FIRST DIVISION

JHORIZALDY UY, Petitioner, G.R. No. 174631 Present: CORONA, C.J., Chairperson, LEONARDO-DE CASTRO, BERSAMIN, DEL CASTILLO, and VILLARAMA, JR., JJ.

- versus -

Promulgated: CENTRO CERAMICA CORPORATION AND/OR October 19, 2011 RAMONITA Y. SY and MILAGROS U. GARCIA, Respondents. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
VILLARAMA, JR., J.: Before us is a petition for review on certiorari under Rule 45 assailing the Decision[1] dated April 21, 2006 and Resolution[2]dated September 7, 2006 of the Court of Appeals (CA) in CA-G.R. SP No. 88061. The CA annulled and set aside the Decision[3]dated July 29, 2004 rendered by the National Labor Relations Commission (NLRC) in NLRC NCR CA No. 035557-03 which reversed the Labor Arbiters ruling that petitioner was not illegally dismissed.

Factual Antecedents Petitioner Jhorizaldy Uy was hired by respondent Centro Ceramica Corporation as full-time sales executive on March 21, 1999 under probationary employment for six months. He became a regular employee on May 1, 2000 with

monthly salary of P7,000.00 and P1,500.00 transportation allowance, plus commission. On March 18, 2002, petitioner filed a complaint for illegal dismissal against the respondent company, its President Ramonita Y. Sy (Sy) and Vice-President Milagros Uy-Garcia (Garcia). Petitioner alleged that his predicament began when former VP Garcia was rehired by respondent company in the last quarter of 2001. Certain incidents involving longtime clients led to a strained working relationship between him and Garcia. On February 19, 2002 after their weekly sales meeting, he was informed by his superior, Sales Supervisor Richard Agcaoili, that he (petitioner) was to assume a new position in the marketing department, to which he replied that he will think it over. His friends had warned him to be careful saying mainit ka kay Ms. Garcia. That same day, he was summoned by Sy and Garcia for a closeddoor meeting during which Sy informed him of the termination of his services due to insubordination and advised him to turn over his samples and files immediately. Sy even commented that member ka pa naman ng [S]ingles for [C]hrist pero napakatigas naman ng ulo mo. On February 21, 2002, he was summoned again by Sy but prior to this he was already informed by Agcaoili that the spouses Sy will give him all that is due to him plus goodwill money to settle everything. However, during his meeting with Sy, he asked for his termination paper and thereupon Sy told him that If thats what you want I will give it to you. She added that pag-isipan mo ang gagawin mo dahil kilala mo naman kami we are powerful.[4] Petitioner further narrated that on February 22, 2002, he turned over company samples, accounts and receivables to Agcaoili. Thereafter, he did not report for work anymore. But on March 6, 2002, an employee of respondent company presented to him at his apartment the following memorandum:
MEMO OF NOTICE OF CHARGES MEMORANDUM: TO: FROM: JHORIZALDY B. UY RAMONITA Y. SY

RE: DATE:

FAILURE TO MEET QUOTA FOR SALES EXECUTIVE February 21, 2002

Records show that you have failed to meet the quota for sales executives, set for the period from 1999 to 2001 in violation of your contract of employment. In view of the foregoing, please explain in writing within twenty[-]four (24) hours from receipt hereof, why the company should not terminate your contract of employment.[5]

He did not receive said memo because it was not written on the company stationery and besides he had already been dismissed. As to his alleged low output, he was surprised considering that last January 2002, he was informed by Agcaoili that management was satisfied with his performance and he ranked second to the top performer, Edwin I. Hirang. By that time, all of the sales people of the company could not meet the P1.5 Million sales quota, so respondents are clearly zeroing in on him. Finally, on March 13, 2002, respondents sent him another memo, which reads:
MEMO OF NOTICE OF CHARGES INTER-OFFICE MEMORANDUM NO. 2: TO: THRU: FROM: RE: LEAVE DATE: JHORIZALDY B. UY RICHARD B. AGCAOILI RAMONITA Y. SY NOTICE OF CHARGE OF ABSENCE WITHOUT March 13, 2002

Records show that since February 22, 2002, to date, you have failed to report for work, without informing your employer of the reason therefor and without securing proper leave in violation of your contract of employment and existing company rules and regulations. Further, you have refused to receive any of your monetary entitlements such as salary, commission and other amounts due to you despite notice that the same are available to you for payment.

Further, to this date, you have not submitted any explanation in writing in response to our Memo dated February 21, 2002, requiring you to explain your failure to meet your quota as Sales Executive. In view of the foregoing, please explain in writing twenty four (24) hours from receipt hereof, why the company should not terminate your contract of employment for serious violations of your employment contract as indicated above.[6]

He referred the above letter to his counsel who sent the following letterreply:
MS. RAMONITA Y. SY Centro Ceramica Corporation 225 EDSA, East Greenhills Mandaluyong City We are writing you in behalf of Mr. Jhorizaldy B. Uy who used to be a Sales Executive of your firm. On February 19, 2002, you informed him that from Sales Executive he was to assume a new position in the marketing department. He refused and when he later said that pag-iisipan ko pa you charged him with insubordination. Your Ms. Nita Garcia even lamented in this wise single (for Christ) ka pa naman. Right then you terminated his services and was directed to turn over everything that he had which was company owned and it was on February 22, 2002 that the turn over was made. On or about March 6, 2002 an employee of your company saw him in his apartment giving him a memorandum to explain his alleged failure to meet the quota as Sales Executive. He admits with c[a]ndor that he did not receive the said memorandum because it was written not on the company stationary. Just the same the contents of the said letter has bec[o]me irrelevant because he has been already dismissed as of February 19, 2002 and as regards the low output he says that all of the sales people could not meet the quota and why zero in on him. Then on Mach 13, 2002 you sent him a memorandum to explain in writing within twenty four (24) hours why he should not be dismissed for his alleged absence without leave.

