses, designated as placement fees, in connection with their documentation and processing for purposes of their de[pl]oyment. Elmer Janer paid to the accused, who received the payment, the total amount of P75,000.00 for his placement fee (Exhibit J; TSN, Sept. 7, 1999, pp. 6-8). Eric Farol paid also to the accused a similar amount for the same purpose (Exhibit E; TSN, Sept. 20, 1999, pp. 5-8). Elmer Ramos paid to the agency the sum of P70,000.00 of which P20,000.00 was received by the accused, and the balance of P50,000.00 was received by Vicente So Yan Han (Exhibit F; TSN, Sept. 27, 1999, pp. 10-18). In the course of her testimony, the accused admitted that she received these payments by the complainants of their placement fees.

However, the expected deployment of the complainants as factory workers in Taiwan, or even elsewhere, did not take place, without any fault on their part. There is absolutely no evidence reflecting that the failure to deploy them was imputable to their faults.

The evidence has satisfactorily established that the complainants have not been reimbursed the full amount of their placement fees, notwithstanding their persistent demands. Not a single peso of his placement fee was returned to Elmer Janer. Instead, on April 30, 1998, the accused executed a promissory note (Exhibit K) in behalf of the Alvis Placement Service Corporation, undertaking to pay Elmer Janer the amount of P75,000.00 on May 6, 1998. However, the amount covered by the promissory note was not paid (TSN, Sept. 7, 1999, p. 11).

On the other hand, although Eric Farol and Elmer Ramos were reimbursed of P11,000.00 and P5,000.00 in cash, respectively, and the balance of their placement fees were covered by checks (Exhibits D-2 and G), these transactions did not relieve the accused of her criminal liability. The reimbursement contemplated by paragraph (m) of Section 6 of Republic Act No. 8042 is full reimbursement of the expenses incurred by the worker in connection with the documentation and processing of his deployment. To rule otherwise would be offensive to the administration of justice, as illegal recruiters could easily escape criminal liability with impunity by simply returning an insignificant portion of the amount they collected from the worker. The checks drawn and issued by the accused to these two complainants, however, did not produce the effect of payment, for they were both dishonored by the drawee bank on the ground of closed account. Pursuant to the second paragraph of Article 1249 of the Civil Code, "(t)he delivery of promissory notes payable to order, or bills of exchange or other mercantile documents shall produce the effect of payment only when they have been cashed, or when through the fault of the creditor they have been impaired."12

4

The appellant's bare denial of her involvement in the management, administration, control and operation of APSC cannot prevail over her judicial admissions, the positive testimonies of the private complainants and the documentary evidence adduced by the prosecution.

Section 6 of Rep. Act No. 8042 provides that illegal recruitment shall be considered an offense involving economic sabotage if committed in large scale, viz, committed against three (3) or more persons individually or as a group, the imposable penalty for which is life imprisonment and a fine of not less than P500,000.00 nor more than P1,000,000.00.13 In this case, there are three private complainants, namely, Elmer Janer, Eric Farol and Elmer Ramos. The trial court, thus, correctly convicted the appellant of large scale illegal recruitment and sentenced her to suffer life imprisonment.

IN LIGHT OF ALL THE FOREGOING, the appeal is DENIED. The Decision of the Regional Trial Court of Manila, Branch 35, is AFFIRMED. Costs against the appellant.

SO ORDERED.

5

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. Nos. 149014-16             February 5, 2004

PEOPLE OF THE PHILIPPINES, appellee vs.ROSE DUJUA (at large); EDITHA S. SING (at large); GUILLERMO "WILLY" SAMSON (at large); RAMON SAMSON DUJUA, accused,RAMON SAMSON DUJUA, appellant.

D E C I S I O N

TINGA, J.:

Ramon Dujua appeals from the decision of the Regional Trial Court (RTC of Manila, Branch 51), finding him guilty of Illegal Recruitment in Large Scale and of two counts of estafa.

Ramon, his mother Rose Dujua, his aunt Editha Singh, and his uncle Guillermo "Willy" Samson were charged in Criminal Case No. 92-108910, with Illegal Recruitment in Large Scale in an Information alleging —

That in or about and during the period comprised between August, 1991 and March 14, 1992, inclusive, in the City of Manila, Philippines, the said accused, conspiring and confederating together and helping one another, being then private individuals and representing themselves to have the capacity to contract, enlist, and transport Filipino workers for employment abroad, did then and there willfully and unlawfully, for a fee, recruit and promise employment/job placement to the following applicants, namely: Jaime Cabus y Co, Beldon S. Caluten, Fernando P. Cunanan, Paulino B. Correa, Martin D. Nacion, Romulo Partos y Tuangco, Jesus B. Briagas, Arturo Torres, Roberto A. Perlas, Ronald Alvarez and Vivencio L. Batiquin without first having secured the required license or authority from the Department of Labor as required by law.

CONTRARY TO LAW.1

The four were also charged in Criminal Case Nos. 92-108912 and 92-108920 with separate counts of estafa committed against Roberto Perlas and Jaime Cabus. Except for the date of the commission, the name of the victim, and the amount involved, the two Informations in the estafa cases make similar allegations against the accused. The Information in Criminal Case No. 92-108912 states:

That on or about October 28, 1991, in the City of Manila, Philippines, the said accused conspiring and confederating together and helping one another, did then and there willfully, unlawfully and

feloniously defraud Roberto A. Perlas in the following manner, to wit: the said accused, by means of false manifestations and fraudulent representation which they made to said Roberto A. Perlas to the effect that they had the power and capacity to recruit and employ him abroad and could facilitate the processing of the pertinent papers if given the necessary amount to meet the requirements thereof, and by means of other similar deceits, induced and succeeded in inducing said Roberto A. Perlas to give and deliver, as in fact gave and delivered to said accused the amount of P17,000.00 on the strength of said manifestations and representations, said accused well knowing that the same were false and fraudulent and were made solely to obtain, as in fact they did obtain the amount ofP17,000.00 which amount once in possession, with intent to defraud they, willfully, unlawfully and feloniously misappropriated, misapplied and converted to their own personal use and benefit, to the damage and prejudice of said Roberto A. Perlas in the aforesaid amount of P17,000.00, Philippine currency.

CONTRARY TO LAW.2

That in Criminal Case No. 92-108920 reads:

That in or about and during the comprised [period] between October 1991 and March 14, 1992, inclusive, in the City of Manila, Philippines, the said accused conspiring and confederating together and helping one another did then and there willfully, unlawfully and feloniously defraud Jaime Cabus y Co in the following manner, to wit: the said accused, by means of false manifestations and fraudulent representation which they made to said Jaime Cabus y Co to the effect that they had the power and capacity to recruit and employ him abroad and could facilitate the processing of the pertinent papers if given the necessary amount to meet the requirements thereof, and by means of other similar deceits, induced and succeeded in inducing said Jaime Cabus y Co to give and deliver, as in fact he gave and delivered to said accused the amount of P47,000.00 on the strength of said manifestations and representations, said accused well knowing that the same were false and fraudulent and were made solely to obtain, as in fact they did obtain the amount of P47,000.00 which amount once in possession, with intent to defraud they, willfully, unlawfully and feloniously misappropriated, misapplied and converted to their own personal use and benefit, to the damage and prejudice of said Jaime Cabus y Co in the aforesaid amount ofP47,000.00, Philippine currency.

CONTRARY TO LAW.3

Of the four accused, only Ramon Dujua was arrested and arraigned. His mother, aunt and uncle remain at large. Ramon entered a plea of not guilty to each of the charges, whereupon trial commenced. While the Information for illegal recruitment named several persons as having been promised jobs by the accused, only four of them testified.

In August 1991, private complainant Beldon Caluten, accompanied by his cousin, went to the accused’s office, the World Pack Travel and Tours located in Suite 28, Manila Midtown Arcade, Adriatico Street, Ermita, Manila.4 Upon Beldon’s inquiry, Ramon Dujua said that he sends applicants abroad and gave Beldon an application form. Beldon filled up the form and submitted it to Ramon, who told him that he must pay a processing fee and make an advance payment.5

6

Beldon was promised work as a factory worker in Japan.6 On August 15, 1991, he paid Ramon the processing fee of P1,000.00 and, the next day, an advance payment of P10,000.00.7 Beldon paid Ramon an additionalP15,000.00 on August 21, 1991 as placement fee.8 For these payments, Beldon was issued receipts9 signed by Ramon’s mother Rose Dujua.10 On the last week of August 1991, Beldon gave another P10,000.00 to Benita Valdes, another applicant in the accused’s office, but no receipt was issued for the amount.11 Finally, Beldon gaveP41,000.00 to Rose Dujua but when Beldon asked for a receipt for the latter payment, Rose said she already gave him one.12

When, despite such payments, the promise to send Beldon to work in Japan remained unfulfilled, Beldon asked Ramon to give him back his money.13 Beldon never recovered his payments, however, prompting him and his fellow applicants to file a complaint at the National Bureau of Investigation (NBI).14

Private complainant Jaime Cabus was introduced to Ramon on the first week of October 1991 by Jaime’s neighbor who worked in front of the accused’s office.15 Ramon said they were deploying workers to Taiwan and that if Jaime could afford the placement fee of P45,000.00, plus the passport and processing fee, he could leave for Taiwan in a few weeks.16

The following day, Jaime gave Ramon P2,000.00 at the latter’s office, the World Pack Travel and Tours at Suite 28, Manila Midtown Arcade, Adriatico St., Ermita, Manila, for the processing of his passport.17 Jaime was not issued a receipt for his payment but was assured that the passport’s processing would take just two days.18Indeed, Jaime was able to see his passport.19

In the latter part of October 1991, Jaime paid P10,000.00 as down payment for the placement fee.20 Jaime gave Ramon the sum inside the accused’s office.21 On March 16, 1994, when they were about to leave for the airport Jaime handed Rose P47,000.00 representing the balance of the placement fee.22

At the airport, Ramon told Jaime that the tickets were still being processed.23 Feeling that his and the other thirty applicants’ flight would not push through, Jaime asked for a refund. Ramon and his mother refused to pay him back24 because the money was supposedly going to be used in the processing of their tickets.25 Rose assured him, though, that they would be able to leave the following day.26

The flight and the job never materialized, however, so after a week Jaime decided to file a complaint with the NBI.27

Another complainant, Roberto Perlas, was introduced to Ramon Dujua by his compadre, complainant Jaime Cabus, in the first week of October 1991.28 Roberto went to the accused’s office at Midtown Plaza in Ermita to apply for a job abroad.29 Ramon told him that they were deploying factory workers to Taiwan.30

Convinced, Roberto accomplished the bio-data form given by Ramon.31 Roberto also paid a total of P30,000.00 as placement fee.32 On separate occasions, Roberto gave Ramon P7,000.00 and P10,000.00, for which he was issued the corresponding receipts by Rose Dujua.33 The balance

of the P30,000.00 he later gave to Rose, who did not issue a receipt therefor because at the time a lot of people were milling about.34

Notwithstanding payment, Roberto was not able to leave for Taiwan.35 Rose and Ramon kept on telling him that he would leave the following day but Roberto waited in vain.36 The money he gave was never refunded.37 Finally, he decided to file a complaint against the accused.38

In August 1991, private complainant Romulo Partos was introduced to Ramon Dujua at the latter’s office at the World Pack Travel and Tours in the Manila Midtown Arcade, Adriatico St., Manila, by one Baby Ramos.39 Baby, like Romulo, was an applicant for deployment to Taiwan.40 Ramon told Romulo about "the work in Taiwan and in Japan." Ramon said that Romulo would get the job he was applying for and leave within a week if he paidP45,000.00.

Romulo and his wife Melodea Villanueva then decided that Romulo would withdraw his application and that Melodea would be the one to leave for abroad.41 The amount of P45,000.00 that Romulo was supposed to pay was changed to P25,000.00, payable upon application.42 Romulo also had to pay P50,000.00 upon the release of the visa and another P75,000.00 upon departure.43

Romulo paid Ramon P18,000.00 for his wife’s application, and Rose Dujua issued the corresponding receipt.44Subsequently, Romulo gave another P7,000.00 to complete the required P25,000.00.45 No receipt was issued for the latter payment.46

Romulo’s wife raised another P50,000.00, which was given to Rose, for her Japanese visa.47 As nothing came about of the employment promised, Romulo decided to file a complaint with the NBI.48

The prosecution also presented a Certification49 dated March 27, 1998, issued by Hermogenes C. Mateo, Director II, Licensing Branch of the POEA, stating that Ramon Dujua is not licensed or authorized by the POEA to recruit workers abroad. Another Certification,50 of even date shows that neither is the World Pack Travel and Tours authorized to recruit workers abroad.

The accused Ramon Dujua admitted having met private complainants51 but denied that he was a recruiter.52 He claimed that he was a mere janitor, messenger and errand boy of the World Pack Travel and Tours, where he worked from October 28, 1991 up to June 20, 1992.53 The company is owned by his aunt, Editha Singh, and managed by his mother Rose Dujua.54

While admitting that he did not have a license to recruit,55 Ramon acknowledged receiving the money given by complainants but denied knowing what it was for.56 He said, however, that his mother only asked him to count the money.57 He further maintained that he did not sign any receipt relative to the payments made by private complainants.58 The accused claimed that he was being charged only because complainants were angry with his mother.59

Zenaida Perez, who used to work for World Pack Travel and Tours, corroborated Ramon’s claim that he was a janitor/messenger in said office.60

7

On February 28, 2001, the RTC rendered its Decision convicting Ramon Dujua of illegal recruitment in large scale, committed against Jaime Cabus, Beldon Caluten and Roberto Perlas, and of two counts of estafa, committed against Cabus and Perlas. The dispositive portion of the RTC Decision reads:

WHEREFORE, the Court, finding the accused Ramon Dujua guilty beyond reasonable doubt of the offense in Criminal Case 92-108910 which is for Illegal Recruitment for Violation of Art. 38 (a and b) in relation to Art. 39 of PD 442, as amended by PD 1412 and further amended by PD 1920 and PD 2018, hereby sentences him to suffer the penalty of life imprisonment and to pay fine in the amount of P100,000.00. He is further ordered to pay the private complainants a) Jaime Cabus the amount of P47,000.00; b) Benton [sic] C. Caluten the amount ofP26,000.00; and c) Roberto Perlas the amount of P17,000.00. In so far as Romulo Partos is concerned, his case is dismissed. With costs.

With respect to Criminal Case No. 92-108912 and Criminal Case No. 92-108920 involving private complainants Roberto Perlas and Jaime Cabus, respectively, the Court, finding the accused Ramon Dujua guilty beyond reasonable doubt of the crime charged which is for Estafa, hereby sentences him to suffer the indeterminate penalty of two (2) years, eleven (11) months and eleven (11) days of prision correccional as minimum to four (4) years and two (2) months of prision correccional as maximum for each of the cases. Considering that the accused had been ordered to pay private complainant Roberto Perlas the amount of P17,000.00 and private complainant Jaime Cabus the amount of P47,000.00 in Criminal Case No. 92-108910 for Illegal Recruitment they should not be awarded again the said amounts in these Estafa cases. With costs.

Considering that the accused Ramon Dujua is a detention prisoner, he shall be credited in the service of his sentence with the full time during which he has undergone preventive imprisonment.

As against accused Rose Dujua, Editha S. Sing [sic] and Guillermo "Willy" Samson who remained at-large, their cases were archieved [sic] (Order dated November 23, 1992).

SO ORDERED.61

Seeking the reversal of his conviction, Ramon Dujua contends that the prosecution failed to prove beyond reasonable doubt that he committed the crimes of illegal recruitment in large scale and estafa.

The essential elements of the crime of illegal recruitment in large scale are: (1) the accused engages in acts of recruitment and placement of workers defined under Article 13(b) or in any prohibited activities under Art. 34 of the Labor Code; (2) the accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of a license or an authority to recruit and deploy workers, either locally or overseas; and (3) the accused commits the unlawful acts against three or more persons, individually or as a group.62

All three elements have been established beyond reasonable doubt.

First, the testimonies of the complaining witnesses satisfactorily prove that appellant promised them employment and assured them placement overseas. Complainants were firm and categorical. All of them positively identified appellant as the person who recruited them for employment abroad. Their testimonies dovetail each other on material points. There is no adequate showing that any of them was impelled by any ill motive to testify against appellant. Their testimonies were straightforward, credible and convincing. As against the positive and categorical testimonies of the three complainants, appellant’s mere denials cannot prevail.63

It is irrelevant whether or not complainants’ claims are supported by receipts. The absence of receipts in a case for illegal recruitment does not warrant the acquittal of the appellant and is not fatal to the prosecution’s case. As long as the prosecution is able to establish through credible testimonial evidence that the appellant has engaged in Illegal Recruitment, a conviction for the offense can very well be justified.64

Second, appellant did not have any license or authority to recruit persons for overseas work, as shown by the Certification issued by the POEA. Neither did his employer, the World Pack Travel and Tours, possess such license or authority.

Third, it bears clarifying that although Romulo Portos was named as among those recruited by appellant the evidence reveals that Romulo withdrew his application in lieu of which his wife Melodea Villanueva applied for placement with appellant. Villanueva, however, is not named as one of appellant’s victims.

Nevertheless, it has been alleged and proven that appellant undertook the recruitment of not less than three persons, namely, Cabus, Caluten and Perlas.

The RTC, therefore, aptly meted upon appellant the penalty of life imprisonment and to pay a fine of P100,000.00, in accordance with Article 39(a) of the Labor Code.

The following elements of estafa, as defined by Article 315 (2) (a) are also present in this case, to wit: (1) the accused has defrauded the offended party by means of abuse of confidence or by deceit; and (2) as a result, damage or prejudice, which is capable of pecuniary estimation, is caused to the offended party or third person. Appellant misrepresented himself to Jaime Cabus and Roberto Perlas as one who can make arrangements for job placements in Taiwan and Japan and, by reason of such misrepresentations, the two complainants were induced to part with their money, causing them damage.

The RTC, however, erred in imposing upon appellant, for each count of estafa, the penalty of two (2) years, eleven (11) months and eleven (11) days of prision correccional, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. Article 315 of the Revised Penal Code provides that:

ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:

8

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such case, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.

….

2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:

(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or by means of other similar deceits.

In Criminal Case No. 92-108920, the prosecution alleged and proved that appellant defrauded complainant Jaime Cabus in the amount of P47,000.00, which exceeds the sum of P22,000.00. Thus, the penalty prescribed, i.e., prision correccional in its maximum period (4 years, 2 months and 1 day to 6 years) to prision mayor in its minimum period (6 years and 1 day to 8 years), shall be imposed in its maximum period.

The penalty prescribed by Article 315, however, is composed of only two, not three, periods, in which case Article 65 of the Revised Penal Code requires the division into three equal portions the time included in the penalty, forming one period of each of the three portions. Applying this provision, the minimum, medium and maximum periods of the penalty prescribed are:

Maximum - 6 years, 8 months, 21 days to 8 years

Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days

Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days

Thus, the maximum period is 6 years, 8 months and 21 days to 8 years.

Article 315 further states that one year shall be added for each additional P10,000.00 defrauded in excess ofP22,000.00. The amount defrauded, P47,0000.00, less P22,000.00 is P25,000.00, or two additional amounts ofP10,000.00. These two years shall be added to the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor for a total of 8 years, 8 months and 21 days to 10 years of prision mayor.

In imposing a prison sentence for an offense punished by the Revised Penal Code, the Indeterminate Sentence Law requires courts to impose upon the accused an indeterminate sentence.65 The maximum term thereof shall be that which, in view of the attending circumstances,

could be properly imposed under the rules of the said Code.66 In this case, such maximum term is within the period of 8 years, 8 months and 21 days to 10 years of prision mayor.

On the other hand, the minimum term shall be within the range of the penalty next lower to that prescribed by the Code for the offense.67 The penalty next lower to that prescribed by Article 315 is prision correccional in its minimum period (6 months, 1 day to 2 years and 4 months) to prision correccional in its medium period (2 years, 4 months and 1 day to 4 years and 2 months).

Thus, the Court sentences appellant, for the crime of estafa committed against private complainant Cabus, to a minimum period of four (4) years of prision correccional to a maximum period of nine (9) years of prision mayor.

In Criminal Case No. 92-108912, appellant was charged and proven to have defrauded private complainant Perlas in the amount of P17,000.00. Thus, the penalty prescribed shall be imposed in its medium period, or 5 years, 5 months, 11 days to 6 years, 8 months, 20 days, as the amount defrauded does not exceed P22,000.00 and as no aggravating or mitigating circumstances are present. From this period shall be taken the maximum term for purposes of the Indeterminate Sentence Law.

As in the case of the estafa committed against Cabus, the minimum shall be within the range of prision correccional in its minimum period to prision correccional in its medium period.

Accordingly, the Court sentences appellant, for the estafa committed against private complainant Perlas, to a minimum period of four (4) years of prision correccional to a maximum period of seven (7) years of prision mayor.

WHEREFORE, the decision of the court a quo finding appellant Ramon Samson Dujua guilty beyond reasonable doubt of Illegal Recruitment in Large Scale and Estafa is AFFIRMED with the following modifications:

In Criminal Case No. 92-108912 for estafa involving private complainant Roberto Perlas, the Court sentences appellant Ramon Samson Dujua to suffer a minimum period of four (4) years of prision correccional to a maximum period of seven (7) years of prision mayor.

In Criminal Case No. 92-108920, for estafa, involving private complainant Jaime Cabus, the Court sentences appellant Ramon Samson Dujua to suffer a minimum period of four (4) years of prision correccional to a maximum period of nine (9) years of prision mayor.

SO ORDERED.

9

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. NO. 148137            January 16, 2003

PEOPLE OF THE PHILIPPINES, appellee, vs.DOMINGA CORRALES FORTUNA, appellant.

VITUG, J.:

On 29 September 1998, Dominga Corrales Fortuna, herein appellant, was charged with illegal recruitment in large scale under Section 6, paragraph (m), of Republic Act No. 8042, said to have been committed thusly:

"That sometime in the month of July, 1998, in the City of Cabanatuan, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused who is neither a licensee nor holder of authority in the overseas private recruitment or placements activities, did then and there, willfully, unlawfully and feloniously undertake a recruitment activity by inducing and convincing REBECCA P. DE LEON, ANNIE M. NUQUE, NENITA A. ANDASAN, ANGELYN N. MAGPAYO, LINA N. GANOT and EDGARDO C. SALVADOR, that she could secure for them a job in Taiwan, and as a result of such enticement, said Rebecca P. De Leon, Annie M. Nuque, Nenita A. Andasan, Angolan N. Magpayo, Lina N. Ganot and Edgardo C. Salvador, who were interested to have such employment, gave and delivered to the accused the total sum of THIRTY TWO THOUSAND FOUR HUNDRED PESOS (P32,400.00), Philippine Currency, representing medical fees in connection thereof, to the latter’s damage and prejudice as they were not able to get a job in Taiwan through no fault of their own as promised by the accused, who likewise failed to reimburse to herein complainants the aforementioned amount despite repeated demands; that considering that there are six (6) or more complainants prejudiced by the unlawful acts of the accused, the same is deemed committed in large scale and considered an offense involving economic sabotage."1

When arraigned on 29 February 2000, appellant Dominga Fortuna, with the assistance of counsel, pleaded not guilty to the crime charged; trial then ensued.

Taking the witness stand for the prosecution were private complainants Lina Ganot, Nenita Andasan and Angelyn Magpayo.

Lina N. Ganot, Angelyn N. Magpayo, Nenita A. Andasan, Rebecca P. De Leon, Annie M. Nuque and Edgardo L. Salvador met Dominga Fortuna y Corrales in a seminar on "Tupperware" products being then promoted for sale in Cabanatuan City. Fortuna took the occasion to converse with

private complainants, along with some of the attendees, offering job placements in Taiwan. Convinced that Fortuna could actually provide them with jobs abroad, private complainants, on 06 July 1998, each gave her the amount of P5,400.00 to take care of the processing fee for medical examination and other expenses for securing their respective passports. On 13 July 1998, private complainants took the medical examination in Manila. Weeks went by but the promised departure had not materialized. Suspecting that something was not right, they finally demanded that Fortuna return their money. Fortuna, in the meanwhile, went "into hiding." After having later learned that Fortuna had neither a license nor an authority to undertake recruiting activities, Angelyn Magpayo filed a complaint which, in due time, ultimately resulted in the indictment of Fortuna for illegal recruitment. During the preliminary investigation, as well as later at the trial, Fortuna gave assurance to have the money she had received from private complainants returned to them but, except for the amount of P1,250.00 paid to Angelyn Magpayo, Fortuna was unable to make good her promise.

Dominga Fortuna, in her testimony, admitted having attended the seminar on June 1998 where she then met Annie Nuque, Rebecca De Leon, Nenita Andasan, Edgardo Salvador, Angelyn Magpayo and Lina Ganot. During the seminar, she purchased "Tupperware" products from private complainants after she was convinced to be their sub-agent. Initially, she was able to remit payments to private complainants on her sales but, when she failed to make subsequent remittances, she was threatened with criminal prosecution. In order to settle the matter, she executed separate promissory notes. When she again failed to pay, private complainants filed the case for illegal recruitment against her. Originally, there were six private complainants but eventually only three of them pursued the case because the others were finally able to leave for abroad.

In its decision, dated 02 January 2001, the Regional Trial Court, Branch 27, Cabanatuan City, held Dominga Corrales Fortuna guilty of Illegal Recruitment in Large Scale. The trial court held:

"WHEREFORE, the Court finds the accused Dominga Fortuna GUILTY beyond reasonable doubt of Illegal Recruitment in Large Scale and hereby imposes upon her the penalty of life imprisonment and a fine of Five Hundred Thousand (P500,000.00) pesos, as the same involves economic sabotage.

"She is likewise ordered to reimburse five thousand four hundred (P5,400.00) each to Lina Ganot, Nenita Andasan representing the amount they gave to the accused as processing fee and the amount of four thousand one hundred fifty (P4,150.00) pesos in favor of Angelyn Magpayo, as there was a partial restitution during the trial of the original five thousand four hundred (P5,400.00) pesos she delivered to the accused."2

Seeking a reversal of her conviction, appellant Fortuna, in her assignment of errors, would now have the Court conclude that -

"I. The court a quo erred in convicting the accused-appellant on an information wherein the facts alleged therein do not constitute an offense;

10

"II. The court a quo erred in finding that accused-appellant violated Section 6, par. (m) of R.A. 8042 when it did not reimburse the alleged amounts received from private complainants;

"III. The court a quo erred standing its finding that the accused-appellant was guilty of illegal recruitment."3

The appeal is bereft of merit.

The crime of illegal recruitment is committed when, among other things, a person who, without being duly authorized according to law, represents or gives the distinct impression that he or she has the power or the ability to provide work abroad convincing those to whom the representation is made or to whom the impression is given to thereupon part with their money in order to be assured of that employment.4

Verily, the testimony presented at the trial by the complaining witnesses adequately established the commission of the offense.

Testimony of complainant Lina Ganot –

"Q.         Mrs. Witness, where were you in the month of June, 1998?

"A.         At Macatbong, Cabanatuan City, sir.

"Q.         Were you gainfully employed at that time?

"A.         No, sir.

"Q.         On that particular month, June, 1998, having been unemployed at that time, was there ever an occasion that you tried to look for a job?

"A.         Yes, sir, I [tried] to look for a job.

"Q.         Was there ever an occasion that you tried to be a seller of Tupperware products?

"A.         Yes, sir.

"Q.         Please tell us in connection with this intention of yours to sell Tupperware products, did you ever attend a seminar?

"A.         Yes, sir.

"Q.         Where?

"A.         At Burgos Avenue, Cabanatuan City, sir.

"Q.         Have you ever come across this particular name Dominga Corrales Fortuna?

"A.         Yes, sir.

"Q.         And where were you able to meet this particular person?

"A.         At the seminar of the Tupperware, sir.

"Q.         What transpired with respect to this particular meeting?

"A.         She recruited us and told us that she will give us good jobs, sir.

"COURT

"Q.         Where is she now?

"A.         There, sir (witness pointing to a person who, when asked, answered by the name of Dominga Corrales Fortuna).

"FISCAL

"Q.         How was this accused able to relate to you that job placement will be available for you in Taiwan?

"A.         She told me [to give] her P5,400.00 for processing fee and she went to our house and I gave the said amount, sir.

"Q.         Upon hearing this particular proposition, what was your reaction?

"A.         I believe[d] and I thought that I [could] really work, sir.

"Q.         Aside from the processing fee of P5,400.00, were there any other financial matter that was given by you?

"A.         None, sir; when we went to Manila, we shouldered our expenses.

"Q.         When did you go to Manila?

11

"A.         July 13, 1998, sir.

"Q.         What was the purpose why you went there?

"A.         For medical purpose, according to her, sir.

"Q.         And who was with you?

"A.         The accused, sir.

"Q.         Aside from you and the accused, were there any other persons?

"A.         We were accompanied by my co-complainants, sir, aside from the accused."5

Testimony of Angelyn Magpayo -

"COURT:

"Q.         Do you know the accused?

"A.         Yes, Your Honor.

"Q.         Point to her now.

"A.         She’s the one, sir. (Witness pointing to a person whom when asked of her name answered Dominga Fortuna y Corrales.)

"Q.         How did you come to know her?

"A.         I came to know her during the seminar of Tupperware, Your Honor.

"FISCAL MACARAIG:

"Q.         Why did you have to attend this seminar in the selling of Tupperware?

"A.         As an additional business, sir.

"Q.         Could you please tell us, where this seminar [was] being held at that time?

"A.         At Burgos St., Cabanatuan City, sir.

"Q.         And when did you meet the accused for the first time?

"A.         At the seminar in Tupperware, sir.

"Q.         Could you please tell us what transpired during the first meeting with the accused?

"A.         She introduced herself to us, sir.

"Q.         Afterwards, what happened next?

"A.         She conversed with us and asked if we want[ed] to work outside the Philippines, sir.

"Q.         And what was your response to the offer of the accused?

"A.         I said I [was] willing because I already have a passport, sir.

"Q.         Aside from that particular question, what other matters that you and the accused talked [about]?

"A.         She asked me if I [had] P5,400.00 for the processing of necessary papers, sir.

"Q.         And what was your response to this question?

"A.         I said I will raise [the] money, sir.

"Q.         [Were] you able to raise [the] money?

"A.         Yes, sir.

"Q.         When was the appointed time that you [would] have to hand or give the money to the accused?

"A.         July 6, 1998, sir.

"Q.         And were you able to actually give the money, the P5,400.00?

"A.         Yes, sir.

"Q.         Was there a receipt of this particular payment?

12

"A.         None, sir.

"Q.         Could you please tell us why there was no receipt for this particular payment?

"A.         Because I trusted her, sir.

"Q.         And after the payment of P5,400.00 what happened next?

"A.         She brought us to Manila for medical purposes, sir.

"Q.         And what happened thereafter?

"A.         I was not able to get the result of the medical examination, sir.

"Q.         By the way, what country was mentioned to you by the accused where you were going to work?

"A.         Taiwan, sir.

"Q.         And were you able to go to Taiwan?

"A.         No, sir.

"Q.         Could you please tell us why there was a failure in going to Taiwan?

"A.         After the medical examination, she never showed herself, sir."6

Testimony of Nenita Andasan -

"Q.         Do you know a certain Dominga Fortuna y Corrales?

"A.         Yes, sir.

"Q.         In what capacity were you able to know this Dominga Fortuna?

"A.         During the seminar of Tupperware, sir.

"Q.         And what is this seminar all about?

"A.         About selling Tupperware products, sir.

"Q.         And where was this seminar of Tupperware held?

"A.         At Burgos Avenue, Cabanatuan City, sir.

"Q.         Do you know who [was] the one conducting this seminar?

"A.         No, sir.

"Q.         Why did you attend this particular seminar of Tupperware products?

"A.         Because I was invited, sir.

"Q.         How many persons attended that seminar?

"A.         I cannot recall how many persons there were, sir.

"Q.         When was this seminar held?

"A.         In the month of June, 1998, sir.

"Q.         June of what year?

"A.         1998, sir.

"Q.         You mentioned awhile ago that it was during the seminar of Tupperware products that you were able to meet Dominga Fortuna, will you please tell us what transpired during that particular meeting?

"A.         We [had] conversation and then she asked us if we wanted to go abroad, sir.

"Q.         Who was the one [who] asked you that?

"A.         The accused Dominga Fortuna, sir.

"Q.         And what was your particular response?

"A.         I said to her ‘yes,’ sir, because I want[ed] to have a job.

"Q.         Were you the only one [who] was present at the seminar of Tupperware that was offered this job?

13

"A.         Also my co-complainants, sir.

"Q.         What happened afterwards, after you told her that you were interested in working abroad?

"A.         We set the date in order to fix our papers, sir.

"Q.         By the way, were those the only matters told to you by the accused at that point in time?

"A.         She also told us to prepare money needed for that, sir.

"Q.         And how much would that money be to be prepared by you?

"A.         P5,400.00, sir.

"Q.         And did she tell you what this P5,400.00 is all about?

"A.         For processing of papers needed, sir.

"Q.         And when was the time that you had to actually pay or tender this P5,400.00?

"A.         In July, 1998, sir.

"Q.         Were you able to comply with this particular requirement?

"A.         Yes, sir.

"Q.         And when did you actually comply with this requirement?

"A.         On July 6, 1998, sir.

"Q.         To whom did you personally tender this P5,400.00?

"A.         In the house of Mrs. Ganot, sir.

"Q.         And where is the house of this Mrs. Ganot?

"A.         At Macatbong, Cabanatuan City, sir.

"Q.         By the way, who is this Mrs. Ganot?

"A.         She is the one heading us, sir,

"Q.         Do you have knowledge whether this Mrs. Ganot [was] also interested in working abroad?

"A.         Yes, sir.

"Q.         How many were you who were present when you actually tendered the P5,400.00?

"A.         We were six (6), sir.

"Q.         Do you know the names of the others?

"A.         Yes, sir.

"Q.         Will you please tell us the names of those other persons who were present when you actually tender the P5,400.00 to the accused?

"A.         Rebecca de Leon, Annie Nuque, Nenita Andasan, Angelyn Magpayo, Lina Ganot and Edgardo Salvador, sir.

"Q.         At that point in time after you had given the amount of P5,400.00 to the accused, was there an official receipt that was issued or given to you by the accused?

"A.         None, sir.

"Q.         Do you know of any reason why there was no receipt?

"A.         Because we trusted her, sir, because we were barriomates.

"Q.         At that point in time that you actually handed the P5,400.00, where was Dominga Fortuna?

"A.         She was present, sir.

"Q.         Did she tell you anything before and after the giving of this P5,400.00?

"A.         She said that we will be going to Manila to process our papers and passport and we will have a medical examination, sir."7

14

The narration made by the complaining witnesses does appear to be straightforward, credible and convincing, and there scarcely is any reason for ignoring the trial court in its evaluation of their credibility. Indeed, the trial court has additionally observed:

"x x x. There is no showing that any of the complainants had ill-motives against accused Dominga Fortuna other than to bring her to the bar of justice. Furthermore, appellant was a stranger to private complainants before the recruitment. It is contrary to human nature and experience for persons to conspire and accuse a stranger of such a serious crime like this that would take the latter’s liberty and send him or her to prison. Against the prosecution’s overwhelming evidence, accused could only offer a bare denial and an obviously concocted story."

Doctrinally, the assessment made on testimonial evidence by the trial judge is accorded the highest respect for it is he who has the distinct opportunity to directly perceive the demeanor of witnesses and personally ascertain their reliability. The rule has been said that a person charged with illegal recruitment may be convicted on the strength of the testimony of the complainants, if found to be credible and convincing, and that the absence of receipts to evidence payment to the recruiter would not warrant an acquittal, a receipt not being fatal to the prosecution's cause.8

The pertinent provisions of Republic Act No. 8042 state:

"SEC. 6. Definition. – For purposes of this act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract of services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-license or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, that any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged.

"x x x           x x x           x x x.

"Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

"Sec. 7. Penalties. –

"(a) Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine of not less than Two hundred thousand pesos (P200,000.00) nor more than Five hundred thousand pesos (P500,000.00).

"(b) The penalty of life imprisonment and a fine of not less than Five hundred thousand pesos (P500,000.00) nor more than One million pesos (P1,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein.

"Provided, however, That the maximum penalty shall be imposed if the person illegally recruited is less than eighteen (18) years of age or committed by a non-licensee or non-holder of authority."

This Court finds the information which has charged appellant with the offense of Illegal Recruitment in Large Scale, defined and penalized in Republic Act No. 8042, to be sufficient in form and substance. While the information cited Section 6, paragraph (m), of Republic Act No. 8042, its factual averments, however, are sufficient to constitute the crime of Illegal Recruitment in Large Scale under the aforequoted provisions of the law. It is not the specific designation of the offense in the information that controls but it is the allegations therein contained directly apprising the accused of the nature and cause of the accusation against him that matter.9 The requisites constituting the offense of Illegal Recruitment in Large Scale have sufficiently been proven by the prosecution.First, appellant, undeniably, has not been duly licensed to engage in recruitment activities; second, she has engaged in illegal recruitment activities, offering private complainants employment abroad for a fee; and third, she has committed the questioned illegal recruitment activities against three or more persons. Illegal recruitment in large scale (when committed against three or more persons), like illegal recruitment committed by a syndicate (when carried out by a group of three or more persons), would be deemed constitutive of economic sabotage10carrying a penalty, under section 7, paragraph (b), of Republic Act 8042, of life imprisonment and a fine of not less than five hundred thousand (P500,000.00) pesos nor more than one million (P1,000,000.00) pesos. The sentence imposed by the trial court thus accords with the penalty prescribed by law.