You must have been advised by someone that your dismissal of Mr. Uy on February 19, 2002 is doubly illegal, i.e., for lack of due process and sufficient cause and the March 13, 2002 memorandum is to make up for such lapse so that if Mr. Uy files a case of illegal dismissal, you can conveniently say that he violated his contract of employment and that he was on absence without leave. Nice move, but it may not be nice later on. x x x x[7]

For his illegal termination, petitioner asserted that he is entitled to his unpaid commission, tax refund, back wages and reinstatement. On the other hand, respondents denied dismissing petitioner. They countered that petitioners poor sales performance did not improve even after he was regularized. On February 18, 2002, management met with the Sales Group on a per agent basis to discuss sales performance, possible salary realignment and revamp of the Sales Group. Agcaoili relayed to petitioner the poor assessment of his sales performance and the possibility that he will be transferred to another department although there was yet no official decision on the matter. Petitioner then told Agcaoili that he was aware of the problem and his possible termination, prompting the latter to convince the former to consider voluntarily resigning from the company rather than be terminated. The next day, February 19, 2002, petitioner talked anew to Agcaoili and informed the latter that he will just resign from the company and sought an appointment with Sy. When petitioner inquired how much he will get if he will resign, Sy advised him that he would get salaries and commissions to which he is legally entitled; hence, for items sold and already delivered, he will be receiving the commission in full, but for those sold but yet to be delivered, as per company policy, he will receive the commissions only upon delivery of the items. Upon hearing this, petitioner suddenly got mad and said that if that is the case, the company president should just terminate him and walked out. Petitioner was given a chance, through the two memos issued to him, to explain his failure to meet the prescribed sales quota and his failure to report for work without informing the company of the reason therefor. But he never submitted his explanations to his violations of the contract of employment, and abandoned his job which is another ground for terminating his employment. While

it would appear that petitioner aimed to secure his alleged money claims from the respondents, this does not justify abandonment of his work as respondents never had the intention of terminating his services. Respondents maintained that petitioner voluntarily left his workplace and refused to report for work as in fact he indicated to his sales supervisor that he will just resign; however, he never submitted a letter of resignation.[8] Respondents also denied the claims of petitioner regarding an alleged souring of his relations with Garcia, as in fact it was petitioner who clearly had a personal grudge against her and not the other way around. The alleged incidents with client actually showed it was petitioner who was discourteous and abusive. There was likewise no reason for respondent Sy to say they were powerful because petitioner did not at all threaten to sue or do something to their prejudice. To refute petitioners unfounded allegations, respondents presented the affidavits of the following: (1) co-employee Rommel Azarraga who admitted he was the person who warned petitioner to be careful and told him mainit ka kay Mrs. Garcia and explained that he only made such statement in order to scare petitioner and convince him to change his attitude; the truth is that Mrs. Garcia had not spoken to him about harbouring any ill feelings towards petitioner and neither does he know of any incident or circumstance which may give rise to such ill feeling of Mrs. Garcia towards petitioner; (2) Richard Agcaoili who corroborated the respondents claims, denying that petitioner was terminated due to insubordination; he further denied having told petitioner that management was satisfied with his performance, the truth being that while petitioner may have ranked second to the top performer, there was actually only two remaining senior sales agents while the rest have more or less six months experience; considering the number of years of his service to the company, petitioner should have improved as against other agents most of whom were newly-hired and still under probation; and (3) Arnulfo Merecido, respondent companys employee (warehouse helper) who claimed that he had a fistfight with petitioner sometime in June 2000 which arose from the latters insulting remarks regarding his family.[9] Labor Arbiters Ruling

In his decision[10] dated April 8, 2003, Labor Arbiter Elias H. Salinas dismissed petitioners complaint on the basis of his finding that it was petitioner who opted not to report for work since February 22, 2002, after offering to resign (as told to his supervisor) because he could not accept his possible transfer to another department. NLRCs Ruling Petitioner appealed to the NLRC which reversed the Labor Arbiters ruling. The NLRC found that the dismissal of petitioner was made under questionable circumstances, thus giving weight to petitioners assertion that he was being singled out notwithstanding that all sales personnel similarly could not meet the P1.5 million monthly sales quota. Such finding is reinforced by the fact that no sanction was imposed on petitioner or any other employee for the supposed failure to meet the quota, thereby creating the impression that the situation was tolerated by the respondents. The NLRC thus decreed:
WHEREFORE, premises considered, the Decision dated April 8, 2003 is set aside and reversed. A new one is entered finding complainant to have been illegally dismissed and thus entitled to reinstatement with backwages. Respondent Centro Ceramica Corporation is hereby ordered to pay complainant his backwages reckoned from the date of his dismissal on February 19, 2002 up to the date of the promulgation of this decision. As reinstatement is no longer feasible, complainant should instead be paid separation pay equivalent to one half (1/2) month pay for every year of service. In addition, respondents company should pay complainant his unpaid commission in the amount of P16,581.00. All other claims are dismissed for lack of merit. SO ORDERED.[11]

Court of Appeals Ruling Respondents elevated the case to the CA which reversed the NLRC and dismissed petitioners complaint. According to the CA, petitioner by his own account had admitted that it was he who asked for his dismissal when he narrated

that during his meeting with Sy, he had asked for his termination paper and she threatened to do so if that was what he wanted. It also noted the affidavit of Agcaoili who attested that petitioner was merely informed of the decision to transfer him to another department, which is not denied by the petitioner; said witness also said that the turnover of company documents and files was voluntary on the part of petitioner who expressed desire to resign from the company. Another statement considered by the CA is that made by witness Azarraga who explained that he only mentioned the name of Ms. Garcia to petitioner when he warned the latter to be careful, simply because she is a member of the Couples for Christ who may have an influence over petitioner who is a member of the Singles for Christ. As to the memos sent by the company to petitioners residence, this shows that it has not yet terminated the employment of petitioner. Thus, the CA held that the evidence on record supports the Labor Arbiters finding that petitioner informally severed the employment relationship as manifested by his voluntary transfer of his accountabilities to his supervisor and thereafter his act of not reporting for work anymore. Petitioners motion for reconsideration having been denied, the present petition was filed in this Court.