A word in passing. No two cases are exactly alike; almost invariably, surrounding circumstances vary from case to case. It is this reality that must have compelled the adoption by the Revised Penal Code of the scheme of graduated penalties providing, correspondingly, for the circumstances that affect criminal liability. The system allows the judge to have a good latitude in the sentencing process. Indeed, in other jurisdictions, a bifurcated proceeding is prescribed in order to help make certain that the penalty is commensurate to the wrong done. Under this procedure, the guilt and the innocence of the accused is first determined and then, after a verdict of plea or guilt, a pre-sentence hearing is conducted where the judge or a jury would hear argument and receive additional evidence on such matters as the nature of the offense, manner of its commission, the milieu of time and place, as well as the education, religion, physical and mental state of the accused, along with still other conditions or circumstances, that may find relevance in either mitigating or aggravating the punishment to be meted,11 all calculated to enhance a fair judgment. Statutory provisions for a single penalty, like those prescribed in Republic Act No. 8042, virtually ignore these safeguards that help obviate the danger of imposing either too great or too little a punishment for the offense.

It is in the above light and given the factual circumstances of the case at bar, that Congress might see it fit to revisit Republic Act No. 8042 towards adopting the provisions of the Revised Penal Code on penalties, including its traditional nomenclatures, that could pave the way for the proper appreciation of the various circumstances long tested that affect criminal liability. Meanwhile, the Court respectfully recommends to the President of the Philippines a possible commutation of sentence.

15

WHEREFORE, the appealed decision of the Regional Trial Court, Cabanatuan City, in Criminal Case No. 8589 for Illegal Recruitment in Large Scale against appellant Dominga Corrales is AFFIRMED.

Let copies of this decision be forwarded to the Office of the President and to the Congress of the Philippines.

SO ORDERED.

16

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 124439             February 5, 2004

PEOPLE OF THE PHILIPPINES, appellee vs.FLOR GUTIERREZ Y TIMOD, appellant.

D E C I S I O N

TlNGA, J.:

In its decision dated 22 March 1996, the Regional Trial Court (RTC) of Pasay City, Branch 1081 found accused Flor Gutierrez y Timod guilty beyond reasonable doubt of Illegal Recruitment in Large Scale and sentenced her to suffer the penalty of life imprisonment and to pay a fine of P100,000.00.

The Information in Criminal Case No. 95-6796 reads as follows:

That from the months of April to August 1994 in Pasay City, Philippines, and within the jurisdiction of this Honorable Court, accused FLOR GUTIERREZ Y TIMOD conspiring and confederating with CECILIA BAUTISTA, ESTHER GAMILDE, LINDA RABAINO and MARILYN GARCIA (whose present whereabouts are unknown) and mutually helping one another, acting in common accord, did then and there, willfully, unlawfully and feloniously, engage in recruitment activities for overseas job placement and actually contract, enlist and recruit EVELYN V. RAMOS, ROSEMARIE I. TUGADE, GENEROSA G. ASUNCION and ROSALYN B. SUMAYO as domestic helpers in Dubai, United Arab Emirates, for a fee of various amounts ranging from P10,000.00 to P15,000.00 each, without first obtaining the required license and/or authority from the Philippine Overseas Employment Administration (POEA).

CONTRARY TO LAW.2

Arraigned on April 24, 1995, the accused entered a plea of not guilty. The version of the prosecution is as follows:

On April 18, 1994, Rosemarie Tugade went to the house of one Celia Bautista, a "recruiter-agent" of the accused, at Brgy. Bulala, Vigan, Ilocos Sur.3 Celia told Rosemarie that she had to submit the following requirements for her application to work in Dubai as a domestic helper: P4,000.00 as placement fee, P1,200.00 for passport, P850.00 for "medical," six (6) 2x2 pictures and her original birth certificate.4

The next day, Rosemarie, together with "recruiter-agent" Celia Bautista and fellow applicant Evelyn Ramos, traveled to Manila to the house of one Esther Gamilde, another of the accused's "recruiter-agents."5 There, Rosemarie and Evelyn filled out their bio-data forms. The two then underwent a medical examination before having their whole-body picture taken. Esther told them that they would know the results of their application from Celia.6

Two weeks later, Celia told Rosemarie that her application for Dubai was already approved and that she will be receiving $150.00-dollars per month. For the first three (3) months, however, there will be salary deductions.7

On August 27, 1994, Rosemarie and Evelyn, along with Celia and Esther, went to the accused's office at Sarifudin Manpower and General Services at EDSA Extension, Pasay City.8 The accused told Rosemarie that she needed to pay P2,000.00 more.9 The accused said she had received all of Rosemarie's documents and the money paid to Celia.10 Trusting in Celia, Rosemarie did not demand a receipt from the accused.

On August 31, 1994, the accused asked Rosemarie to give P500.00 as terminal fee for her departure in a week's time.11 Rosemarie paid the amount, as evidenced by a receipt.12 The scheduled departure did not push through, however. Instead, Rosemarie was told that she was to leave on September 15, 1994, but, again, this did not materialize.13 A series of postponements followed until finally she was told that she would be leaving before Christmas 1994. Almost predictably, her trip never came to pass.14

Private complainant Evelyn Ramos was with Rosemarie when she went to Celia Bautista's house on April 19, 1994.15 Celia told Evelyn that for P4,000.00 she could leave for Dubai to work as a domestic helper.16 Like Rosemarie, Evelyn gave all her documents and paid the fees to Celia, who in turn handed them to Esther Gamilde in Tondo.17 On June 10, 1994, Ramos gave Bautista P8,000.00, which was also turned over to Gamilde.18

On August 22, 1994, Celia told Evelyn that she only had to wait one more week before she left for Dubai.19 On August 27, 1994, Esther brought Evelyn to the accused's office,20 where the accused asked for an additional P2,000.00 as processing fee for the Philippine Overseas Employment Agency (POEA).21 Evelyn paid the amount on August 31, 1994,22 including a terminal fee of P500.00. Like Rosemarie, Evelyn was not able to leave the country despite the accused's promises.

Another complainant, Rosalyn D. Sumayo, also applied for overseas job placement as a domestic helper in Dubai. Her experience was more agonizing. In her case, it was one Marilyn Garcia who assisted Rosalyn.23 She submitted a copy of her birth certificate, six (6) copies of 2 x 2 pictures, two (2) copies of her whole-body picture, passport, and medical certificate.24 Marilyn also asked Rosalyn to pay: a processing fee of P7,500.00, P2,620.00 as full tax, P500.00 as terminal fee, and P3,000.00 as service charge.25

All the documents and money given by Rosalyn to Marilyn were subsequently remitted to the accused at her office on June 28, 1994.26 The accused told Rosalyn that she would be leaving anytime, but after three months, Rosalyn's departure did not push through.27

17

Despite the setback, the accused kept assuring Rosalyn that she would still be able to leave.28 One time, the accused brought her to the airport and instructed her to hide in the airport restroom.29 After fifteen minutes, the accused told her that they had to leave the airport because "mahigpit sa immigration."30 On another occasion, the accused directed Rosalyn to hide inside the Kayumanggi Restaurant for fifteen (15) minutes.31 Nothing happened after, though, and they went home.

On November 14, 1994, Rosalyn was again at the airport.32 The accused warned her, though, that if the Immigration Officer insisted on seeing her papers, it would be better for her to leave.33 As directed, she left the airport when she was asked to produce her documents.34

Exasperated, Rosalyn went to the accused's house and demanded the return of her money and her documents. Instead of acceding to Rosalyn's demands, the accused shouted at her and warned her that she had to pay a cancellation fee of $300.00.35 Rosalyn was not able to give the amount so she stayed with the accused, who assured her that she would still be able to leave the country and that she would receive a monthly salary of $150 to $200.36 These promises were never fulfilled. Rosalyn thus went to the POEA, where POEA Administrator Felicisimo Joson, Jr. informed her that the accused did not have a license to recruit.37

Generosa Asuncion suffered the same fate as her co-applicants. In August 1994, she applied for overseas job placement with one Linda Rabaino.38 Generosa submitted her passport, medical certificate, clearance from the National Bureau of Investigation (NBI), birth certificate, bio-data and pictures.39 She also paid P15,000.00 in two installments on September 9 and 12, 1994,40 which payments were not receipted.

Linda told Generosa she would be leaving on September 13, 1994.41 However, she was not able to leave because, according to Linda, at 25, Generosa was under-aged.42

Linda then referred Generosa to the accused in the latter's office, where Linda turned over Generosa's documents as well as the P15,000 00 to the accused.43 The accused promised that Linda would be able to leave, but her departure never took place.44 When Generosa demanded the return of her money and her documents, the accused told her that she had to pay a cancellation fee of $600.00.45 Stunned, Linda just opted to await the further outcome of her application.46 Her waiting was all for naught.

With the promises of jobs abroad unfulfilled, complainants decided to verify if the accused was a licensed recruiter. Upon learning from the POEA that she was not so licensed,47 they proceeded to the Philippine Anti-Crime Commission (PACC) to execute their respective affidavits.48

SPO4 Johnny Marqueta investigated the women's complaint. He confirmed with the POEA that the accused was not licensed or authorized to recruit overseas contract workers.49 The four complainants also informed him that the accused wanted to meet with the group on January 26, 1995.50 SPO4 Marqueta thus had their money, totaling P2,000.00,51 marked at the National Bureau of Investigation (NBI) Forensic Section for their entrapment operation.52

On January 26, 1995, the accused met with the four complainants at Jollibee, Commonwealth Avenue, Quezon City. As soon as she finished counting the marked money and wrapping it in Jollibee napkins, the accused was arrested.53

In her defense, the accused claimed that as an "employee" of a duly licensed agency who was tasked to recruit and offer job placements abroad, she could not be held liable for illegal recruitment.54 She admitted that she had no authority to recruit in her personal capacity,55 but that her authority emanated from a Special Power of Attorney (SPA) and a Certification issued by a licensed agency.56

At the time complainants applied for overseas employment, the accused was "employed" as a Marketing Directress of Sarifudin Manpower and General Services,57 a duly licensed agency with License No. OS-91-LB-61193-NL issued by the Department of Labor and Employment.58 A Special Power of Attorney (SPA) from Sarifudin, dated May 1, 1994,59 states that she was authorized:

1. To negotiate, enter into business transactions for manpower supply particularly in the Middle East countries;

2. For and in behalf of SARIFUDIN, MANPOWER AND GENERAL SERVICES using as guidelines and terms and conditions by both parties to secure:

(a) Verified Job Orders;

(b) Special Power of Attorney;

(c) Copy of Certified Certificate of Business Registration;

(d) VISA Authorization and/or NOC VISA.

....60

A Certification61 dated February 3, 1995, issued by the same agency, also states that: "MRS. FLOR T. GUTIERREZ was (sic) employed as OVERSEAS MARKETING DIRECTRESS of SARIFUDIN MANPOWER AND GENERAL SERVICES, effective May 1994, up to the present"62

The defense also submitted several documents to prove compliance with the requirements of the agency for her to assume her duties under the SPA. These include receipts63 for a cash bond in the amount of P30,000.00 that she paid in several installments. She also paid a royalty fee of P4,000.0064 and an office rental fee of P3,000.00.65

The accused was also required by the agency to submit a monthly report for June 1994, as evidenced by a Memorandum signed by the General Manager, Leah Salud.66 She submitted said monthly report, indeed, several monthly reports.67 A document calling on all Marketing Directresses/Directors to attend a meeting on July 8, 1994, was also presented.68

18

The accused did not receive any salary or allowances from Sarifudin but received commissions from the agency's principals, the employers from foreign countries (ten in the Middle East and two in Singapore) at the rate of U.S. $100.00 per person.69 From her commissions, she paid rent and royalty to Sarifudin.70

Edwin Cristobal, POEA Labor Employment Officer, confirmed that Sarifudin was duly licensed to engage in recruitment activities.71 He presented a Certification issued by Ma. Salome S. Mendoza, Manager of the Licensing Branch72 and containing the list of officers and staff of Sarifudin. On said list appear the names "Florna Gutierrez" and "Flor Gutierrez,"73 apparently, one and the same person.74 In the same Certification, appears the following:

It is further certified that the said agency revoked the appointment of Ms. Flor Gutierrez as Overseas Mktg. Director/Manager in a letter dated Dec. 15, 1995, although this Office has not received nor acknowledged the representation of Ms. Gutierrez.75

Cristobal explained that the POEA, "Never had a letter from Sarifudin registering or authorizing Flor Gutierrez... rather, [what] we received [was a] revocation of her appointment."76 He also revealed that the name of the accused does not appear in the records of the POEA as being employed by the agency from the assumption of its license on June 11, 1993, up to its termination on June 11, 1995.77

The defense likewise alleged that complainants Rosemarie Tugade and Evelyn Ramos executed Affidavits of Desistance dated May 12, 1995,78 stating that the accused had returned to them the amounts they paid her and that the complaint was a result of a misunderstanding.

On March 22, 1996, the trial court rendered its Decision finding the accused guilty beyond reasonable doubt of Illegal Recruitment in Large Scale:

WHEREFORE, after evaluating all the foregoing, the accused FLOR GUTIERREZ is hereby found guilty beyond reasonable doubt of Illegal Recruitment in Large Scale, and judgment is hereby rendered as follows:

(a) Convicting the accused of Illegal Recruitment in Large Scale and sentencing her to suffer the penalty of life imprisonment and payment of P100,000.00 fine;

(b) No reimbursement to complainants is needed since their money have already been returned;

(c) Accused to pay moral damages in the amount of P50,000.00 to each complainant;

(d) Accused to pay exemplary damages in the amount of P50,000.00 to each complainant; and

(e) To pay the costs of the suit.79

Accused Flor Gutierrez filed the present appeal seeking the reversal of her conviction.

Illegal recruitment is committed when two elements concur, namely: (1) the offender has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers; and (2) he undertakes either any activity within the meaning of "recruitment and placement" defined under Art. 13(b), or any of the prohibited practices enumerated under Art. 34 of the Labor Code.80 Art. 13(b) of the Labor Code defines "recruitment and placement" as "any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any manner, offers or promises for a fee employment to two or more persons, shall be deemed engaged in recruitment and placement."81

The crime becomes Illegal Recruitment in Large Scale when the two elements concur, with the addition of a third element: the recruiter committed the same against three or more persons, individually or as a group.82

Appellant argues that as a representative of a duly licensed recruitment agency, she cannot be held guilty of Illegal Recruitment in Large Scale. We disagree.

Section 11, Rule II, Book II of the Rules and Regulations Governing Overseas Employment requires the prior approval of the POEA of the appointment of representatives or agents:

Section 11. Appointment of Representatives. Every appointment of representatives or agents of licensed agency shall be subject to prior approval or authority of the Administration.

The approval may be issued upon submission of or compliance with the following requirements:

a. Proposed appointment or Special Power of Attorney;

b. Clearances of the proposed representative or agent from NBI;

c. A sworn or verified statement by the designating or appointing person or company assuming full responsibility for all the acts of the agent or representative done in connection with the recruitment and placement of workers.

Approval by the Administration of the appointment or designation does not authorize the agent or representative to establish a branch or extension office of the licensed agency represented.

Any revocation or amendment in the appointment should be communicated to the administration. Otherwise, the designation or appointment shall be deemed as not revoked or amended.

Section 1, Rule X of the same Book, in turn, provides that "recruitment and placement activities of agents or representatives appointed by a licensee, whose appointments were not authorized by the Administration shall likewise constitute illegal recruitment."

19

The Certification from the POEA that it "has not received nor acknowledged the representation of Ms. Gutierrez" establishes that the appointment of appellant by Serafudin as a representative or agent was not authorized by the POEA. It may be true that the POEA received from Serafudin a revocation of appellant's appointment, but still is of no consequence since Serafudin in the first place did not submit her appointment to the POEA, and so the POEA has nothing to approve.

As found by the trial court83 the evidence on record, notably appellant's own version, indicates that she was running her own labor recruitment business.

Appellant cannot escape liability by claiming that she was not aware that before working for her employer in the recruitment agency, she should first be registered with the POEA.84 Illegal recruitment in large scale is malum prohibitum, not malum in se.85 Good faith is not a defense.

That appellant engaged in recruitment and placement is beyond dispute. The complaining witnesses categorically testified that the accused promised them on several occasions that they would be leaving for work abroad. Appellant received complainants' money and documents, a fact that the complainants themselves witnessed and which the accused acknowledged when she returned the same to them after the filing of the case against her. Appellant even brought complainant Rosalyn Sumayo to the airport three times, raising her expectations, but leaving her hanging in mid-air. The accused even had the audacity to demand cancellation fees from the complainants when they asked for a refund.

The Affidavits of Desistance executed by two of the complainants deserve little weight. The Court attaches no persuasive value to affidavits of desistance, especially when executed as an afterthought. As held in the case ofPeople v. Ubina,86 "it would be a dangerous rule for courts to reject testimonies solemnly taken before the courts of justice simply because the witnesses who had given them later on changed their mind for one reason or another; for such rule would make solemn trials a mockery and place the investigation of truth at the mercy of unscrupulous witnesses."87

As appellant committed illegal recruitment against three or more persons, she is liable for Illegal Recruitment in Large Scale.

WHEREFORE, the Decision of the Regional Trial Court, finding appellant Flor Gutierrez y Timod guilty beyond reasonable doubt of the crime of Illegal Recruitment in Large Scale and sentencing her to life imprisonment and to pay a fine of P100,000.00 is AFFIRMED.

SO ORDERED.

20

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 131719             May 25, 2004

THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF LABOR AND EMPLOYMENT, AND THE SECRETARY OF FOREIGN AFFAIRS, OWWA PUNO, ADMINISTRATOR, and POEA ADMINISTRATOR, petitioners, vs.THE HON. COURT OF APPEALS and ASIAN RECRUITMENT COUNCIL PHILIPPINE CHAPTER (ARCO-PHIL.), INC., representing its members: Worldcare Services Internationale, Inc., SteadfastInternational Recruitment Corporation, Dragon International Manpower Services Corporation, Verdant Manpower Mobilization Corporation, Brent Overseas Personnel, Inc., ARL Manpower Services, Inc., Dahlzhen International Services, Inc., Interworld Placement Center, Inc., Lakas Tao Contract Services, Ltd. Co., and SSC Multiservices, respondents.