Issue The sole issue to be addressed is whether petitioner was dismissed by the respondents or voluntarily severed his employment by abandoning his job.

Arguments of the Parties Petitioner assails the CAs misappreciation of the facts, completely relying on respondents allegations particularly on what transpired during the meeting with respondents Sy and Garcia, of which the appellate court made a twisted interpretation of their conversation. Hence, instead of decreeing petitioners illegal termination based on Sys verbal dismissal without just cause and due process, the CA proceeded to conclude that petitioner voluntarily and informally severed his

relation with the company. As to the affidavit of Agcaoili, his statement that he merely informed petitioner of the decision to transfer him to another department is of no moment because what matters is the action of Sy who dismissed petitioner outright. Moreover, Agcaoili, being under the employ of respondents, would logically be biased and he would naturally tend to protect the company by his statements regarding petitioners case. On the other hand, Azarragas confusing and inconsistent statements only confirmed that Garcia indeed had a grudge against petitioner, as he could not give a rational explanation for warning petitioner to be careful with Garcia. Petitioner further contends that his act of turning over his accountabilities to his supervisor cannot be considered voluntary on his part as it was done by him knowing that he was already terminated and upon the specific instructions of Sy and Garcia. The CA therefore erred in relying on the unbelievable submission of respondents that such transfer of company documents and samples was indicative of petitioners desire to resign. It failed to see that petitioners reaction to his impending transfer to another department (pag-iisipan ko pa) was due to his not coming to terms with Garcia and aware of the warning earlier given by his friends. Under this scenario, the animosity between petitioner and Garcia was evident such that Garcia eventually prevailed upon Sy to terminate petitioners services. Unfortunately, it was on the very same day that petitioner was verbally terminated by Sy on the ground of insubordination and ordered to immediately turn over his files and samples. It was on February 21, 2002 that Agcaoili told petitioner that the company will give him all that is due him plus goodwill money, and in a meeting with Sy he had asked for his termination paper because he was in fact already terminated on February 19, 2002 but she responded by saying that if that was what he wanted she will give it to him and even threatened him to think because respondents are powerful. In their Comment, respondents assert that the CA committed no reversible error in concluding that petitioner was not illegally terminated. They stress that the evidence clearly established that petitioner was not dismissed but required merely to explain why he failed to report for work after meeting the company president. As to petitioners act of turning over his accountabilities, respondents argue that this cannot be considered proof of his illegal dismissal because it was done voluntarily in line with his proposed resignation. Respondent company was

about to conduct its investigation on petitioner who went AWOL since February 19, 2002 but then he refused to accept the memos sent to him, thus confirming categorically that respondents were investigating his failure to report for work and giving him all the opportunity to explain his absence. The Courts Ruling We grant the petition. As a general rule, only questions of law may be allowed in a petition for review on certiorari.[12]Considering, however, that the Labor Arbiters findings were reversed by the NLRC, whose Decision was in turn overturned by the CA, reinstating the Labor Arbiters Decision, it behooves the Court to reexamine the records and resolve the conflicting rulings.[13] Scrutinizing the records, we find that the NLRCs finding of illegal dismissal is supported by the totality of evidence and more consistent with logic and ordinary human experience than the common finding of the CA and Labor Arbiter that petitioner informally severed his employment relationship with the company. It hardly convinces us that after declining his supposed transfer to another department as per the information relayed to him by his supervisor, petitioner would readily turn over his files and samples unless something critical indeed took place in his subsequent closed-door meeting with Sy and Garcia. As correctly pointed out by petitioner, it is irrelevant whether or not he had earlier inquired from his supervisor what he will receive if he offers instead to resign upon being told of his impending transfer, for what matters is the action of Sy on his employment status. If ever petitioner momentarily contemplated resignation and such was the impression he conveyed in his talk with his supervisor prior to the meeting with Sy, such is borne by circumstances indicating Garcias antagonism towards petitioner. In any event, whether such perception of a strained working relationship with Garcia was mistaken or not is beside the point. The crucial factor is the verbal order directly given by Sy, the company president, for petitioner to immediately turn over his accountabilities. Notably, Sy got irked when petitioner asked for his termination paper. Petitioner apparently wanted to ascertain whether such summary dismissal was official, and it was well within his right to demand

that he be furnished with a written notice in order to apprise him of the real ground for his termination. Contrary to respondents theory that petitioners act of turning over the company files and samples is proof of his voluntary informal resignation rather than of the summary dismissal effected by management, no other plausible explanation can be made of such immediate turn over except that petitioner directly confirmed from the company president herself that he was already being dismissed. The subsequent memos sent to petitioners residence after he did not anymore report for work only reinforce the conclusion that the belated written notice of the charge against him his alleged failure to meet the prescribed sales quota was an afterthought on the part of respondents who may have realized that they failed to observe due process in terminating him. That respondents would still require a written explanation for petitioners poor sales performance after the latter already complied with Sys directive to turn over all his accountabilities is simply inconsistent with their claim that petitioner offered to resign and voluntarily relinquished possession of company files and samples when told of his impending transfer. In other words, petitioner was not given any opportunity to defend himself from whatever charges hurled by management against him, such as poor sales performance as relayed to him by his supervisor, when Sy unceremoniously terminated him which must have shocked him considering that his supervisor earlier advised that he would just be transferred to another department. Under this scenario, petitioners decision not to report for work anymore was perfectly understandable, as the sensible reaction of an employee fired by no less than the company president. It was indeed a classic case of dismissal without just cause and due process, which is proscribed under our labor laws. As to the affidavits submitted by the respondents, these are at best selfserving having been executed by employees beholden to their employer and which evidence by themselves did not refute petitioners main cause of action -- the fact of his summary dismissal on February 19, 2002. Respondents effort to present the case as one of an erring employee about to be investigated for poor sales performance must likewise fail. The NLRC duly noted the discriminatory treatment accorded to petitioner when it declared that there is no evidence at all that other sales personnel who failed to meet the prescribed sales quota were similarly reprimanded or penalized. Incidentally, the question may be asked if

petitioner whose performance was assessed by management as poor yet admittedly ranked second to the top sales agent of the company, why was it that no evidence was submitted by respondents to show the comparative sales performance of all sales agents? Given the strained working relationship with Garcia, or at least a perception of such gap on the part of petitioner, the latter could not have been properly informed of the actual ground for his dismissal. But more importantly, respondents terminated petitioner first and only belatedly sent him written notices of the charge against him. Fairness requires that dismissal, being the ultimate penalty that can be meted out to an employee, must have a clear basis. Any ambiguity in the ground for the termination of an employee should be interpreted against the employer, who ordained such ground in the first place. [14] Resignation is defined asthe voluntary act of employees who are compelled by personal reasons to disassociate themselves from their employment. It must be done with the intention of relinquishing an office, accompanied by the act of abandonment.[15]In this case, the evidence on record suggests that petitioner did not resign; he was orally dismissed by Sy. It is this lack of clear, valid and legal cause, not to mention due process, that made his dismissal illegal, warranting reinstatement and the award of backwages.[16] Moreover, the filing of a complaint for illegal dismissal just three weeks later is difficult to reconcile with voluntary resignation. Had petitioner intended to voluntarily relinquish his employment after being unceremoniously dismissed by no less than the company president, he would not have sought redress from the NLRC and vigorously pursued this case against the respondents.[17] When there is no showing of a clear, valid and legal cause for the termination of employment, the law considers it a case of illegal dismissal. Furthermore, Article 4 of the Labor Code expresses the basic principle that all doubts in the interpretation and implementation of the Labor Code should be interpreted in favor of the workingman. This principle has been extended by jurisprudence to cover doubts in the evidence presented by the employer and the employee.[18] Thus we have held that if the evidence presented by the employer and the employee are in equipoise, the scales of justice must be tilted in favor of the latter.[19]Accordingly, the NLRCs finding of illegal dismissal must be upheld.

However, the award of back wages and separation pay in lieu of reinstatement should be modified. Under the doctrine of strained relations, the payment of separation pay has been considered an acceptable alternative to reinstatement when the latter option is no longer desirable or viable. [20] Under the facts established, petitioner is entitled to the payment of full back wages, inclusive of allowances, and other benefits or their monetary equivalent, computed from the date of his dismissal on February 19, 2002 up to the finality of this decision, and separation pay in lieu of reinstatement equivalent to one month salary for every year of service, computed from the time of his engagement by respondents on March 21, 1999 up to the finality of this decision.[21] WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated April 21, 2006 and Resolution dated September 7, 2006 of the Court of Appeals in CA-G.R. SP No. 88061 are SET ASIDE. The Decision dated July 29, 2004 of the National Labor Relations Commission in NLRC NCR CA No. 035557-03 is REINSTATED and AFFIRMED WITH MODIFICATIONS in that in addition to the unpaid commission of P16,581.00, respondent Centro Ceramica Corporation is hereby ordered to pay petitioner Jhorizaldy Uy his full back wages, inclusive of allowances, and other benefits or their monetary equivalent, computed from the date of his dismissal on February 19, 2002 up to the finality of this decision, and separation pay in lieu of reinstatement equivalent to one monthsalary for every year of service, computed from the time of his engagement by respondent corporation on March 21, 1999 up to the finality of this decision. No pronouncement as to costs.

MARITIME INC., Petitioner,

FACTORS

G.R. 151993 Present:

No.

- versus-

BIENVENIDO R. HINDANG, Respondent.

VELASCO, JR., J., Chairpers on, PERALTA, ABAD, MENDOZA, and PERLASBERNABE, JJ . Promulgated:

October 19, 2011 x----------------------------------------------------------------------------------------x

DECISION

PERALTA, J.: Assailed in this petition for review on certiorari are the Decision[1] dated November 28, 2001 and the Resolution[2] dated January 29, 2002, of the Court of Appeals (CA) in CA-G.R. SP No. 57478. The antecedent facts are as follows: On June 10, 1994, petitioner Maritime Factors, Inc., a domestic manning agency, for and in behalf of its foreign principal Bahrain Marine Contracting/Panama, engaged the services of Danilo R. Hindang (Danilo) to work as GP/Deckhand on board the M/T Reya, a Panamanian -registered ocean-going

vessel. Danilo's contract of employment was for a period of 12 months with a basic monthly salary of US$230.00.[3] On July 27, 1994, while within the territorial jurisdiction of the Kingdom of Saudi Arabia and on board the vessel, Chief Mate Marcial Lauron, Jr., AB Jaime Aguinaldo and Oiler Allan P. Sarabia forced open Danilo's cabin door by taking out the screws on the door lock with a screw driver. They found Danilo's body inside the locker (wardrobe) of his cabin.[4] Danilo was found hanging by a strap on his neck in a kneeling position.[5] Upon arriving at West Pier, Ras Tanurah, they turned over Danilo's body to the Saudi police authorities, who then brought the body to Dr. Ossman Abdel Hameed, the Medical Examiner of the Eastern Region, Kingdom of Saudi Arabia. Dr. Hameed conducted an autopsy on Danilo's remains and concluded that Danilo committed suicide by hanging himself.[6] Danilo's remains were repatriated to the Philippines where an autopsy was requested by Danilo's family. The autopsy was conducted by Dr. Maximo L. Reyes, a Medico-Legal Officer of the National Bureau of Investigation (NBI) and concluded that the cause of Danilo's death was Asphyxia by Strangulation, Ligature.[7] Dr. Reyes subsequently issued a Certification[8] dated December 27, 1994 clarifying that Danilo died of Asphyxia by strangulation which meant that somebody caused his death based on his autopsy findings. On August 24, 1994, respondent Bienvenido R. Hindang, brother of the deceased seaman Danilo, filed for death compensation benefits pursuant to the POEA Standard Employment Contract Governing the Employment of All Filipino Seamen on Board Ocean-Going Vessels. The case was docketed as POEA Case No. 94-08-2599.[9] Since efforts to settle the case amicably proved futile, the Labor Arbiter (LA) directed the parties to submit their respective position papers. Petitioner filed its Position Paper claiming that based on Dr. Hameed's medical jurisprudence report, Danilo committed suicide by hanging himself; thus, his death is not compensable. Petitioner submitted a photocopy of the fax transmission of the medical jurisprudence report of Dr. Hameed where the latter stated that the cause of Danilo's death was suicide by hanging himself. Petitioner also submitted the written report dated September 21, 1994 of Danilo's fellow crew