D E C I S I O N

CALLEJO, SR., J.:

In this petition for review on certiorari, the Executive Secretary of the President of the Philippines, the Secretary of Justice, the Secretary of Foreign Affairs, the Secretary of Labor and Employment, the POEA Administrator and the OWWA Administrator, through the Office of the Solicitor General, assail the Decision1 of the Court of Appeals in CA-G.R. SP No. 38815 affirming the Order2 of the Regional Trial Court of Quezon City dated August 21, 1995 in Civil Case No. Q-95-24401, granting the plea of the petitioners therein for a writ of preliminary injunction and of the writ of preliminary injunction issued by the trial court on August 24, 1995.

The Antecedents

Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, took effect on July 15, 1995. The Omnibus Rules and Regulations Implementing the Migrant Workers and Overseas Filipino Act of 1995 was, thereafter, published in the April 7, 1996 issue of the Manila Bulletin. However, even before the law took effect, the Asian Recruitment Council Philippine Chapter, Inc. (ARCO-Phil.) filed, on July 17, 1995, a petition for declaratory relief under Rule 63 of the Rules of Court with the Regional Trial Court of Quezon City to declare as unconstitutional Section 2, paragraph (g), Section 6, paragraphs (a) to (j), (l) and (m), Section 7, paragraphs (a) and (b), and Sections 9 and 10 of the law, with a plea for the issuance of a temporary restraining order and/or writ of preliminary injunction enjoining the respondents therein from enforcing the assailed provisions of the law.

In a supplement to its petition, the ARCO-Phil. alleged that Rep. Act No. 8042 was self-executory and that no implementing rules were needed. It prayed that the court issue a temporary restraining order to enjoin the enforcement of Section 6, paragraphs (a) to (m) on illegal recruitment, Section 7 on penalties for illegal recruitment, and Section 9 on venue of criminal actions for illegal recruitments, viz:

Viewed in the light of the foregoing discussions, there appears to be urgent an imperative need for this Honorable Court to maintain the status quo by enjoining the implementation or effectivity of the questioned provisions of RA 8042, by way of a restraining order otherwise, the member recruitment agencies of the petitioner will suffer grave or irreparable damage or injury. With the effectivity of RA 8042, a great majority of the duly licensed recruitment agencies have stopped or suspended their operations for fear of being prosecuted under the provisions of a law that are unjust and unconstitutional. This Honorable Court may take judicial notice of the fact that processing of deployment papers of overseas workers for the past weeks have come to a standstill at the POEA and this has affected thousands of workers everyday just because of the enactment of RA 8042. Indeed, this has far reaching effects not only to survival of the overseas manpower supply industry and the active participating recruitment agencies, the country’s economy which has survived mainly due to the dollar remittances of the overseas workers but more importantly, to the poor and the needy who are in dire need of income-generating jobs which can only be obtained from abroad. The loss or injury that the recruitment agencies will suffer will then be immeasurable and irreparable. As of now, even foreign employers have already reduced their manpower requirements from the Philippines due to their knowledge that RA 8042 prejudiced and adversely affected the local recruitment agencies.3

On August 1, 1995, the trial court issued a temporary restraining order effective for a period of only twenty (20) days therefrom.

After the petitioners filed their comment on the petition, the ARCO-Phil. filed an amended petition, the amendments consisting in the inclusion in the caption thereof eleven (11) other corporations which it alleged were its members and which it represented in the suit, and a plea for a temporary restraining order enjoining the respondents from enforcing Section 6 subsection (i), Section 6 subsection (k) and paragraphs 15 and 16 thereof, Section 8, Section 10, paragraphs 1 and 2, and Sections 11 and 40 of Rep. Act No. 8042.

The respondent ARCO-Phil. assailed Section 2(g) and (i), Section 6 subsection (a) to (m), Section 7(a) to (b), and Section 10 paragraphs (1) and (2), quoted as follows:

(g) THE STATE RECOGNIZES THAT THE ULTIMATE PROTECTION TO ALL MIGRANT WORKERS IS THE POSSESSION OF SKILLS. PURSUANT TO THIS AND AS SOON AS PRACTICABLE, THE GOVERNMENT SHALL DEPLOY AND/OR ALLOW THE DEPLOYMENT ONLY OF SKILLED FILIPINO WORKERS.4

Sec. 2 subsection (i, 2nd par.)

21

Nonetheless, the deployment of Filipino overseas workers, whether land-based or sea-based, by local service contractors and manning agents employing them shall be encourages (sic). Appropriate incentives may be extended to them.

…

II. ILLEGAL RECRUITMENT

SEC. 6. Definition. – For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall, likewise, include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority:

(a) To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay any amount greater than that actually received by him as a loan or advance;

(b) To furnish or publish any false notice or information or document in relation to recruitment or employment;

(c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code;

(d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment;

(e) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency;

(f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines;

(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his duly authorized representative;

(h) To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment;

(i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment;

(j) For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency;

(k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under the Labor Code and its implementing rules and regulations;

(l) Failure to actually deploy without valid reason as determined by the Department of Labor and Employment; and

(m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker’s fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having control, management or direction of their business shall be liable.

…

SEC. 7. Penalties. –

(a) Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine of not less than two hundred thousand pesos (P200,000.00) nor more than five hundred thousand pesos (P500,000.00).

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(b) The penalty of life imprisonment and a fine of not less than five hundred thousand pesos (P500,000.00) nor more than one million pesos (P1,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein.

Provided, however, That the maximum penalty shall be imposed if the person illegally recruited is less than eighteen (18) years of age or committed by a non-licensee or non-holder of authority.

Sec. 8.

Prohibition on Officials and Employees. – It shall be unlawful for any official or employee of the Department of Labor and Employment, the Philippine Overseas Employment Administration (POEA), or the Overseas Workers Welfare Administration (OWWA), or the Department of Foreign Affairs, or other government agencies involved in the implementation of this Act, or their relatives within the fourth civil degree of consanguinity or affinity, to engage, directly or indirectly, in the business of recruiting migrant workers as defined in this Act. The penalties provided in the immediate preceding paragraph shall be imposed upon them. (underscoring supplied)

…

Sec. 10, pars. 1 & 2.

Money Claims. – Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide,within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages.

The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provision shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to be filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages.

…

SEC. 11. Mandatory Periods for Resolution of Illegal Recruitment Cases. – The preliminary investigations of cases under this Act shall be terminated within a period of thirty (30) calendar days from the date of their filing. Where the preliminary investigation is conducted by a prosecution officer and a prima facie case is established, the

corresponding information shall be filed in court within twenty-four (24) hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a prima facie case is found to exist, the corresponding information shall be filed by the proper prosecution officer within forty-eight (48) hours from the date of receipt of the records of the case.

The respondent averred that the aforequoted provisions of Rep. Act No. 8042 violate Section 1, Article III of the Constitution.5 According to the respondent, Section 6(g) and (i) discriminated against unskilled workers and their families and, as such, violated the equal protection clause, as well as Article II, Section 126 and Article XV, Sections 17 and 3(3) of the Constitution.8 As the law encouraged the deployment of skilled Filipino workers, only overseas skilled workers are granted rights. The respondent stressed that unskilled workers also have the right to seek employment abroad. According to the respondent, the right of unskilled workers to due process is violated because they are prevented from finding employment and earning a living abroad. It cannot be argued that skilled workers are immune from abuses by employers, while unskilled workers are merely prone to such abuses. It was pointed out that both skilled and unskilled workers are subjected to abuses by foreign employers. Furthermore, the prohibition of the deployment of unskilled workers abroad would only encourage fly-by-night illegal recruiters.

According to the respondent, the grant of incentives to service contractors and manning agencies to the exclusion of all other licensed and authorized recruiters is an invalid classification. Licensed and authorized recruiters are thus deprived of their right to property and due process and to the "equality of the person." It is understandable for the law to prohibit illegal recruiters, but to discriminate against licensed and registered recruiters is unconstitutional.

The respondent, likewise, alleged that Section 6, subsections (a) to (m) is unconstitutional because licensed and authorized recruitment agencies are placed on equal footing with illegal recruiters. It contended that while the Labor Code distinguished between recruiters who are holders of licenses and non-holders thereof in the imposition of penalties, Rep. Act No. 8042 does not make any distinction. The penalties in Section 7(a) and (b) being based on an invalid classification are, therefore, repugnant to the equal protection clause, besides being excessive; hence, such penalties are violative of Section 19(1), Article III of the Constitution.9 It was also pointed out that the penalty for officers/officials/employees of recruitment agencies who are found guilty of economic sabotage or large-scale illegal recruitment under Rep. Act No. 8042 is life imprisonment. Since recruitment agencies usually operate with a manpower of more than three persons, such agencies are forced to shut down, lest their officers and/or employees be charged with large scale illegal recruitment or economic sabotage and sentenced to life imprisonment. Thus, the penalty imposed by law, being disproportionate to the prohibited acts, discourages the business of licensed and registered recruitment agencies.

The respondent also posited that Section 6(m) and paragraphs (15) and (16), Sections 8, 9 and 10, paragraph 2 of the law violate Section 22, Article III of the Constitution10 prohibiting ex-post facto laws and bills of attainder. This is because the provisions presume that a licensed and registered recruitment agency is guilty of illegal recruitment involving economic sabotage, upon a finding that it committed any of the prohibited acts under the law. Furthermore, officials, employees and their relatives are presumed guilty of illegal recruitment involving economic sabotage upon such finding that they committed any of the said prohibited acts.

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The respondent further argued that the 90-day period in Section 10, paragraph (1) within which a labor arbiter should decide a money claim is relatively short, and could deprive licensed and registered recruiters of their right to due process. The period within which the summons and the complaint would be served on foreign employees and, thereafter, the filing of the answer to the complaint would take more than 90 days. This would thereby shift on local licensed and authorized recruiters the burden of proving the defense of foreign employers. Furthermore, the respondent asserted, Section 10, paragraph 2 of the law, which provides for the joint and several liability of the officers and employees, is a bill of attainder and a violation of the right of the said corporate officers and employees to due process. Considering that such corporate officers and employees act with prior approval of the board of directors of such corporation, they should not be liable, jointly and severally, for such corporate acts.

The respondent asserted that the following provisions of the law are unconstitutional:

SEC. 9. Venue. – A criminal action arising from illegal recruitment as defined herein shall be filed with the Regional Trial Court of the province or city where the offense was committed or where the offended party actually resides at the time of the commission of the offense: Provided, That the court where the criminal action is first filed shall acquire jurisdiction to the exclusion of other courts: Provided, however, That the aforestated provisions shall also apply to those criminal actions that have already been filed in court at the time of the effectivity of this Act.

…

SEC. 10. Money Claims. – Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages.

Sec. 40.

The departments and agencies charged with carrying out the provisions of this Act shall, within ninety (90) days after the effectiviy of this Act, formulate the necessary rules and regulations for its effective implementation.

According to the respondent, the said provisions violate Section 5(5), Article VIII of the Constitution11 because they impair the power of the Supreme Court to promulgate rules of procedure.

In their answer to the petition, the petitioners alleged, inter alia, that (a) the respondent has no cause of action for a declaratory relief; (b) the petition was premature as the rules implementing Rep. Act No. 8042 not having been released as yet; (c) the assailed provisions do not violate any provisions of the Constitution; and, (d) the law was approved by Congress in the exercise of the

police power of the State. In opposition to the respondent’s plea for injunctive relief, the petitioners averred that:

As earlier shown, the amended petition for declaratory relief is devoid of merit for failure of petitioner to demonstrate convincingly that the assailed law is unconstitutional, apart from the defect and impropriety of the petition. One who attacks a statute, alleging unconstitutionality must prove its invalidity beyond reasonable doubt (Caleon v. Agus Development Corporation, 207 SCRA 748). All reasonable doubts should be resolved in favor of the constitutionality of a statute (People v. Vera, 65 Phil. 56). This presumption of constitutionality is based on the doctrine of separation of powers which enjoin upon each department a becoming respect for the acts of the other departments (Garcia vs. Executive Secretary, 204 SCRA 516 [1991]). Necessarily, the ancillary remedy of a temporary restraining order and/or a writ of preliminary injunction prayed for must fall. Besides, an act of legislature approved by the executive is presumed to be within constitutional bounds (National Press Club v. Commission on Elections, 207 SCRA 1).12

After the respective counsels of the parties were heard on oral arguments, the trial court issued on August 21, 1995, an order granting the petitioner’s plea for a writ of preliminary injunction upon a bond of P50,000. The petitioner posted the requisite bond and on August 24, 1995, the trial court issued a writ of preliminary injunction enjoining the enforcement of the following provisions of Rep. Act No. 8042 pending the termination of the proceedings:

… Section 2, subsections (g) and (i, 2nd par.); Section 6, subsections (a) to (m), and pars. 15 & 16; Section 7, subsections (a) & (b); Section 8; Section 9; Section 10; pars. 1 & 2; Section 11; and Section 40 of Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995. …13

The petitioners filed a petition for certiorari with the Court of Appeals assailing the order and the writ of preliminary injunction issued by the trial court on the following grounds:

1. Respondent ARCO-PHIL. had utterly failed to show its clear right/s or that of its member-agencies to be protected by the injunctive relief and/or violation of said rights by the enforcement of the assailed sections of R.A. 8042;

2. Respondent Judge fixed a P50,000 injunction bond which is grossly inadequate to answer for the damage which petitioner-officials may sustain, should respondent ARCO-PHIL. be finally adjudged as not being entitled thereto.14

The petitioners asserted that the respondent is not the real party-in-interest as petitioner in the trial court. It is inconceivable how the respondent, a non-stock and non-profit corporation, could sustain direct injury as a result of the enforcement of the law. They argued that if, at all, any damage would result in the implementation of the law, it is the licensed and registered recruitment agencies and/or the unskilled Filipino migrant workers discriminated against who would sustain the said injury or damage, not the respondent. The respondent, as petitioner in the trial court, was burdened to adduce preponderant evidence of such irreparable injury, but failed to do so. The petitioners further insisted that the petition a quo was premature since the rules and regulations implementing the law had yet to be promulgated when such petition was filed. Finally, the petitioners averred that the

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respondent failed to establish the requisites for the issuance of a writ of preliminary injunction against the enforcement of the law and the rules and regulations issued implementing the same.

On December 5, 1997, the appellate court came out with a four-page decision dismissing the petition and affirming the assailed order and writ of preliminary injunction issued by the trial court. The appellate court, likewise, denied the petitioners’ motion for reconsideration of the said decision.

The petitioners now come to this Court in a petition for review on certiorari on the following grounds:

1. Private respondent ARCO-PHIL. had utterly failed to show its clear right/s or that of its member-agencies to be protected by the injunctive relief and/or violation of said rights by the enforcement of the assailed sections of R.A. 8042;

2. The P50,000 injunction bond fixed by the court a quo and sustained by the Court of Appeals is grossly inadequate to answer for the damage which petitioners-officials may sustain, should private respondent ARCO-PHIL. be finally adjudged as not being entitled thereto.15

On February 16, 1998, this Court issued a temporary restraining order enjoining the respondents from enforcing the assailed order and writ of preliminary injunction.

The Issues

The core issue in this case is whether or not the trial court committed grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the assailed order and the writ of preliminary injunction on a bond of onlyP50,000 and whether or not the appellate court erred in affirming the trial court’s order and the writ of preliminary injunction issued by it.

The petitioners contend that the respondent has no locus standi. It is a non-stock, non-profit organization; hence, not the real party-in-interest as petitioner in the action. Although the respondent filed the petition in the Regional Trial Court in behalf of licensed and registered recruitment agencies, it failed to adduce in evidence a certified copy of its Articles of Incorporation and the resolutions of the said members authorizing it to represent the said agencies in the proceedings. Neither is the suit of the respondent a class suit so as to vest in it a personality to assail Rep. Act No. 8042; the respondent is service-oriented while the recruitment agencies it purports to represent are profit-oriented. The petitioners assert that the law is presumed constitutional and, as such, the respondent was burdened to make a case strong enough to overcome such presumption and establish a clear right to injunctive relief.

The petitioners bewail the P50,000 bond fixed by the trial court for the issuance of a writ of preliminary injunction and affirmed by the appellate court. They assert that the amount is grossly inadequate to answer for any damages that the general public may suffer by reason of the non-enforcement of the assailed provisions of the law. The trial court committed a grave abuse of its

discretion in granting the respondent’s plea for injunctive relief, and the appellate court erred in affirming the order and the writ of preliminary injunction issued by the trial court.

The respondent, for its part, asserts that it has duly established its locus standi and its right to injunctive relief as gleaned from its pleadings and the appendages thereto. Under Section 5, Rule 58 of the Rules of Court, it was incumbent on the petitioners, as respondents in the RTC, to show cause why no injunction should issue. It avers that the injunction bond posted by the respondent was more than adequate to answer for any injury or damage the petitioners may suffer, if any, by reason of the writ of preliminary injunction issued by the RTC. In any event, the assailed provisions of Rep. Act No. 8042 exposed its members to the immediate and irreparable damage of being deprived of their right to a livelihood without due process, a property right protected under the Constitution.

The respondent contends that the commendable purpose of the law to eradicate illegal recruiters should not be done at the expense and to the prejudice of licensed and authorized recruitment agencies. The writ of preliminary injunction was necessitated by the great number of duly licensed recruitment agencies that had stopped or suspended their business operations for fear that their officers and employees would be indicted and prosecuted under the assailed oppressive penal provisions of the law, and meted excessive penalties. The respondent, likewise, urges that the Court should take judicial notice that the processing of deployment papers of overseas workers have come to a virtual standstill at the POEA.

The Court’s Ruling

The petition is meritorious.

The Respondent Has Locus Standi

To File the Petition in the RTC in Representation of the Eleven Licensed and Registered Recruitment Agencies Impleaded in the Amended Petition

The modern view is that an association has standing to complain of injuries to its members. This view fuses the legal identity of an association with that of its members.16 An association has standing to file suit for its workers despite its lack of direct interest if its members are affected by the action. An organization has standing to assert the concerns of its constituents.17

In Telecommunications and Broadcast Attorneys of the Philippines v. Commission on Elections,18 we held that standing jus tertii would be recognized only if it can be shown that the party suing has some substantial relation to the third party, or that the right of the third party would be diluted unless the party in court is allowed to espouse the third party’s constitutional claims.

In this case, the respondent filed the petition for declaratory relief under Rule 64 of the Rules of Court for and in behalf of its eleven (11) licensed and registered recruitment agencies which are its members, and which approved separate resolutions expressly authorizing the respondent to file the said suit for and in their behalf. We note that, under its Articles of Incorporation, the respondent was organized for the purposes inter alia of promoting and supporting the growth and development

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of the manpower recruitment industry, both in the local and international levels; providing, creating and exploring employment opportunities for the exclusive benefit of its general membership; enhancing and promoting the general welfare and protection of Filipino workers; and, to act as the representative of any individual, company, entity or association on matters related to the manpower recruitment industry, and to perform other acts and activities necessary to accomplish the purposes embodied therein. The respondent is, thus, the appropriate party to assert the rights of its members, because it and its members are in every practical sense identical. The respondent asserts that the assailed provisions violate the constitutional rights of its members and the officers and employees thereof. The respondent is but the medium through which its individual members seek to make more effective the expression of their voices and the redress of their grievances.19

However, the respondent has no locus standi to file the petition for and in behalf of unskilled workers. We note that it even failed to implead any unskilled workers in its petition. Furthermore, in failing to implead, as parties-petitioners, the eleven licensed and registered recruitment agencies it claimed to represent, the respondent failed to comply with Section 2 of Rule 6320 of the Rules of Court. Nevertheless, since the eleven licensed and registered recruitment agencies for which the respondent filed the suit are specifically named in the petition, the amended petition is deemed amended to avoid multiplicity of suits.21

The Assailed Order and Writ of

Preliminary Injunction Is Mooted

By Case Law

The respondent justified its plea for injunctive relief on the allegation in its amended petition that its members are exposed to the immediate and irreparable danger of being deprived of their right to a livelihood and other constitutional rights without due process, on its claim that a great number of duly licensed recruitment agencies have stopped or suspended their operations for fear that (a) their officers and employees would be prosecuted under the unjust and unconstitutional penal provisions of Rep. Act No. 8042 and meted equally unjust and excessive penalties, including life imprisonment, for illegal recruitment and large scale illegal recruitment without regard to whether the recruitment agencies involved are licensed and/or authorized; and, (b) if the members of the respondent, which are licensed and authorized, decide to continue with their businesses, they face the stigma and the curse of being labeled "illegal recruiters." In granting the respondent’s plea for a writ of preliminary injunction, the trial court held, without stating the factual and legal basis therefor, that the enforcement of Rep. Act No. 8042, pendente lite, would cause grave and irreparable injury to the respondent until the case is decided on its merits.

We note, however, that since Rep. Act No. 8042 took effect on July 15, 1995, the Court had, in a catena of cases, applied the penal provisions in Section 6, including paragraph (m) thereof, and the last two paragraphs therein defining large scale illegal recruitment committed by officers and/or employees of recruitment agencies by themselves and in connivance with private individuals, and imposed the penalties provided in Section 7 thereof, including the penalty of life imprisonment.22 The Informations therein were filed after preliminary investigations as provided for in Section 11 of Rep. Act No. 8042 and in venues as provided for in Section 9 of the said act.

InPeople v. Chowdury,23 we held that illegal recruitment is a crime of economic sabotage and must be enforced.

In People v. Diaz,24 we held that Rep. Act No. 8042 is but an amendment of the Labor Code of the Philippines and is not an ex-post facto law because it is not applied retroactively. In JMM Promotion and Management, Inc. v. Court of Appeals,25 the issue of the extent of the police power of the State to regulate a business, profession or calling vis-à-vis the equal protection clause and the non-impairment clause of the Constitution were raised and we held, thus:

A profession, trade or calling is a property right within the meaning of our constitutional guarantees. One cannot be deprived of the right to work and the right to make a living because these rights are property rights, the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong.

Nevertheless, no right is absolute, and the proper regulation of a profession, calling, business or trade has always been upheld as a legitimate subject of a valid exercise of the police power by the state particularly when their conduct affects either the execution of legitimate governmental functions, the preservation of the State, the public health and welfare and public morals. According to the maxim, sic utere tuo ut alienum non laedas, it must of course be within the legitimate range of legislative action to define the mode and manner in which every one may so use his own property so as not to pose injury to himself or others.

In any case, where the liberty curtailed affects at most the rights of property, the permissible scope of regulatory measures is certainly much wider. To pretend that licensing or accreditation requirements violates the due process clause is to ignore the settled practice, under the mantle of the police power, of regulating entry to the practice of various trades or professions. Professionals leaving for abroad are required to pass rigid written and practical exams before they are deemed fit to practice their trade. Seamen are required to take tests determining their seamanship. Locally, the Professional Regulation Commission has begun to require previously licensed doctors and other professionals to furnish documentary proof that they had either re-trained or had undertaken continuing education courses as a requirement for renewal of their licenses. It is not claimed that these requirements pose an unwarranted deprivation of a property right under the due process clause. So long as professionals and other workers meet reasonable regulatory standards no such deprivation exists.

Finally, it is a futile gesture on the part of petitioners to invoke the non-impairment clause of the Constitution to support their argument that the government cannot enact the assailed regulatory measures because they abridge the freedom to contract. In Philippine Association of Service Exporters, Inc. vs. Drilon, we held that "[t]he non-impairment clause of the Constitution … must yield to the loftier purposes targeted by the government." Equally important, into every contract is read provisions of existing law, and always, a reservation of the police power for so long as the agreement deals with a subject impressed with the public welfare.

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A last point. Petitioners suggest that the singling out of entertainers and performing artists under the assailed department orders constitutes class legislation which violates the equal protection clause of the Constitution. We do not agree.

The equal protection clause is directed principally against undue favor and individual or class privilege. It is not intended to prohibit legislation which is limited to the object to which it is directed or by the territory in which it is to operate. It does not require absolute equality, but merely that all persons be treated alike under like conditions both as to privileges conferred and liabilities imposed. We have held, time and again, that the equal protection clause of the Constitution does not forbid classification for so long as such classification is based on real and substantial differences having a reasonable relation to the subject of the particular legislation. If classification is germane to the purpose of the law, concerns all members of the class, and applies equally to present and future conditions, the classification does not violate the equal protection guarantee.26

The validity of Section 6 of R.A. No. 8042 which provides that employees of recruitment agencies may be criminally liable for illegal recruitment has been upheld in People v. Chowdury:27

As stated in the first sentence of Section 6 of RA 8042, the persons who may be held liable for illegal recruitment are the principals, accomplices and accessories. An employee of a company or corporation engaged in illegal recruitment may be held liable as principal, together with his employer, if it is shown that he actively and consciously participated in illegal recruitment. It has been held that the existence of the corporate entity does not shield from prosecution the corporate agent who knowingly and intentionally causes the corporation to commit a crime. The corporation obviously acts, and can act, only by and through its human agents, and it is their conduct which the law must deter. The employee or agent of a corporation engaged in unlawful business naturally aids and abets in the carrying on of such business and will be prosecuted as principal if, with knowledge of the business, its purpose and effect, he consciously contributes his efforts to its conduct and promotion, however slight his contribution may be. …28

By its rulings, the Court thereby affirmed the validity of the assailed penal and procedural provisions of Rep. Act No. 8042, including the imposable penalties therefor. Until the Court, by final judgment, declares that the said provisions are unconstitutional, the enforcement of the said provisions cannot be enjoined.

The RTC Committed Grave Abuse of Its Discretion Amounting to Excess or Lack of Jurisdiction in Issuing the Assailed Order and the Writ of Preliminary Injunction

The matter of whether to issue a writ of preliminary injunction or not is addressed to the sound discretion of the trial court. However, if the court commits grave abuse of its discretion in issuing the said writ amounting to excess or lack of jurisdiction, the same may be nullified via a writ of certiorari and prohibition.

In Social Security Commission v. Judge Bayona,29 we ruled that a law is presumed constitutional until otherwise declared by judicial interpretation. The suspension of the operation of the law is a

matter of extreme delicacy because it is an interference with the official acts not only of the duly elected representatives of the people but also of the highest magistrate of the land.

In Younger v. Harris, Jr.,30 the Supreme Court of the United States emphasized, thus:

Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and, hence, unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid. 752 Beal v. Missouri Pacific Railroad Corp., 312 U.S. 45, 49, 61 S.Ct. 418, 420, 85 L.Ed. 577.

And similarly, in Douglas, supra, we made clear, after reaffirming this rule, that:

"It does not appear from the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith …" 319 U.S., at 164, 63 S.Ct., at 881.31

The possible unconstitutionality of a statute, on its face, does not of itself justify an injunction against good faith attempts to enforce it, unless there is a showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief.32 The "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort," and is generally disfavored.33

To be entitled to a preliminary injunction to enjoin the enforcement of a law assailed to be unconstitutional, the party must establish that it will suffer irreparable harm in the absence of injunctive relief and must demonstrate that it is likely to succeed on the merits, or that there are sufficiently serious questions going to the merits and the balance of hardships tips decidedly in its favor.34 The higher standard reflects judicial deference toward "legislation or regulations developed through presumptively reasoned democratic processes." Moreover, an injunction will alter, rather than maintain, the status quo, or will provide the movant with substantially all the relief sought and that relief cannot be undone even if the defendant prevails at a trial on the merits.35 Considering that injunction is an exercise of equitable relief and authority, in assessing whether to issue a preliminary injunction, the courts must sensitively assess all the equities of the situation, including the public interest.36 In litigations between governmental and private parties, courts go much further both to give and withhold relief in furtherance of public interest than they are accustomed to go when only private interests are involved.37 Before the plaintiff may be entitled to injunction against future enforcement, he is burdened to show some substantial hardship.38

The fear or chilling-effect of the assailed penal provisions of the law on the members of the respondent does not by itself justify prohibiting the State from enforcing them against those whom the State believes in good faith to be punishable under the laws:

27

… Just as the incidental "chilling effect" of such statutes does not automatically render them unconstitutional, so the chilling effect that admittedly can result from the very existence of certain laws on the statute books does not in itself justify prohibiting the State from carrying out the important and necessary task of enforcing these laws against socially harmful conduct that the State believes in good faith to be punishable under its laws and the Constitution.39

It must be borne in mind that subject to constitutional limitations, Congress is empowered to define what acts or omissions shall constitute a crime and to prescribe punishments therefor.40 The power is inherent in Congress and is part of the sovereign power of the State to maintain peace and order. Whatever views may be entertained regarding the severity of punishment, whether one believes in its efficiency or its futility, these are peculiarly questions of legislative policy.41 The comparative gravity of crimes and whether their consequences are more or less injurious are matters for the State and Congress itself to determine.42 Specification of penalties involves questions of legislative policy.43

Due process prohibits criminal stability from shifting the burden of proof to the accused, punishing wholly passive conduct, defining crimes in vague or overbroad language and failing to grant fair warning of illegal conduct.44Class legislation is such legislation which denies rights to one which are accorded to others, or inflicts upon one individual a more severe penalty than is imposed upon another in like case offending.45 Bills of attainder are legislative acts which inflict punishment on individuals or members of a particular group without a judicial trial. Essential to a bill of attainder are a specification of certain individuals or a group of individuals, the imposition of a punishment, penal or otherwise, and the lack of judicial trial.46

Penalizing unlicensed and licensed recruitment agencies and their officers and employees and their relatives employed in government agencies charged with the enforcement of the law for illegal recruitment and imposing life imprisonment for those who commit large scale illegal recruitment is not offensive to the Constitution. The accused may be convicted of illegal recruitment and large scale illegal recruitment only if, after trial, the prosecution is able to prove all the elements of the crime charged.47

The possibility that the officers and employees of the recruitment agencies, which are members of the respondent, and their relatives who are employed in the government agencies charged in the enforcement of the law, would be indicted for illegal recruitment and, if convicted sentenced to life imprisonment for large scale illegal recruitment, absent proof of irreparable injury, is not sufficient on which to base the issuance of a writ of preliminary injunction to suspend the enforcement of the penal provisions of Rep. Act No. 8042 and avert any indictments under the law.48 The normal course of criminal prosecutions cannot be blocked on the basis of allegations which amount to speculations about the future.49

There is no allegation in the amended petition or evidence adduced by the respondent that the officers and/or employees of its members had been threatened with any indictments for violations of the penal provisions of Rep. Act No. 8042. Neither is there any allegation therein that any of its members and/or their officers and employees committed any of the acts enumerated in Section 6(a) to (m) of the law for which they could be indicted. Neither did the respondent adduce any evidence in the RTC that any or all of its members or a great number of other duly licensed and registered recruitment agencies had to stop their business operations because of fear of

indictments under Sections 6 and 7 of Rep. Act No. 8042. The respondent merely speculated and surmised that licensed and registered recruitment agencies would close shop and stop business operations because of the assailed penal provisions of the law. A writ of preliminary injunction to enjoin the enforcement of penal laws cannot be based on such conjectures or speculations. The Court cannot take judicial notice that the processing of deployment papers of overseas workers have come to a virtual standstill at the POEA because of the assailed provisions of Rep. Act No. 8042. The respondent must adduce evidence to prove its allegation, and the petitioners accorded a chance to adduce controverting evidence.

The respondent even failed to adduce any evidence to prove irreparable injury because of the enforcement of Section 10(1)(2) of Rep. Act No. 8042. Its fear or apprehension that, because of time constraints, its members would have to defend foreign employees in cases before the Labor Arbiter is based on speculations. Even if true, such inconvenience or difficulty is hardly irreparable injury.

The trial court even ignored the public interest involved in suspending the enforcement of Rep. Act No. 8042 vis-à-vis the eleven licensed and registered recruitment agencies represented by the respondent. In People v. Gamboa,50 we emphasized the primary aim of Rep. Act No. 8042:

Preliminarily, the proliferation of illegal job recruiters and syndicates preying on innocent people anxious to obtain employment abroad is one of the primary considerations that led to the enactment of The Migrant Workers and Overseas Filipinos Act of 1995. Aimed at affording greater protection to overseas Filipino workers, it is a significant improvement on existing laws in the recruitment and placement of workers for overseas employment. Otherwise known as the Magna Carta of OFWs, it broadened the concept of illegal recruitment under the Labor Code and provided stiffer penalties thereto, especially those that constitute economic sabotage, i.e., Illegal Recruitment in Large Scale and Illegal Recruitment Committed by a Syndicate.51

By issuing the writ of preliminary injunction against the petitioners sans any evidence, the trial court frustrated, albeit temporarily, the prosecution of illegal recruiters and allowed them to continue victimizing hapless and innocent people desiring to obtain employment abroad as overseas workers, and blocked the attainment of the salutary policies52 embedded in Rep. Act No. 8042. It bears stressing that overseas workers, land-based and sea-based, had been remitting to the Philippines billions of dollars which over the years had propped the economy.In issuing the writ of preliminary injunction, the trial court considered paramount the interests of the eleven licensed and registered recruitment agencies represented by the respondent, and capriciously overturned the presumption of the constitutionality of the assailed provisions on the barefaced claim of the respondent that the assailed provisions of Rep. Act No. 8042 are unconstitutional. The trial court committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the assailed order and writ of preliminary injunction. It is for this reason that the Court issued a temporary restraining order enjoining the enforcement of the writ of preliminary injunction issued by the trial court.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed decision of the appellate court isREVERSED AND SET ASIDE. The Order of the Regional Trial Court dated August 21, 1995 in Civil Case No. Q-95-24401 and the Writ of Preliminary Injunction issued by it in the said case on August 24, 1995 are NULLIFIED. No costs. SO ORDERED.

28

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 151849               June 23, 2005

G & M (PHIL.), INC., Petitioner, vs.WILLIE BATOMALAQUE, Respondent.

D E C I S I O N

CARPIO MORALES, J.:

Culled from the records of the case are the following facts material to the appeal of petitioner.

Sometime in February 1992, Abdul Aziz Abdullah Al Muhaimid Najad Car Maintenance Association (Abdul Aziz), a Saudi Arabian entity based in Riyadh, hired respondent, Willie Batomalaque, as a car painter at a monthly salary of US$370.001 for a two-year period2 through its agent, petitioner G&M (Phil.), Inc.

In accordance with the employment contract, respondent started working for Abdul Aziz on March 10, 19923 at a monthly salary of US$370.004 which according to him was equivalent to 1,200 Saudi riyals.5

On June 7, 19946 respondent was repatriated and on January 3, 1995 he filed a complaint7 against petitioner, Abdul Aziz, and Country Empire Insurance Company with the Philippine Overseas Employment Administration8 for non-payment and underpayment of salaries and damages.1avvphi1.zw+

In his Complaint-Affidavit respondent claimed that for the first four months of employment, he received a monthly salary of 900 Saudi riyals,9 and for the fifth month (July 1992) up to the end of the 12th month (February 1993), he received a monthly salary of 700 Saudi riyals;10 that after a one-year stint with Abdul Aziz, the workshop where he was working was sold but the new owner did not hire him;11 that for eleven months he was jobless;12 that Abdul Aziz hired him again and started working for it in February 1994 for which he was paid 1,200 Saudi riyals;13 and that he resigned in May 1994 since he was not paid his salary for the months of March and April 1994,14 which 2-month salary, was, however, used to purchase his airline ticket on his repatriation to the Philippines.

Respondent thus prayed in his Complaint-Affidavit for the award to him of damages arising from the following:

a. Non-payment of wages for 11 months from April 1993 to January 1994;

b. Non-payment of salaries for the months of March and April 1994;

c. Non-payment of salary differentials int ( sic ) the amount of SR500  per month for seven months deducted from his salary starting the 5th month of his work or July 1992 up to February 1993 or the totla (sic) amount of SR3,500;

d. moral and exemplary damages of P50,000.00;

e. other just and equitable remedies are prayed for.15 (Emphasis and underscoring supplied)

Among other claims, petitioner denied respondent’s claim that he was underpaid, it maintaining that he was paid his salaries in full.16

By Decision17 of July 22, 1996, Labor Arbiter Fatima Jambaro-Franco credited respondent’s complaint for underpayment of salaries during the first year of his contract but denied his other claims in this wise:

After due consideration, this Office finds the complaint for underpayment of salaries and wages meritorious.

Well-settled is the rule that in cases of non-payment and underpayment of salaries and wages, the employer has the burden of proof to show that the worker/employee has been paid all his salaries and wages since it has in its possession the proof of payment such as payrolls and/or vouchers (Sambalonay vs. Jose Cuevas, NLRC No. RB IV – 186447, February 13, 1980) and in the absence of proof to the contrary, it is deemed that no payment has been made.

In the case at bar, except for their bare allegation that complainant’s salaries was not underpaid, no evidence was adduced to show that complainant’s salaries and wages were fully paid constraining the undersigned to grant the claim of the complainant as shown in the computation below, to wit:

Agreed Salary – SR1,200

Salary Received – SR900 for 5 months

– SR700 for 8 months

Salary differential

29

SR1,200 – SR900 = SR300 x 5 mos. = SR1,500

SR1,200 – SR700 = SR500 x 8 mos. = SR4,000

SR5,500

The claim for the non-payment of salaries for eleven (11) months (April 1993 to January 1994) is, however, untenable. The records show that complainant was repatriated on June 7, 1994, more than two (2) years from his deployment on March 9, 1992. While he claims for underpayment of salaries and wages for thirteen (13) months,he did not claim for illegal dismissal, although he claims for the payment of salaries from April 1993 to January 1994.18 This Office is in a quandary why complainant stayed at the jobsite for eleven (11) months, without work, yet there was no complaint lodged in the Labor/Consulate Office in Saudi Arabia. The undersigned opines that if complainant really felt aggrieved, then he could have easily filed a complaint at the jobsite. However, complainant did nothing to vindicate his right, in fact, he stayed on until June 1994. Under these circumstances, this Office gives more credence to the respondents’ assertion that complainant completed his 2 years   (sic)  contract and even extended for another 2 months before his repatriation. It is worthy to note that complainant never claimed that he was constructively dismissed rendering his claim for payment of the unexpired portion of the contract untenable.