members stating that Danilo's cabin door was locked, thus, they forced open it and found Danilo inside the locker room hanging by his neck in a kneeling position. In his Position Paper, respondent contended that the NBI autopsy report categorically declared that the cause of Danilo's death was Asphyxia by strangulation, ligature; that the alleged Dr. Hameed's medical report cannot be given legal effect, since the report was a mere photocopy of a fax transmission from petitioner's foreign principal, hence, the document was unreliable as to its due execution and genuineness. Respondent lifted portions in Dr. Hameed's medical report to rebut the finding that Danilo committed suicide. On November 29, 1996, the LA rendered its decision,[10] the decretal portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered ordering respondent Maritime Factors, Inc. and/or its foreign employer Bahrain Marine Contracting/PANAMA to jointly and severally pay Danilo Hindang's death benefits through his next of kin Bienvenido R. Hindang, pursuant to the POEA Standard Contract for Seafarers, in the amount of US$50,000.00 or at its Philippine Currency equivalent at the exchange rate prevailing during the time of payment.[11] The LA found that Danilo did not commit suicide, thus, the claim for his death benefit must prosper. It found, among others, that the NBI autopsy report concluding that Danilo died of Asphyxia by strangulation should be given credence as against petitioner's evidence which consisted of a mere photocopy of the fax transmission of the medical jurisprudence report of Dr. Hameed; that the medical report was unreliable, since its genuineness and due execution could not be verified especially so that the report was purportedly prepared by a foreign government officer; and that under the POEA Standard Employment Contract for Filipino Seamen, the burden of proof to prove non-compensability of the death of the seaman is on the employer which petitioner failed to discharge. The LA also found that there was no proof submitted that Danilo had been observed to be losing his mind as to kill himself.

Petitioner filed its Memorandum of Appeal[12] with the National Labor Relations Commission (NLRC).

On August 18, 1998, the NLRC rendered a Resolution[13] which affirmed in toto the LA decision. Petitioner's motion for reconsideration Resolution[14] dated December 8, 1999. was also denied in a

Petitioner filed with the CA a petition for certiorari under Rule 65 assailing the NLRC resolutions for having been issued with grave abuse of discretion. Respondent filed his Comment, while the petitioner its Rejoinder thereto.

In a Decision dated November 28, 2001, the CA denied the petition and affirmed the NLRC resolutions. The CA found that respondent through the NBI autopsy report and the certification issued by the medico-legal officer, Dr. Reyes, was able to prove that Danilo died of Asphyxia by strangulation, thus, the burden was shifted to petitioner to prove that Danilo committed suicide. However, petitioner failed to do so since its evidence consisted merely of a photocopy of the fax transmission of the medical report of Dr. Hameed; and such report cannot be verified as to its genuineness and due execution in our jurisdiction. Therefore, as between the independent report of the NBI and the mere photocopy of the alleged medical report of Dr. Hameed, the former therefore prevailed and should be given full credence. The CA did not also give much credence to the written report dated September 21, 1994 of Danilo's fellow crew members since the circumstances stated in the report did not at all prove that Danilo committed suicide. The CA brushed aside petitioner's claim that respondent failed to prove that he is related to Danilo. It found that petitioner had admitted in its Answer to the Complaint that respondent is a brother of Danilo; and that the issue that respondent is not related to Danilo was only raised for the first time in the CA. Hence, this petition wherein petitioner raises the following assignment of errors, to wit:

THE HONORABLE COURT OF APPEALS GRIEVOUSLY [ERRED] WHEN IT TOTALLY DISREGARDED THE MEDICAL JURISPRUDENCE REPORT OF THE SAUDI ARABIAN DOCTOR WHO CONDUCTED AN ACTUAL EXAMINATION OF THE CADAVER AND OCULAR INSPECTION OF THE PLACE WHERE THE DECEASED WAS FOUND ON THE LAME [EXCUSE] THAT THE SAME WERE MERE PHOTOCOPIES OF THE FAX TRANSMISSIONS FROM THE PETITIONER'S FOREIGN PRINCIPAL. THE HONORABLE COURT OF APPEALS ERRED WHEN IT MADE A FACTUAL CONCLUSION THAT IS NOT BORNE OUT BY THE RECORD BUT GROUNDED ENTIRELY ON SPECULATIONS, SURMISES OR CONJECTURE. THE HONORABLE COURT OF APPEALS ERRED WHEN IT RULED THAT THE RESPONDENT IS THE BROTHER OF THE DECEASED DESPITE THE UTTER LACK OF BASIS TO SUBSTANTIATE THE RELATIONSHIP.[15]