The claim for refund of transportation expenses is likewise, not allowable in the absence of proof that the repatriation cost was actually shouldered by him. (Underscoring supplied)

The labor arbiter thus disposed as follows:

WHEREFORE, in view of the foregoing, respondents G & M (Phils.), Inc., Abdul Aziz Abdullah Al Muhaimid Najad Car Maintenance Association and Country Empire Insurance Company are hereby ordered to pay jointly and severally complainant Willie Batomalaque the amount of FIVE THOUSAND FIVE HUNDRED SAUDI RIYALS ( SR5,500 ) or in Philippine currency  at the prevailing rate of exchange as certified to by the Central Bank at the time of payment, representing his underpayment of salaries and wages.

All other claims are dismissed for lack of merit.

SO ORDERED.19 (Emphasis and underscoring supplied)

Petitioner appealed20 the labor arbiter’s decision to the National Labor Relation Commission (NLRC) which, by Resolution21 of February 11, 1999, affirmed the same.

Aggrieved, petitioner, via a petition for certiorari22 under Rule 65, brought the case to the Court of Appeals which docketed it as CA-G.R. No. 52920. By the assailed decision23 of April 27, 2001, the Court of Appeals dismissed petitioner’s petition, it holding that the NLRC committed no error much less any grave abuse of discretion.

Petitioner’s motion for reconsideration24 having been denied by the Court of Appeals, by Resolution25 of January 8, 2002, it lodged the present petition.26

Petitioner maintains that respondent had been paid his salaries in full and it was incumbent upon him to prove otherwise.

Petitioner’s claim fails.

It is settled that as a general rule, a party who alleges payment as a defense has the burden of proving it.27

Specifically with respect to labor cases, the burden of proving payment of monetary claims rests on the employer, the rationale being

that the pertinent personnel files, payrolls, records, remittances and other similar documents — which will show that overtime, differentials, service incentive leave and other claims of workers have been paid — are not in the possession of the worker but in the custody and absolute control of the employer.28

Aside, however, from its bare allegation that its principal Abdul Aziz had fully paid respondent’s salaries, petitioner did not present any evidence, e.g., payroll or payslips, to support its defense of payment. Petitioner thus failed to discharge the onus probandi.

Petitioner, as the recruiter and agent of Abdul Aziz, is thus solidarily liable with the latter for the unpaid wages of respondent. This Court, through Justice Irene Cortes, in Royal Crown Internationale v. NLRC29 explains the basis thereof:

…Petitioner conveniently overlooks the fact that it had voluntarily assumed solidary liability under the various contractual undertakings it submitted to the Bureau of Employment Services. In applying for its license to operate a private employment agency for overseas recruitment and placement, petitioner was required to submit, among others, a document or verified undertaking whereby it assumed all responsibilities for the proper use of its license and the   implementation of the contracts of employment with the workers   it recruited and deployed for overseas employment [Section 2(e), Rule V, Book I, Rules to Implement the Labor Code (1976)]. It was also required to file with the Bureau a formal appointment or agency contract executed by the foreign-based employer in its favor to recruit and hire personnel for the former, which contained a provision empowering it   to sue and be sued jointly and solidarily with the foreign principal for any of the violations of the recruitment agreement and the contracts of employment [Section 10 (a) (2), Rule V, Book I of the Rules to Implement the Labor Code (1976)]. Petitioner was required as well to post such cash and surety bonds as determined by the Secretary of Labor to guarantee compliance with prescribed recruitment procedures, rules and regulations, and terms and conditions of employment as appropriate   [Section 1 of Pres. Dec. 1412 (1978) amending Article 31 of the Labor Code].

These contractual undertakings constitute the legal basis for holding petitioner, and other private employment or recruitment agencies, liable jointly and severally with its principal, the foreign-based employer, for all claims filed by recruited workers which may arise in connection

30

with the implementation of the service agreements or employment contracts [See Ambraque International Placement and Services v. NLRC, G.R. No. 77970, January 28, 1988, 157 SCRA 431; Catan v. NLRC, G.R. No. 77279, April 15, 1988, 160 SCRA 691; Alga Moher International Placement Services v. Atienza, G.R. No. 74610, September 30, 1988]30 (Emphasis and underscoring supplied; italics in the original)

Petitioner argues, however, that the foregoing rule has no application in the case at bar because it applies only to one which raises the issue of non-payment but not one which raises issues of underpayment,31 hence, the burden was on respondent to show that he was indeed underpaid.32

Petitioner does not persuade.

On repeated occasions, this Court ruled that the debtor has the burden of showing with legal certainty that the obligation has been discharged by payment.33 To discharge means to extinguish an obligation,34 and in contract law discharge occurs either when the parties have performed their obligations in the contract, or when an event the conduct of the parties, or the operation of law releases the parties from performing.35 Thus, a party who alleges that an obligation has been extinguished must prove facts or acts giving rise to the extinction.

The fact of underpayment does not shift the burden of evidence to the plaintiff-herein respondent because partial payment does not extinguish the obligation.36 Only when the debtor introduces evidence that the obligation has been extinguished does the burden of evidence shift to the creditor who is then under a duty of producing evidence to show why payment does not extinguish the obligation.

The lack of merit of petitioner’s petition notwithstanding, this Court finds that the appellate court’s affirmance of the award to respondent of salaries for a 13-month period, as reflected in the computation of salary differential in the decision of the labor arbiter, calls for modification. Respondent himself alleged in his Complaint-Affidavit having been underpaid for 12 months 37  albeit, oddly enough, in the above-quoted prayer of his said Complaint-Affidavit, he prayed for salary differential in the amount of "SR500 per month for seven [7] months… starting the 5th month of his work or July 1992 up to February 1993 or [a total] amount of SR3,500."

Respondent being entitled to a monthly salary of US$370.00,38 its equivalent of 1,200 Saudi riyals of which has not been disputed, and his allegation that he received a monthly salary of 900 Saudi riyals for the first 4 months and 700 Saudi riyals for the 5th month until the end of the 12th month not having been successfully refuted, he is entitled to SR5,200,39 not SR5,500, representing the total deficient payment of his salaries for a 12-month period.

WHEREFORE, the Decision of the Court of Appeals in C.A. G.R. SP. No. 52920 is AFFIRMED with the MODIFICATION that respondent, Willie Batomalaque, is only entitled to 5,200 Saudi riyals, instead of 5,500 Saudi riyals. Costs against petitioner.

SO ORDERED.

31

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

 

G.R. No. 100641 June 14, 1993

FARLE P. ALMODIEL, petitioner, vs.NATIONAL LABOR RELATIONS COMMISSION (FIRST DIVISION), RAYTHEON PHILS., INC., respondents.

Apolinario Lomabao, Jr. for petitioner.

Vicente A. Cruz, Jr., for private respondent.

 

NOCON, J.:

Subject of this petition for certiorari is the decision dated March 21, 1991 of the National Labor Relations Commission in NLRC Case No. 00-00645-89 which reversed and set aside the Labor Arbiter's decision dated September 27, 1989 and ordered instead the payment of separation pay and financial assistance of P100,000.00. Petitioner imputes grave abuse of discretion on the part of the Commission and prays for the reinstatement of the Labor Arbiter's decision which declared his termination on the ground of redundancy illegal.

Petitioner Farle P. Almodiel is a certified public accountant who was hired in October, 1987 as Cost Accounting Manager of respondent Raytheon Philippines, Inc. through a reputable placement firm, John Clements Consultants, Inc. with a starting monthly salary of P18,000.00. Before said employment, he was the accounts executive of Integrated Microelectronics, Inc. for several years. He left his lucrative job therein in view of the promising career offered by Raytheon. He started as a probationary or temporary employee. As Cost Accounting Manager, his major duties were: (1) plan, coordinate and carry out year and physical inventory; (2) formulate and issue out hard copies of Standard Product costing and other cost/pricing analysis if needed and required and (3) set up the written Cost Accounting System for the whole company. After a few months, he was given a regularization increase of P1,600.00 a month. Not long thereafter, his salary was increased to P21,600.00 a month.

On August 17, 1988, he recommended and submitted a Cost Accounting/Finance Reorganization, affecting the whole finance group but the same was disapproved by the Controller. However, he

was assured by the Controller that should his position or department which was apparently a one-man department with no staff becomes untenable or unable to deliver the needed service due to manpower constraint, he would be given a three (3) year advance notice.

In the meantime, the standard cost accounting system was installed and used at the Raytheon plants and subsidiaries worldwide. It was likewise adopted and installed in the Philippine operations. As a consequence, the services of a Cost Accounting Manager allegedly entailed only the submission of periodic reports that would use computerized forms prescribed and designed by the international head office of the Raytheon Company in California, USA.

On January 27, 1989, petitioner was summoned by his immediate boss and in the presence of IRD Manager, Mr. Rolando Estrada, he was told of the abolition of his position on the ground of redundancy. He pleaded with management to defer its action or transfer him to another department, but he was told that the decision of management was final and that the same has been conveyed to the Department of Labor and Employment. Thus, he was constrained to file the complaint for illegal dismissal before the Arbitration Branch of the National Capital Region, NLRC, Department of Labor and Employment.

On September 27, 1989, Labor Arbiter Daisy Cauton-Barcelona rendered a decision, the dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered declaring that complainant's termination on the ground of redundancy is highly irregular and without legal and factual basis, thus ordering the respondents to reinstate complainant to his former position with full backwages without lost of seniority rights and other benefits. Respondents are further ordered to pay complainant P200,000.00 as moral damages and P20,000.00 as exemplary damages, plus ten percent (10%) of the total award as attorney's fees.1

Raytheon appealed therefrom on the grounds that the Labor Arbiter committed grave abuse of discretion in denying its rights to dismiss petitioner on the ground of redundancy, in relying on baseless surmises and self-serving assertions of the petitioner that its act was tainted with malice and bad faith and in awarding moral and exemplary damages and attorney's fees.

On March 21, 1991, the NLRC reversed the decision and directed Raytheon to pay petitioner the total sum of P100,000.00 as separation pay/financial assistance. The dispositive portion of which is hereby quoted as follows:

WHEREFORE, the appealed decision is hereby set aside. In its stead, Order is hereby issued directing respondent to pay complainant the total separation pay/financial assistance of One Hundred Thousand Pesos (P100,000.00).

SO ORDERED. 2

From this decision, petitioner filed the instant petition averring that:

32

The public respondent committed grave abuse of discretion amounting to (lack of) or in excess of jurisdiction in declaring as valid and justified the termination of petitioner on the ground of redundancy in the face of clearly established finding that petitioner's termination was tainted with malice, bad faith and irregularity. 3

Termination of an employee's services because of redundancy is governed by Article 283 of the Labor Code which provides as follows:

Art. 283. Closure of establishment and reduction of personnel. — The employer may also terminate the employment of any employee due to installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the worker and the Department of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closure or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to at least one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered as one (1) whole year.

There is no dispute that petitioner was duly advised, one (1) month before, of the termination of his employment on the ground of redundancy in a written notice by his immediate superior, Mrs. Magdalena B.D. Lopez sometime in the afternoon of January 27, 1989. He was issued a check for P54,863.00 representing separation pay but in view of his refusal to acknowledge the notice and the check, they were sent to him thru registered mail on January 30, 1989. The Department of Labor and Employment was served a copy of the notice of termination of petitioner in accordance with the pertinent provisions of the Labor Code and the implementing rules.

The crux of the controversy lies on whether bad faith, malice and irregularity crept in the abolition of petitioner's position of Cost Accounting Manager on the ground of redundancy. Petitioner claims that the functions of his position were absorbed by the Payroll/Mis/Finance Department under the management of Danny Ang Tan Chai, a resident alien without any working permit from the Department of Labor and Employment as required by law. Petitioner relies on the testimony of Raytheon's witness to the effect that corollary functions appertaining to cost accounting were dispersed to other units in the Finance Department. And granting that his department has to be declared redundant, he claims that he should have been the Manager of the Payroll/Mis/Finance Department which handled general accounting, payroll and encoding. As a B. S. Accounting graduate, a CPA with M.B.A. units, 21 years of work experience, and a natural born Filipino, he claims that he is better qualified than Ang Tan Chai, a B.S. Industrial Engineer, hired merely as a Systems Analyst Programmer or its equivalent in early 1987, promoted as MIS Manager only during the middle part of 1988 and a resident alien.

On the other hand, Raytheon insists that petitioner's functions as Cost Accounting Manager had not been absorbed by Ang Tan Chai, a permanent resident born in this country. It claims to have established below that Ang Tan Chai did not displace petitioner or absorb his functions and duties as they were occupying entirely different and distinct positions requiring different sets of expertise or qualifications and discharging functions altogether different and foreign from that of petitioner's abolished position. Raytheon debunks petitioner's reliance on the testimony of Mr. Estrada saying that the same witness testified under oath that the functions of the Cost Accounting Manager had been completely dispensed with and the position itself had been totally abolished.

Whether petitioner's functions as Cost Accounting Manager have been dispensed with or merely absorbed by another is however immaterial. Thus, notwithstanding the dearth of evidence on the said question, a resolution of this case can be arrived at without delving into this matter. For even conceding that the functions of petitioner's position were merely transferred, no malice or bad faith can be imputed from said act. A survey of existing case law will disclose that in Wiltshire File Co., Inc. v. NLRC, 4 the position of Sales Manager was abolished on the ground of redundancy as the duties previously discharged by the Sales Manager simply added to the duties of the General Manager to whom the Sales Manager used to report. In adjudging said termination as legal, this Court said that redundancy, for purposes of our Labor Code, exists where the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise. The characterization of an employee's services as no longer necessary or sustainable, and therefore, properly terminable, was an exercise of business judgment on the part of the employer. The wisdom or soundness of such characterization or decision was not subject to discretionary review on the part of the Labor Arbiter nor of the NLRC so long, of course, as violation of law or merely arbitrary and malicious action is not shown.

In the case of International Macleod, Inc. v. Intermediate Appellate Court, 5 this Court also considered the position of Government Relations Officer to have become redundant in view of the appointment of the International Heavy Equipment Corporation as the company's dealer with the government. It held therein that the determination of the need for the phasing out of a department as a labor and cost saving device because it was no longer economical to retain said services is a management prerogative and the courts will not interfere with the exercise thereof as long as no abuse of discretion or merely arbitrary or malicious action on the part of management is shown.

In the same vein, this Court ruled in Bondoc v. People's Bank and Trust Co., 6 that the bank's board of directors possessed the power to remove a department manager whose position depended on the retention of the trust and confidence of management and whether there was need for his services. Although some vindictive motivation might have impelled the abolition of his position, this Court expounded that it is undeniable that the bank's board of directors possessed the power to remove him and to determine whether the interest of the bank justified the existence of his department.

Indeed, an employer has no legal obligation to keep more employees than are necessary for the operation of its business. Petitioner does not dispute the fact that a cost accounting system was installed and used at Raytheon subsidiaries and plants worldwide; and that the functions of his position involve the submission of periodic reports utilizing computerized forms designed and prescribed by the head office with the installation of said accounting system. Petitioner attempts to controvert these realities by alleging that some of the functions of his position were still indispensable and were actually dispersed to another department. What these indispensable

33

functions that were dispersed, he failed however, to specify and point out. Besides, the fact that the functions of a position were simply added to the duties of another does not affect the legitimacy of the employer's right to abolish a position when done in the normal exercise of its prerogative to adopt sound business practices in the management of its affairs.

Considering further that petitioner herein held a position which was definitely managerial in character, Raytheon had a broad latitude of discretion in abolishing his position. An employer has a much wider discretion in terminating employment relationship of managerial personnel compared to rank and file employees. 7 The reason obviously is that officers in such key positions perform not only functions which by nature require the employer's full trust and confidence but also functions that spell the success or failure of an enterprise.

Likewise destitute of merit is petitioner's imputation of unlawful discrimination when Raytheon caused corollary functions appertaining to cost accounting to be absorbed by Danny Ang Tan Chai, a resident alien without a working permit. Article 40 of the Labor Code which requires employment permit refers to non-resident aliens. The employment permit is required for entry into the country for employment purposes and is issued after determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired. Since Ang Tan Chai is a resident alien, he does not fall within the ambit of the provision.

Petitioner also assails Raytheon's choice of Ang Tan Chai to head the Payroll/Mis/Finance Department, claiming that he is better qualified for the position. It should be noted, however, that Ang Tan Chai was promoted to the position during the middle part of 1988 or before the abolition of petitioner's position in early 1989. Besides the fact that Ang Tan Chai's promotion thereto is a settled matter, it has been consistently held that an objection founded on the ground that one has better credentials over the appointee is frowned upon so long as the latter possesses the minimum qualifications for the position. In the case at bar, since petitioner does not allege that Ang Tan Chai does not qualify for the position, the Court cannot substitute its discretion and judgment for that which is clearly and exclusively management prerogative. To do so would take away from the employer what rightly belongs to him as aptly explained in National Federation of Labor Unions v. NLRC: 8

It is a well-settled rule that labor laws do not authorize interference with the employer's judgment in the conduct of his business. The determination of the qualification and fitness of workers for hiring and firing, promotion or reassignment are exclusive prerogatives of management. The Labor Code and its implementing Rules do not vest in the Labor Arbiters nor in the different Divisions of the NLRC (nor in the courts) managerial authority. The employer is free to determine, using his own discretion and business judgment, all elements of employment, "from hiring to firing" except in cases of unlawful discrimination or those which may be provided by law. There is none in the instant case.

Finding no grave abuse of discretion on the part of the National Labor Relations Commission in reversing and annulling the decision of the Labor Arbiter and that on the contrary, the termination of petitioner's employment was anchored on a valid and authorized cause under Article 283 of the Labor Code, the instant petition for certiorarimust fail.

SO ORDERED.

34

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

 

G.R. No. 114337 September 29, 1995

NITTO ENTERPRISES, petitioner, vs.NATIONAL LABOR RELATIONS COMMISSION and ROBERTO CAPILI, respondents.

 

KAPUNAN, J.:

This petition for certiorari under Rule 65 of the Rules of Court seeking to annul the decision 1 rendered by public respondent National Labor Relations Commission, which reversed the decision of the Labor Arbiter.

Briefly, the facts of the case are as follows:

Petitioner Nitto Enterprises, a company engaged in the sale of glass and aluminum products, hired Roberto Capili sometime in May 1990 as an apprentice machinist, molder and core maker as evidenced by an apprenticeship agreement 2 for a period of six (6) months from May 28, 1990 to November 28, 1990 with a daily wage rate of P66.75 which was 75% of the applicable minimum wage.

At around 1:00 p.m. of August 2, 1990, Roberto Capili who was handling a piece of glass which he was working on, accidentally hit and injured the leg of an office secretary who was treated at a nearby hospital.

Later that same day, after office hours, private respondent entered a workshop within the office premises which was not his work station. There, he operated one of the power press machines without authority and in the process injured his left thumb. Petitioner spent the amount of P1,023.04 to cover the medication of private respondent.

The following day, Roberto Capili was asked to resign in a letter 3 which reads:

August 2, 1990

Wala siyang tanggap ng utos mula sa superbisor at wala siyang experiensa kung papaano gamitin and "TOOL" sa pagbuhat ng salamin, sarili niyang desisyon ang paggamit ng tool at may disgrasya at nadamay pa ang isang sekretarya ng kompanya.

Sa araw ding ito limang (5) minute ang nakakalipas mula alas-singko ng hapon siya ay pumasok sa shop na hindi naman sakop ng kanyang trabaho. Pinakialaman at kinalikot ang makina at nadisgrasya niya ang kanyang sariling kamay.

Nakagastos ang kompanya ng mga sumusunod:

Emergency and doctor fee P715.00Medecines (sic) and others 317.04

Bibigyan siya ng kompanya ng Siyam na araw na libreng sahod hanggang matanggal ang tahi ng kanyang kamay.

Tatanggapin niya ang sahod niyang anim na araw, mula ika-30 ng Hulyo at ika-4 ng Agosto, 1990.

Ang kompanya ang magbabayad ng lahat ng gastos pagtanggal ng tahi ng kanyang kamay, pagkatapos ng siyam na araw mula ika-2 ng Agosto.

Sa lahat ng nakasulat sa itaas, hinihingi ng kompanya ang kanyang resignasyon, kasama ng kanyang comfirmasyon at pag-ayon na ang lahat sa itaas ay totoo.

 

Naiintindihan ko ang lahat ng nakasulat sa itaas, at ang lahat ng ito ay aking pagkakasala sa hindi pagsunod sa alintuntunin ng kompanya.

(Sgd.) Roberto

CapiliRoberto

Capili

On August 3, 1990 private respondent executed a Quitclaim and Release in favor of petitioner for and in consideration of the sum of P1,912.79. 4

35

Three days after, or on August 6, 1990, private respondent formally filed before the NLRC Arbitration Branch, National Capital Region a complaint for illegal dismissal and payment of other monetary benefits.

On October 9, 1991, the Labor Arbiter rendered his decision finding the termination of private respondent as valid and dismissing the money claim for lack of merit. The dispositive portion of the ruling reads:

WHEREFORE, premises considered, the termination is valid and for cause, and the money claims dismissed for lack of merit.

The respondent however is ordered to pay the complainant the amount of P500.00 as financial assistance.

SO ORDERED. 5

Labor Arbiter Patricio P. Libo-on gave two reasons for ruling that the dismissal of Roberto Capilian was valid. First, private respondent who was hired as an apprentice violated the terms of their agreement when he acted with gross negligence resulting in the injury not only to himself but also to his fellow worker. Second, private respondent had shown that "he does not have the proper attitude in employment particularly the handling of machines without authority and proper training. 6

On July 26, 1993, the National Labor Relations Commission issued an order reversing the decision of the Labor Arbiter, the dispositive portion of which reads:

WHEREFORE, the appealed decision is hereby set aside. The respondent is hereby directed to reinstate complainant to his work last performed with backwages computed from the time his wages were withheld up to the time he is actually reinstated. The Arbiter of origin is hereby directed to further hear complainant's money claims and to dispose them on the basis of law and evidence obtaining.

SO ORDERED. 7

The NLRC declared that private respondent was a regular employee of petitioner by ruling thus:

As correctly pointed out by the complainant, we cannot understand how an apprenticeship agreement filed with the Department of Labor only on June 7, 1990 could be validly used by the Labor Arbiter as basis to conclude that the complainant was hired by respondent as a plain "apprentice" on May 28, 1990. Clearly, therefore, the complainant was respondent's regular employee under Article 280 of the Labor Code, as early as May 28,1990, who thus enjoyed the security of tenure guaranteed in Section 3, Article XIII of our 1987 Constitution.

The complainant being for illegal dismissal (among others) it then behooves upon respondent, pursuant to Art. 227(b) and as ruled in Edwin Gesulgon vs. NLRC, et al. (G.R. No. 90349, March 5, 1993, 3rd Div., Feliciano, J.) to prove that the dismissal of complainant was for a valid cause. Absent such proof, we cannot but rule that the complainant was illegally dismissed. 8

On January 28, 1994, Labor Arbiter Libo-on called for a conference at which only private respondent's representative was present.

On April 22, 1994, a Writ of Execution was issued, which reads:

NOW, THEREFORE, finding merit in [private respondent's] Motion for Issuance of the Writ, you are hereby commanded to proceed to the premises of [petitioner] Nitto Enterprises and Jovy Foster located at No. l 74 Araneta Avenue, Portero, Malabon, Metro Manila or at any other places where their properties are located and effect the reinstatement of herein [private respondent] to his work last performed or at the option of the respondent by payroll reinstatement.

You are also to collect the amount of P122,690.85 representing his backwages as called for in the dispositive portion, and turn over such amount to this Office for proper disposition.

Petitioner filed a motion for reconsideration but the same was denied.

Hence, the instant petition — for certiorari.

The issues raised before us are the following:

I

WHETHER OR NOT PUBLIC RESPONDENT NLRC COMMITTED GRAVE ABUSE OF DISCRETION IN HOLDING THAT PRIVATE RESPONDENT WAS NOT AN APPRENTICE.

II

WHETHER OR NOT PUBLIC RESPONDENT NLRC COMMITTED GRAVE ABUSE OF DISCRETION IN HOLDING THAT PETITIONER HAD NOT ADEQUATELY PROVEN THE EXISTENCE OF A VALID CAUSE IN TERMINATING THE SERVICE OF PRIVATE RESPONDENT.

We find no merit in the petition.

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Petitioner assails the NLRC's finding that private respondent Roberto Capili cannot plainly be considered an apprentice since no apprenticeship program had yet been filed and approved at the time the agreement was executed.

Petitioner further insists that the mere signing of the apprenticeship agreement already established an employer-apprentice relationship.

Petitioner's argument is erroneous.

The law is clear on this matter. Article 61 of the Labor Code provides:

Contents of apprenticeship agreement. — Apprenticeship agreements, including the main rates of apprentices, shall conform to the rules issued by the Minister of Labor and Employment. The period of apprenticeship shall not exceed six months. Apprenticeship agreements providing for wage rates below the legal minimum wage, which in no case shall start below 75% per cent of the applicable minimum wage, may be entered into only in accordance with apprenticeship program duly approved by the Minister of Labor and Employment. The Ministry shall develop standard model programs of apprenticeship. (emphasis supplied)

In the case at bench, the apprenticeship agreement between petitioner and private respondent was executed on May 28, 1990 allegedly employing the latter as an apprentice in the trade of "care maker/molder." On the same date, an apprenticeship program was prepared by petitioner and submitted to the Department of Labor and Employment. However, the apprenticeship Agreement was filed only on June 7, 1990. Notwithstanding the absence of approval by the Department of Labor and Employment, the apprenticeship agreement was enforced the day it was signed.

Based on the evidence before us, petitioner did not comply with the requirements of the law. It is mandated that apprenticeship agreements entered into by the employer and apprentice shall be entered only in accordance with the apprenticeship program duly approved by the Minister of Labor and Employment.

Prior approval by the Department of Labor and Employment of the proposed apprenticeship program is, therefore, a condition sine quo non before an apprenticeship agreement can be validly entered into.

The act of filing the proposed apprenticeship program with the Department of Labor and Employment is a preliminary step towards its final approval and does not instantaneously give rise to an employer-apprentice relationship.

Article 57 of the Labor Code provides that the State aims to "establish a national apprenticeship program through the participation of employers, workers and government and non-government agencies" and "to establish apprenticeship standards for the protection of apprentices." To translate such objectives into existence, prior approval of the DOLE to any apprenticeship program has to be secured as a condition sine qua non before any such apprenticeship agreement can be

fully enforced. The role of the DOLE in apprenticeship programs and agreements cannot be debased.

Hence, since the apprenticeship agreement between petitioner and private respondent has no force and effect in the absence of a valid apprenticeship program duly approved by the DOLE, private respondent's assertion that he was hired not as an apprentice but as a delivery boy ("kargador" or "pahinante") deserves credence. He should rightly be considered as a regular employee of petitioner as defined by Article 280 of the Labor Code:

Art. 280. Regular and Casual Employment. — The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.

An employment shall be deemed to be casual if it is not covered by the preceding paragraph:Provided, That, any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. (Emphasis supplied)

and pursuant to the constitutional mandate to "protect the rights of workers and promote their welfare." 9

Petitioner further argues that, there is a valid cause for the dismissal of private respondent.

There is an abundance of cases wherein the Court ruled that the twin requirements of due process, substantive and procedural, must be complied with, before valid dismissal exists. 10 Without which, the dismissal becomes void.

The twin requirements of notice and hearing constitute the essential elements of due process. This simply means that the employer shall afford the worker ample opportunity to be heard and to defend himself with the assistance of his representative, if he so desires.

Ample opportunity connotes every kind of assistance that management must accord the employee to enable him to prepare adequately for his defense including legal representation. 11

As held in the case of Pepsi-Cola Bottling Co., Inc. v. NLRC: 12

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The law requires that the employer must furnish the worker sought to be dismissed with two (2) written notices before termination of employee can be legally effected: (1) notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice which informs the employee of the employer's decision to dismiss him (Sec. 13, BP 130; Sec. 2-6 Rule XIV, Book V, Rules and Regulations Implementing the Labor Code as amended). Failure to comply with the requirements taints the dismissal with illegality. This procedure is mandatory, in the absence of which, any judgment reached by management is void and in existent (Tingson, Jr. vs. NLRC, 185 SCRA 498 [1990]; National Service Corp. vs. NLRC, 168 SCRA 122; Ruffy vs. NLRC. 182 SCRA 365 [1990]).

The fact is private respondent filed a case of illegal dismissal with the Labor Arbiter only three days after he was made to sign a Quitclaim, a clear indication that such resignation was not voluntary and deliberate.

Private respondent averred that he was actually employed by petitioner as a delivery boy ("kargador" or "pahinante").

He further asserted that petitioner "strong-armed" him into signing the aforementioned resignation letter and quitclaim without explaining to him the contents thereof. Petitioner made it clear to him that anyway, he did not have a choice. 13

Petitioner cannot disguise the summary dismissal of private respondent by orchestrating the latter's alleged resignation and subsequent execution of a Quitclaim and Release. A judicious examination of both events belies any spontaneity on private respondent's part.

WHEREFORE, finding no abuse of discretion committed by public respondent National Labor Relations Commission, the appealed decision is hereby AFFIRMED.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

 

G.R. No. 122917 July 12, 1999

MARITES BERNARDO, ELVIRA GO DIAMANTE, REBECCA E. DAVID, DAVID P. PASCUAL, RAQUEL ESTILLER, ALBERT HALLARE, EDMUND M. CORTEZ, JOSELITO O. AGDON GEORGE P. LIGUTAN JR., CELSO M. YAZAR, ALEX G. CORPUZ, RONALD M. DELFIN, ROWENA M. TABAQUERO, CORAZON C. DELOS REYES, ROBERT G. NOORA, MILAGROS O. LEQUIGAN, ADRIANA F. TATLONGHARI, IKE CABANDUCOS, COCOY NOBELLO, DORENDA CANTIMBUHAN, ROBERT MARCELO, LILIBETH Q. MARMOLEJO, JOSE E. SALES, ISABEL MAMAUAG, VIOLETA G. MONTES, ALBINO TECSON, MELODY V. GRUELA, BERNADETH D. AGERO, CYNTHIA DE VERA, LANI R. CORTEZ, MA. ISABEL B. CONCEPCION, DINDO VALERIO, ZENAIDA MATA, ARIEL DEL PILAR, MARGARET CECILIA CANOZA, THELMA SEBASTIAN, MA. JEANETTE CERVANTES, JEANNIE RAMIL, ROZAIDA PASCUAL, PINKY BALOLOA, ELIZABETH VENTURA, GRACE S. PARDO and TIMOSA,petitioners, vs.NATIONAL LABOR RELATIONS COMMISSION and FAR EAST BANK AND TRUST COMPANY, respondents.

 

PANGANIBAN, J.:

The Magna Carta for Disabled Persons mandates that qualified disabled persons be granted the same terms and conditions of employment as qualified able-bodied employees. Once they have attained the status of regular workers, they should be accorded all the benefits granted by law, notwithstanding written or verbal contracts to the contrary. This treatments is rooted not merely on charity or accomodation, but on justice for all.

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The Case

Challenged in the Petition for Certiorari 1 before us is the June 20, 1995 Decision 2 of the National Labor Relations Commission (NLRC), 3 which affirmed the August, 22 1994 ruling of Labor Arbiter Cornelio L. Linsangan. The labor arbiter's Decision disposed as follows: 4

WHEREFORE, judgment is hereby rendered dismissing the above-mentioned complaint for lack of merit.

Also assailed is the August 4, 1995 Resolution 5 of the NLRC, which denied the Motion for Reconsideration.

The Facts

The facts were summarized by the NLRC in this wise: 6

Complainants numbering 43 (p. 176, Records) are deaf-mutes who were hired on various periods from 1988 to 1993 by respondent Far East Bank and Trust Co. as Money Sorters and Counters through a uniformly worded agreement called "Employment Contract for Handicapped Workers". (pp. 68 & 69, Records) The full text of said agreement is quoted below:

EMPLOYMENT CONTRACT FOR

HANDICAPPED WORKERS

This Contract, entered into by and between:

FAR EAST BANK AND TRUST COMPANY, a universal banking corporation duly organized and existing under and by virtue of the laws of the Philippines, with business address at FEBTC Building, Muralla, Intramuros, Manila, represented herein by its Assistant Vice President, MR. FLORENDO G. MARANAN, (hereinafter referred to as the "BANK");

-and-

—————, ————— years old, of legal age, ————, and residing at (hereinafter referred to as the ("EMPLOYEE").

WITNESSETH : That

WHEREAS, the BANK, cognizant of its social responsibility, realizes that there is a need to provide disabled and handicapped persons gainful employment and opportunities to realize their potentials, uplift their socio-economic well being and welfare and make them productive, self-reliant and useful citizens to enable them to fully integrate in the mainstream of society;

WHEREAS, there are certain positions in the BANK which may be filled-up by disabled and handicapped persons, particularly deaf-mutes, and the BANK ha[s] been approached by some civic-minded citizens and authorized government agencies [regarding] the possibility of hiring handicapped workers for these positions;

WHEREAS, the EMPLOYEE is one of those handicapped workers who [were] recommended for possible employment with the BANK;

NOW, THEREFORE, for and in consideration of the foregoing premises and in compliance with Article 80 of the Labor Code of the Philippines as amended, the BANK and the EMPLOYEE have entered into this Employment Contract as follows:

1. The BANK agrees to employ and train the EMPLOYEE, and the EMPLOYEE agrees to diligently and faithfully work with the BANK, as Money Sorter and Counter.

2. The EMPLOYEE shall perform among others, the following duties and responsibilities:

i. Sort out bills according to color;

ii. Count each denomination per hundred, either manually or with the aid of a counting machine;

39

iii. Wrap and label bills per hundred;

iv. Put the wrapped bills into bundles; and

v. Submit bundled bills to the bank teller for verification.

3. The EMPLOYEE shall undergo a training period of one (1) month, after which the BANK shall determine whether or not he/she should be allowed to finish the remaining term of this Contract.

4. The EMPLOYEE shall be entitled to an initial compensation of P118.00 per day, subject to adjustment in the sole judgment of the BANK, payable every 15th and end of the month.1âwphi1.nêt

5. The regular work schedule of the EMPLOYEE shall be five (5) days per week, from Mondays thru Fridays, at eight (8) hours a day. The EMPLOYEE may be required to perform overtime work as circumstance may warrant, for which overtime work he/she [shall] be paid an additional compensation of 125% of his daily rate if performed during ordinary days and 130% if performed during Saturday or [a] rest day.

6. The EMPLOYEE shall likewise be entitled to the following benefits:

i. Proportionate 13th month pay based on his basic daily wage.

ii. Five (5) days incentive leave.

iii. SSS premium payment.

7. The EMPLOYEE binds himself/herself to abide [by] and comply with all the BANK Rules and Regulations and Policies, and to conduct himself/herself in a manner expected of all employees of the BANK.

8. The EMPLOYEE acknowledges the fact that he/she had been employed under a special employment program of the BANK, for which reason the standard hiring requirements of the BANK were not applied in his/her case. Consequently, the EMPLOYEE acknowledges and accepts the fact that the terms and conditions of the employment generally observed by the BANK with respect to the BANK's regular employee are not applicable to the EMPLOYEE, and that therefore, the terms and conditions of the EMPLOYEE's employment with the BANK shall be governed solely and exclusively by this Contract and by the applicable rules and regulations that the Department of Labor and Employment may issue in connection with the employment ofdisabled and handicapped workers. More specifically, the EMPLOYEE hereby acknowledges that the provisions of Book Six of the Labor Code of the Philippines as amended, particularly on regulation of employment and separation pay are not applicable to him/her.

9. The Employment Contract shall be for a period of six (6) months or from —— to —— unless earlier terminated by the BANK for any just or reasonable cause. Any continuation or extension of this Contract shall be in writing and therefore this Contract will automatically expire at the end of its terms unless renewed in writing by the BANK.

IN WITNESS WHEREOF, the parties, have hereunto affixed their signature[s] this —— day of ———, ——— at Intramuros, Manila, Philippines.