Petitioner claims that Danilo's death is not compensable, since he committed suicide; that the photocopy of the facsimile transmission of the medical report of Dr. Hameed, which supported petitioner's claim, should have been admitted notwithstanding that the same was a mere photocopy since the original document is in a foreign country; and that administrative and quasi-judicial bodies like the NLRC are not bound by technical rules of procedure in the adjudication of cases. Petitioner argues that the written report dated September 21, 1994, signed by Danilo's fellow crew members, should have also been considered in the resolution of this case. The main issue for resolution is whether Danilo committed suicide during the term of his employment contract which would exempt petitioner from paying Danilo's death compensation benefits to his beneficiaries. In a petition for review on certiorari, our jurisdiction is limited to reviewing errors of law in the absence of any showing that thefactual findings complained of

are devoid of support in the records or are glaringly erroneous.[16] We are not a trier of facts, and this applies with greater force in labor cases.[17] Findings of fact of administrative agencies and quasi-judicial bodies, which have acquired expertise because their jurisdiction is confined to specific matters, are generally accorded not only great respect but even finality.[18] They are binding upon this Court unless there is a showing of grave abuse of discretion or where it is clearly shown that they were arrived at arbitrarily or in utter disregard of the evidence on record.[19] We find these exceptions in this case. The LA, the NLRC and the CA found that Danilo died of Asphyxia by strangulation based on the NBI post-mortem findings and certification issued by the medico-legal officer, Dr. Reyes. These three tribunals did not give credence to the evidence presented by petitioner proving that Danilo committed suicide, which evidence consisted of (1) a photocopy of the fax transmission of the medical report of Dr. Hameed, the Saudi Arabian doctor who immediately conducted an autopsy on Danilos body upon his death; and (2) the written report of three fellow crew members of Danilo. We reverse the ruling. The three tribunals agreed to respondent's claim that the photocopy of a fax transmission of Dr. Hameeds medical report is unverifiable and unreliable; thus, did not give credence to the same. However, we find that respondent is estopped from raising its objection to such photocopy of medical report, since respondent even lifted portions in the report which would allegedly prove his claim of Danilo's death by strangulation. Notably, respondent would refer to portions of the medical report which suit his purpose but raises the reports authenticity and reliability since the conclusion was adverse to him. Respondent cannot now claim that the medical report which was merely a translation of the original report in Arabic cannot be given legal effect, since respondent had referred to the same medical report to argue its case. It is settled that the LA and the NLRC are directed to use every and all reasonable means to ascertain the facts in each case speedily and objectively, without regard to [20] technicalities of law and procedure all in the interest of substantial justice.

Considering the foregoing, we find reversible error committed by the LA, the NLRC and the CA in discrediting Dr. Hameeds medical report for being a mere photocopy of a fax transmission. Again, we stress that proceedings before the NLRC are not covered by the technical rules of evidence and procedure as observed in the regular courts. Technical rules of evidence do not apply if the decision to grant the petition proceeds from an examination of its sufficiency as well as a careful look into the arguments contained in position papers and other documents. [21] We give credence to Dr. Hameeds medical report establishing that Danilo committed suicide by hanging himself. Dr. Hameed conducted the autopsy on Danilo's remains immediately after the latter's death. He saw first-hand the condition of Danilo's body, which upon his examination led him to conclude that Danilo died by hanging himself. His report was comprehensive and more detailed. He, likewise, noted that there were no signs of violence or resistance, or any external injuries except a very slight and artificial injury of nearly 5 cms among the toes of Danilo's right leg.[22] Petitioner also presented as its evidence the written report of Danilos fellow crew members to prove that Danilo's cabin door was locked when he was found hanging in his wardrobe. The report stated that they (Chief Mate Marcial Lauron, Jr., AB Jaime Aguinaldo and Oiler Allan P. Sarabia) forced open the cabin door of Danilo by taking out the screws on the door; that the door was locked since the key was inserted in the keyhole inside the room; that upon opening the door, they found the room empty but when they looked at the locker, they saw Danilo hanging with a strap on his neck in a kneeling position.[23] This written report was not given credence by the CA holding that no one can prevent a determined villain from entering the said room while the door was open when the deceased was inside; thus, after the villain strangled the victim to death, he slipped away, closed and locked the door.[24] We find such finding as speculative. In Dr. Hameeds medical report, as well as Dr. Reyes post mortem examination, both reports did not mention of any showing of signs that there was struggle on the part of Danilo to defend himself from an intruder. Both reports did not report any marks of violence in the other

parts of Danilos body. Thus, Dr. Hameed's medical report, corroborated by the written report of Danilo's fellow crew members that the door was locked from the inside when they found Danilo hanging in his wardrobe, only shows that he committed suicide. Under Part II, Section C, Nos. 1 and 6 of the POEA "Standard Employment Contract Governing the Employment of All Filipino Seamen on Board OceanGoing Vessels,"[25] it is provided that:
1. In case of death of the seaman during the term of this Contract, the employer shall pay his beneficiaries the Philippine Currency equivalent to the amount of U.S.$50,000.00 and an additional amount of U.S.$7,000.00 to each child under the age of twenty-one (21) but not exceeding four children at the exchange rate prevailing during the time of payment.[26] xxxx 6. No compensation shall be payable in respect of any injury, incapacity, disability or death resulting from a willful act on his own life by theseaman, provided, however, that the employer can prove that such injury, incapacity, disability or death is directly attributable to him. [27]

In order to avail of death benefits, the death of the employee should occur during the effectivity of the employment contract. The death of a seaman during the term of employment makes the employer liable to his heirs for death compensation benefits.[28] This rule, however, is not absolute. The employer may be exempt from liability if it can successfully prove that the seaman's death was caused by an injury directly attributable to his deliberate or willful act.[29] Clearly, respondent's entitlement to any death benefit depends on whether petitioner's evidence suffices to prove that Danilo committed suicide, and the burden of proof rests on petitioner.[30] We find that petitioner was able to prove that Danilo's death was attributable to his deliberate act of killing himself by committing suicide.