In 1988, two (2) deaf-mutes were hired under this Agreement; in 1989 another two (2); in 1990, nineteen (19); in 1991 six (6); in 1992, six (6) and in 1993, twenty-one (21). Their employment[s] were renewed every six months such that by the time this case arose, there were fifty-six (56) deaf-mutes who were employed by respondent under the said employment agreement. The last one was Thelma Malindoy who was employed in 1992 and whose contract expired on July 1993.

xxx xxx xxx

40

Disclaiming that complainants were regular employees, respondent Far East Bank and Trust Company maintained that complainants who are a special class of workers — the hearing impaired employees were hired temporarily under [a] special employment arrangement which was a result of overtures made by some civic and political personalities to the respondent Bank; that complainant[s] were hired due to "pakiusap" which must be considered in the light of the context career and working environment which is to maintain and strengthen a corps of professionals trained and qualified officers and regular employees who are baccalaureate degree holders from excellent schools which is an unbending policy in the hiring of regular employees; that in addition to this, training continues so that the regular employee grows in the corporate ladder; that the idea of hiring handicapped workers was acceptable to them only on a special arrangement basis; that it was adopted the special program to help tide over a group of workers such as deaf-mutes like the complainants who could do manual work for the respondent Bank; that the task of counting and sorting of bills which was being performed by tellers could be assigned to deaf-mutes that the counting and sorting of money are tellering works which were always logically and naturally part and parcel of the tellers' normal functions; that from the beginning there have been no separate items in the respondent Bank plantilla for sortes or counters; that the tellers themselves already did the sorting and counting chore as a regular feature and integral part of their duties (p. 97, Records); that through the "pakiusap" of Arturo Borjal, the tellers were relieved of this task of counting and sorting bills in favor of deaf-mutes without creating new positions as there is no position either in the respondent or in any other bank in the Philippines which deals with purely counting and sorting of bills in banking operations.

Petitioners specified when each of them was hired and dimissed, viz: 7

NAME OF PETITIONER WORKPLACE Date Hired Date Dismissed

1. MARITES BERNARDO Intramuros 12-Nov-90 17-Nov-93

2. ELVIRA GO DIAMANTE Intramuros 24-Jan-90 11-Jan-94

3. REBECCA E. DAVID Intramuros 16-Apr-90 23-Oct-93

4. DAVID P. PASCUAL Bel-Air 15-Oct-88 21-Nov-94

5. RAQUEL ESTILLER Intramuros 2-Jul-92 4-Jan-94

6. ALBERT HALLARE West 4-Jan-91 9-Jan-94

7. EDMUND M. CORTEZ Bel-Air 15-Jan-91 3-Dec-93

8. JOSELITO O. AGDON Intramuros 5-Nov-90 17-Nov-93

9. GEORGE P. LIGUTAN JR. Intramuros 6-Sep-89 19-Jan-94

10. CELSO M. YAZAR Intramuros 8-Feb-93 8-Aug-93

11. ALEX G. CORPUZ Intramuros 15-Feb-93 15-Aug-93

12. RONALD M. DELFIN Intramuros 22-Feb-93 22-Aug-93

13. ROWENA M. TABAQUERO Intramuros 22-Feb-93 22-Aug-93

14. CORAZON C. DELOS REYES Intramuros 8-Feb-93 8-Aug-93

15. ROBERT G. NOORA Intramuros 15-Feb-93 15-Aug-93

16. MILAGROS O. LEQUIGAN Intramuros 1-Feb-93 1-Aug-93

17. ADRIANA F. TATLONGHARI Intramuros 22-Jan-93 22-Jul-93

18. IKE CABUNDUCOS Intramuros 24-Feb-93 24-Aug-93

19. COCOY NOBELLO Intramuros 22-Feb-93 22-Aug-93

20. DORENDA CATIMBUHAN Intramuros 15-Feb-93 15-Aug-93

21. ROBERT MARCELO West 31 JUL 93 8 1-Aug-93

22. LILIBETH Q. MARMOLEJO West 15-Jun-90 21-Nov-93

23. JOSE E. SALES West 6-Aug-92 12-Oct-93

24. ISABEL MAMAUAG West 8-May-92 10-Nov-93

25. VIOLETA G. MONTES Intramuros 2-Feb-90 15-Jan-94

26. ALBINO TECSON Intramuros 7-Nov-91 10-Nov-93

27. MELODY B. GRUELA West 28-Oct-91 3-Nov-93

28. BERNADETH D. AGERO West 19-Dec-90 27-Dec-93

29. CYNTHIA DE VERA Bel-Air 26-Jun-90 3-Dec-93

30. LANI R. CORTEZ Bel-Air 15-Oct-88 10-Dec-93

31. MARIA ISABEL B.CONCEPCION West 6-Sep-90 6-Feb-94

32. DINDO VALERIO Intramuros 30-May-93 30-Nov-93

33. ZENAIDA MATA Intramuros 10-Feb-93 10-Aug-93

34. ARIEL DEL PILAR Intramuros 24-Feb-93 24-Aug-93

35. MARGARET CECILIA CANOZA Intramuros 27-Jul-90 4-Feb-94

36. THELMA SEBASTIAN Intramuros 12-Nov-90 17-Nov-93

37. MA. JEANETTE CERVANTES West 6-Jun-92 7-Dec-93

38. JEANNIE RAMIL Intramuros 23-Apr-90 12-Oct-93

39. ROZAIDA PASCUAL Bel-Air 20-Apr-89 29-Oct-93

40. PINKY BALOLOA West 3-Jun-91 2-Dec-93

41. ELIZABETH VENTURA West 12-Mar-90 FEB 94 [sic]

42. GRACE S. PARDO West 4-Apr-90 13-Mar-94

43. RICO TIMOSA Intramuros 28-Apr-93 28-Oct-93

As earlier noted, the labor arbiter and, on appeal, the NLRC ruled against herein petitioners. Hence, this recourse to this Court. 9

The Ruling of the NLRC

In affirming the ruling of the labor arbiter that herein petitioners could not be deemed regular employees under Article 280 of the Labor Code, as amended, Respondent Commission ratiocinated as follows:

41

We agree that Art. 280 is not controlling herein. We give due credence to the conclusion that complainants were hired as an accommodation to [the] recommendation of civic oriented personalities whose employment[s] were covered by . . . Employment Contract[s] with special provisions on duration of contract as specified under Art. 80. Hence, as correctly held by the Labor Arbiter a quo, the terms of the contract shall be the law between the parties. 10

The NLRC also declared that the Magna Carta for Disabled Persons was not applicable, "considering the prevailing circumstances/milieu of the case."

Issues

In their Memorandum, petitioners cite the following grounds in support of their cause:

I. The Honorable Commission committed grave abuse of discretion in holding that the petitioners — money sorters and counters working in a bank — were not regular employees.

II. The Honorable Commission committed grave abuse of discretion in holding that the employment contracts signed and renewed by the petitioners — which provide for a period of six (6) months — were valid.

III. The Honorable Commission committed grave abuse of discretion in not applying the provisions of the Magna Carta for the Disabled (Republic Act No. 7277), on proscription against discrimination against disabled persons. 11

In the main, the Court will resolve whether petitioners have become regular employees.

This Court's Ruling

The petition is meritorious. However, only the employees, who worked for more than six months and whose contracts were renewed are deemed regular. Hence, their dismissal from employement was illegal.

Preliminary Matter:

Propriety of Certiorari

Respondent Far East Bank and Trust Company argues that a review of the findings of facts of the NLRC is not allowed in a petition for certiorari. Specifically, it maintains that the Court cannot pass upon the findings of public respondent that petitioners were not regular employees.

True, the Court, as a rule, does not review the factual findings of public respondents in a certiorari proceeding. In resolving whether the petitioners have become regular employees, we

shall not change the facts found by the public respondent. Our task is merely to determine whether the NLRC committed grave abuse of discretion in applying the law to the established facts, as above-quoted from the assailed Decision.

Main Issue

Are Petitioners Regular Employee?

Petitioners maintain that they should be considered regular employees, because their task as money sorters and counters was necessary and desirable to the business of respondent bank. They further allege that their contracts served merely to preclude the application of Article 280 and to bar them from becoming regular employees.

Private respondent, on the other hand, submits that petitioners were hired only as "special workers and should not in any way be considered as part of the regular complement of the Bank." 12 Rather, they were "special" workers under Article 80 of the Labor Code. Private respondent contends that it never solicited the services of petitioners, whose employment was merely an "accommodation" in response to the requests of government officials and civic-minded citizens. They were told from the start, "with the assistance of government representatives," that they could not become regular employees because there were no plantilla positions for "money sorters," whose task used to be performed by tellers. Their contracts were renewed several times, not because of need "but merely for humanitarian reasons." Respondent submits that "as of the present, the "special position" that was created for the petitioners no longer exist[s] in private respondent [bank], after the latter had decided not to renew anymore their special employment contracts."

At the outset, let it be known that this Court appreciates the nobility of private respondent's effort to provide employment to physically impaired individuals and to make them more productive members of society. However, we cannot allow it to elude the legal consequences of that effort, simply because it now deems their employment irrelevant. The facts, viewed in light of the Labor Code and the Magna Carta for Disabled Persons, indubitably show that the petitioners, except sixteen of them, should be deemed regular employees. As such, they have acquired legal rights that this Court is duty-bound to protect and uphold, not as a matter of compassion but as a consequence of law and justice.

The uniform employment contracts of the petitioners stipulated that they shall be trained for a period of one month, after which the employer shall determine whether or not they should be allowed to finish the 6-month term of the contract. Furthermore, the employer may terminate the contract at any time for a just and reasonable cause. Unless renewed in writing by the employer, the contract shall automatically expire at the end of the term.1âwphi1.nêt

According to private respondent, the employment contracts were prepared in accordance with Article 80 of the Labor code, which provides;

Art. 80. Employment agreement. — Any employer who employs handicapped workers shall enter into an employment agreement with them, which agreement shall include:

42

(a) The names and addresses of the handicapped workers to be employed;

(b) The rate to be paid the handicapped workers which shall be not less than seventy five (75%) per cent of the applicable legal minimum wage;

(c) The duration of employment period; and

(d) The work to be performed by handicapped workers.

The employment agreement shall be subject to inspection by the Secretary of Labor or his duly authorized representatives.

The stipulations in the employment contracts indubitably conform with the aforecited provision. Succeeding events and the enactment of RA No. 7277 (the Magna Carta for Disabled Persons), 13 however, justify the application of Article 280 of the Labor Code.

Respondent bank entered into the aforesaid contract with a total of 56 handicapped workers and renewed the contracts of 37 of them. In fact, two of them worked from 1988 to 1993. Verily, the renewal of the contracts of the handicapped workers and the hiring of others lead to the conclusion that their tasks were beneficial and necessary to the bank. More important, these facts show that they were qualified to perform the responsibilities of their positions. In other words, their disability did not render them unqualified or unfit for the tasks assigned to them.

In this light, the Magna Carta for Disabled Persons mandates that a qualified disabled employee should be given the same terms and conditions of employment as a qualified able-bodied person. Section 5 of the Magna Carta provides:

Sec. 5. Equal Opportunity for Employment. — No disabled person shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able bodied person.

The fact that the employees were qualified disabled persons necessarily removes the employment contracts from the ambit of Article 80. Since the Magna Carta accords them the rights of qualified able-bodied persons, they are thus covered by Article 280 of the Labor Code, which provides:

Art. 280. Regular and Casual Employment. — The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the

completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.

An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That, any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered as regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.

The test of whether an employee is regular was laid down in De Leon v. NLRC, 14 in which this Court held:

The primary standard, therefore, of determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual trade or business of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. Also if the employee has been performing the job for at least one year, even if the performance is not continuous and merely intermittent, the law deems repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensibility of that activity to the business. Hence, the employment is considered regular, but only with respect to such activity, and while such activity exist.

Without a doubt, the task of counting and sorting bills is necessary and desirable to the business of respondent bank. With the exception of sixteen of them, petitioners performed these tasks for more than six months. Thus, the following twenty-seven petitioners should be deemed regular employees: Marites Bernardo, Elvira Go Diamante, Rebecca E. David, David P. Pascual, Raquel Estiller, Albert Hallare, Edmund M. Cortez, Joselito O. Agdon, George P. Ligutan Jr., Lilibeth Q. Marmolejo, Jose E. Sales, Isabel Mamauag, Violeta G. Montes, Albino Tecson, Melody V. Gruela, Bernadeth D. Agero, Cynthia de Vera, Lani R. Cortez, Ma. Isabel B. Concepcion, Margaret Cecilia Canoza, Thelma Sebastian, Ma. Jeanette Cervantes, Jeannie Ramil, Rozaida Pascual, Pinky Baloloa, Elizabeth Ventura and Grace S. Pardo.

As held by the Court, "Articles 280 and 281 of the Labor Code put an end to the pernicious practice of making permanent casuals of our lowly employees by the simple expedient of extending to them probationary appointments, ad infinitum." 15 The contract signed by petitioners is akin to a probationary employment, during which the bank determined the employees' fitness for the job. When the bank renewed the contract after the lapse of the six-month probationary period, the employees thereby became regular employees. 16 No employer is allowed to determine indefinitely the fitness of its employees.

As regular employees, the twenty-seven petitioners are entitled to security of tenure; that is, their services may be terminated only for a just or authorized cause. Because respondent failed to show such cause, 17 these twenty-seven petitioners are deemed illegally dismissed and therefore entitled

43

to back wages and reinstatement without loss of seniority rights and other privileges. 18 Considering the allegation of respondent that the job of money sorting is no longer available because it has been assigned back to the tellers to whom it originally belonged, 18 petitioners are hereby awarded separation pay in lieu of reinstatement. 20

Because the other sixteen worked only for six months, they are not deemed regular employees and hence not entitled to the same benefits.

Applicability of the

Brent Ruling

Respondent bank, citing Brent School v. Zamora 21 in which the Court upheld the validity of an employment contract with a fixed term, argues that the parties entered into the contract on equal footing. It adds that the petitioners had in fact an advantage, because they were backed by then DSWD Secretary Mita Pardo de Tavera and Representative Arturo Borjal.

We are not persuaded. The term limit in the contract was premised on the fact that the petitioners were disabled, and that the bank had to determine their fitness for the position. Indeed, its validity is based on Article 80 of the Labor Code. But as noted earlier, petitioners proved themselves to be qualified disabled persons who, under the Magna Carta for Disabled Persons, are entitled to terms and conditions of employment enjoyed by qualified able-bodied individuals; hence, Article 80 does not apply because petitioners are qualified for their positions. The validation of the limit imposed on their contracts, imposed by reason of their disability, was a glaring instance of the very mischief sought to be addressed by the new law.

Moreover, it must be emphasized that a contract of employment is impressed with public interest. 22 Provisions of applicable statutes are deemed written into the contract, and the "parties are not at liberty to insulate themselves and their relationships from the impact of labor laws and regulations by simply contracting with each other." 23 Clearly, the agreement of the parties regarding the period of employment cannot prevail over the provisions of the Magna Carta for Disabled Persons, which mandate that petitioners must be treated as qualified able-bodied employees.

Respondent's reason for terminating the employment of petitioners is instructive. Because the Bangko Sentral ng Pilipinas (BSP) required that cash in the bank be turned over to the BSP during business hours from 8:00 a.m. to 5:00 p.m., respondent resorted to nighttime sorting and counting of money. Thus, it reasons that this task "could not be done by deaf mutes because of their physical limitations as it is very risky for them to travel at night." 24 We find no basis for this argument. Travelling at night involves risks to handicapped and able-bodied persons alike. This excuse cannot justify the termination of their employment.

Other Grounds Cited by Respondent

Respondent argues that petitioners were merely "accommodated" employees. This fact does not change the nature of their employment. As earlier noted, an employee is regular because of the

nature of work and the length of service, not because of the mode or even the reason for hiring them.

Equally unavailing are private respondent's arguments that it did not go out of its way to recruit petitioners, and that its plantilla did not contain their positions. In L. T. Datu v. NLRC, 25 the Court held that "the determination of whether employment is casual or regular does not depend on the will or word of the employer, and the procedure of hiring . . . but on the nature of the activities performed by the employee, and to some extent, the length of performance and its continued existence."

Private respondent argues that the petitioners were informed from the start that they could not become regular employees. In fact, the bank adds, they agreed with the stipulation in the contract regarding this point. Still, we are not persuaded. The well-settled rule is that the character of employment is determined not by stipulations in the contract, but by the nature of the work performed. 26 Otherwise, no employee can become regular by the simple expedient of incorporating this condition in the contract of employment.

In this light, we iterate our ruling in Romares v. NLRC: 27

Art. 280 was emplaced in our statute books to prevent the circumvention of the employee's right to be secure in his tenure by indiscriminately and completely ruling out all written and oral agreements inconsistent with the concept of regular employment defined therein. Where an employee has been engaged to perform activities which are usually necessary or desirable in the usual business of the employer, such employee is deemed a regular employee and is entitled to security of tenure notwithstanding the contrary provisions of his contract of employment.

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At this juncture, the leading case of Brent School, Inc. v. Zamora proves instructive. As reaffirmed in subsequent cases, this Court has upheld the legality of fixed-term employment. It ruled that the decisive determinant in "term employment" should not be the activities that the employee is called upon to perform but the day certain agreed upon the parties for the commencement and termination of their employment relationship. But this Court went on to say that where from the circumstances it is apparent that the periods have been imposed to preclude acquisition of tenurial security by the employee, they should be struck down or disregarded as contrary to public policy and morals.

In rendering this Decision, the Court emphasizes not only the constitutional bias in favor of the working class, but also the concern of the State for the plight of the disabled. The noble objectives of Magna Carta for Disabled Persons are not based merely on charity or accommodation, but on justice and the equal treatment of qualifiedpersons, disabled or not. In the present case, the handicap of petitioners (deaf-mutes) is not a hindrance to their work. The eloquent proof of this statement is the repeated renewal of their employment contracts. Why then should they be

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dismissed, simply because they are physically impaired? The Court believes, that, after showing their fitness for the work assigned to them, they should be treated and granted the same rights like any other regular employees.

In this light, we note the Office of the Solicitor General's prayer joining the petitioners' cause. 28

WHEREFORE, premises considered, the Petition is hereby GRANTED. The June 20, 1995 Decision and the August 4, 1995 Resolution of the NLRC are REVERSED and SET ASIDE. Respondent Far East Bank and Trust Company is hereby ORDERED to pay back wages and separation pay to each of the following twenty-seven (27) petitioners, namely, Marites Bernardo, Elvira Go Diamante, Rebecca E. David, David P. Pascual, Raquel Estiller, Albert Hallare, Edmund M. Cortez, Joselito O. Agdon, George P. Ligutan Jr., Liliberh Q. Marmolejo, Jose E. Sales, Isabel Mamauag, Violeta G. Montes, Albino Tecson, Melody V. Gruela, Bernadeth D. Agero, Cynthia de Vera, Lani R. Cortez, Ma. Isabel B. Concepcion, Margaret Cecilia Canoza, Thelma Sebastian, Ma. Jeanette Cervantes, Jeannie Ramil, Rozaida Pascual, Pinky Baloloa, Elizabeth Ventura and Grace S. Pardo. The NLRC is hereby directed to compute the exact amount due each of said employees, pursuant to existing laws and regulations, within fifteen days from the finality of this Decision. No costs.1âwphi1.nêt

SO ORDERED.

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