WHEREFORE, the petition is GRANTED. The Decision dated November 28, 2001 and the Resolution dated January 29, 2002 of the Court of Appeals are hereby REVERSED and SET ASIDE. SO ORDERED.
[G.R. Nos. 156556-57, October 04, 2011] ENRIQUE U. BETOY, PETITIONER, VS. THE BOARD OF DIRECTORS, NATIONAL POWER CORPORATION, RESPONDENT. DECISION
PERALTA, J.: Before this Court is a special civil action for certiorari[1] and supplemental petition formandamus,[2] specifically assailing National Power Board Resolutions No. 2002-124 and No. 2002-125, as well as Sections 11, 34, 38, 48, 52 and 63 of Republic Act (R.A.) No. 9136, otherwise known as the Electric Power Industry Reform Act of 2001(EPIRA). Also assailed is Rule 33 of the Implementing Rules and Regulations (IRR) of the EPIRA. The facts of the case are as follows: On June 8, 2001, the EPIRA was enacted by Congress with the goal of restructuring the electric power industry and privatization of the assets of the National Power Corporation (NPC). Pursuant to Section 48[3] of the EPIRA, a new National Power Board of Directors (NPB) was created. On February 27, 2002, pursuant to Section 77[4] of the EPIRA, the Secretary of the Department of Energy promulgated the IRR. On the other hand, Section 63 of the EPIRA provides for separation benefits to officials and employees who would be affected by the restructuring of the electric power industry and the privatization of the assets of the NPC, to wit: Section 63. Separation Benefits of Officials and Employees of Affected Agencies. - National Government employees displaced or separated from the service as a result of the restructuring of the electricity industry and privatization of NPC assets pursuant to this Act, shall be entitled to either a separation pay and other benefits in accordance with existing laws, rules or regulations or be entitled to avail of the privileges provided under a separation plan which shall be one and onehalf month salary for every year of service in the government: Provided, however, That those who avail of such privileges shall start their government service anew if absorbed by any government-owned successor company. In no case shall there be any diminution of benefits under the separation plan until the full implementation of the restructuring and privatization. Displaced or separated personnel as a result of the privatization, if qualified, shall be given preference in the hiring of the manpower requirements of the privatized companies. x x x[5] Rule 33[6] of the IRR provided for the coverage and the guidelines for the separation benefits to be given to the employees affected. On November 18, 2002, pursuant to Section 63 of the EPIRA and Rule 33 of the IRR, the NPB passed NPB Resolution No. 2002-124[7] which, among others, resolved that all NPC personnel shall be legally terminated

on January 31, 2003 and shall be entitled to separation benefits. On the same day, the NPB passed NPB Resolution No. 2002-125[8] which created a transition team to manage and implement the separation program. As a result of the foregoing NPB Resolutions, petitioner Enrique U. Betoy, together with thousands of his coemployees from the NPC were terminated. Hence, herein petition for certiorari with petitioner praying for the grant of the following reliefs from this Court, to wit: 1. Declaring National Power Board Resolution Nos. 2002-124 and 2002-125 and its Annex "B" Null and Void, the fact [that] it was done with extraordinary haste and in secrecy without the able participation of the Napocor Employees Consolidated Union (NECU) to represent all career civil service employees on issues affecting their rights to due process, equity, security of tenure, social benefits accrued to them, and as well as the disclosure of public transaction provisions of the 1987 Constitution because during its proceeding the National Power Board had acted with grave abuse of discretion and disregarding constitutional and statutory injunctions on removal of public servants and non-diminution of social benefits accrued to separated employees, thus, amounting to excess of jurisdiction; 2. Striking down Section 11, Section 48 and Section 52 of RA 9136 (EPIRA) for being violative of Section 13, Article VII of the 1987 Constitution and, therefore, unconstitutional; 3. Striking Section 34 of RA 9136 (EPIRA) for being exorbitant display of State Power and was not premised on the welfare of the FILIPINO PEOPLE or principle of salus populi est suprema lex; 4. Striking down Section 38 for RA 9136 (EPIRA) for being a prelude toCharter Change without a valid referendum for ratification of the entire voter citizens of the Philippine Republic; 5. Striking down all other provisions of RA 9136 (EPIRA) found repugnant to the 1987 Constitution; 6. Striking down all provisions of the Implementing Rules and Regulations (IRR) of the EPIRA found repugnant to the 1987 Constitution; 7. Striking down Section 63 of RA 9136 (EPIRA) for classifying such provisions in the same vein with Proclamation No. 50 used against MWSS employees and its failure to classify which condition comes first whether the restructuring effecting total reorganization of the electric power industry making NPC financially viable or the privatization of NPC assets where manpower reduction or sweeping/lay-off or termination of career civil service employees follows the disposal of NPC assets. This is a clear case of violation of the EQUAL PROTECTION CLAUSE, therefore, unconstitutional; 8. Striking down Rule 33 of the Implementing Rules [and] Regulations (IRR) for disregarding the constitutional and statutory injunction on arbitrary removal of career civil service employees; and 9. For such other reliefs deemed equitable with justice and fairness to more than EIGHT THOUSAND (8,000) EMPLOYEES of the National Power Corporation (NPC) whose fate lies in the sound disposition of the Honorable Supreme Court.[9] In addition, petitioner also filed a supplemental petition for mandamus praying for his reinstatement. The petition is without merit. Before anything else, this Court shall first tackle whether it was proper for petitioner to directly question the constitutionality of the EPIRA before this Court.

Section 5(1) and (2), Article VIII of the 1987 Constitution provides that: SECTION 5. The Supreme Court shall have the following powers: 1. Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. 2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the rules of court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.[10] Based on the foregoing, this Court's jurisdiction to issue writs of certiorari, prohibition,mandamus, quo warranto, and habeas corpus, while concurrent with that of the Regional Trial Courts and the Court of Appeals, does not give litigants unrestrained freedom of choice of forum from which to seek such relief. [11] The determination of whether the assailed law and its implementing rules and regulations contravene the Constitution is within the jurisdiction of regular courts. The Constitution vests the power of judicial review or the power to declare a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation in the courts, including the Regional Trial Courts.[12] It has long been established that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts, or where exceptional and compelling circumstances justify availment of a remedy within and call for the exercise of our primary jurisdiction. [13] Thus, herein petition should already be dismissed at the outset; however, since similar petitions have already been resolved by this Court tackling the validity of NPB Resolutions No. 2002-124 and No. 2002-125, as well as the constitutionality of certain provisions of the EPIRA, this Court shall disregard the procedural defect. Validity of NPB Resolutions No. 2002-124 and No. 2002-125 The main issue raised by petitioner deals with the validity of NPB Resolutions No. 2002-124 and No. 2002125. In NPC Drivers and Mechanics Association (NPC DAMA) v. National Power Corporation (NPC),[14] this Court had already ruled that NPB Resolutions No. 2002-124 and No. 2002-125 are void and of no legal effect. NPC Drivers involved a special civil action for Injunction seeking to enjoin the implementation of the same assailed NPB Resolutions. Petitioners therein put in issue the fact that the NPB Resolutions were not concluded by a duly constituted Board of Directors since no quorum in accordance with Section 48 of the EPIRA existed. In addition, petitioners therein argued that the assailed NPB Resolutions cannot be given legal effect as it failed to comply with Section 47 of the EPIRA which required the endorsement of the Joint Congressional Power Commission and the President of the Philippines. Ruling in favor of petitioners therein, this Court ruled that NPB Resolutions No. 2002-124 and No. 2002-125 are void and of no legal effect for failure to comply with Section 48 of the EPIRA, to wit: We agree with petitioners. In enumerating under Section 48 those who shall compose the National Power Board of Directors, the legislature has vested upon these persons the power to exercise their judgment and discretion in running the affairs of the NPC. Discretion may be defined as "the act or the liberty to decide according to the principles of justice and one's ideas of what is right and proper under the circumstances, without willfulness or favor. Discretion, when applied to public functionaries, means a power or right conferred upon them by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. It is to be presumed

that in naming the respective department heads as members of the board of directors, the legislature chose these secretaries of the various executive departments on the basis of their personal qualifications and acumen which made them eligible to occupy their present positions as department heads. Thus, the department secretaries cannot delegate their duties as members of the NPB, much less their power to vote and approve board resolutions, because it is their personal judgment that must be exercised in the fulfilment of such responsibility. xxxx In the case at bar, it is not difficult to comprehend that in approving NPB Resolutions No. 2002-124 and No. 2002-125, it is the representatives of the secretaries of the different executive departments and not the secretaries themselves who exercised judgment in passing the assailed Resolution, as shown by the fact that it is the signatures of the respective representatives that are affixed to the questioned Resolutions. This, to our mind, violates the duty imposed upon the specifically enumerated department heads to employ their own sound discretion in exercising the corporate powers of the NPC. Evidently, the votes cast by these mere representatives in favor of the adoption of the said Resolutions must not be considered in determining whether or not the necessary number of votes was garnered in order that the assailed Resolutions may be validly enacted. Hence, there being only three valid votes cast out of the nine board members, namely those of DOE Secretary Vincent S. Perez, Jr.; Department of Budget and Management Secretary Emilia T. Boncodin; and NPC OIC-President Rolando S. Quilala, NPB Resolutions No. 2002-124 and No. 2002125 are void and are of no legal effect.[15] However, a supervening event occurred in NPC Drivers when it was brought to this Court's attention that NPB Resolution No. 2007-55 was promulgated on September 14, 2007 confirming and adopting the principles and guidelines enunciated in NPB Resolutions No. 2002-124 and No. 2002-125. On December 2, 2009, this Court promulgated a Resolution[16] clarifying the amount due the individual employees of NPC in view of NPB Resolution No. 2007-55. In said Resolution, this Court clarified the exact date of the legal termination of each class of NPC employees, thus: From all these, it is clear that our ruling, pursuant to NPB Resolution No. 2002-124, covers all employees of the NPC and not only the 16 employees as contended by the NPC. However, as regards their right to reinstatement, or separation pay in lieu of reinstatement, pursuant to a validly approved Separation Program, plus backwages, wage adjustments, and other benefits, the same shall be computed from the date of legal termination as stated in NPC Circular No. 2003-09, to wit: a) The legal termination of key officials, i.e., the Corporate Secretary, Vice-Presidents and Senior VicePresidents who were appointed under NP Board Resolution No. 2003-12, shall be at the close of office hours ofJanuary 31, 2003. b) The legal termination of personnel who availed of the early leavers' scheme shall be on the last day of service in NPC but not beyond January 15, 2003. c) The legal termination of personnel who were no longer employed in NPC after June 26, 2001 shall be the date of actual separationin NPC. d) For all other NPC personnel, their legal termination shall be at the close of office hours/shift schedule of February 28, 2003.[17] As to the validity of NPB Resolution No. 2007-55, this Court ruled that the same will have a prospective effect, to wit: What then is the effect of the approval of NPB Resolution No. 2007-55 on 14 September 2007? The approval of NPB Resolution No. 2007-55, supposedly by a majority of the National Power Board as designated by law,

that adopted, confirmed and approved the contents of NPB Resolutions No. 2002-124 and No. 2002-125 will have a prospective effect, not a retroactive effect. The approval of NPB Resolution No. 2007-55 cannot ratify and validate NPB Resolutions No. 2002-124 and No. 2002-125 as to make the termination of the services of all NPC personnel/employees on 31 January 2003 valid, because said resolutions were void. The approval of NPB Resolution No. 2007-55 on 14 September 2007 means that the services of all NPC employees have been legally terminated on this date. All separation pay and other benefits to be received by said employees will be deemed cut on this date. The computation thereof shall, therefore, be from the date of their illegal termination pursuant to NPB Resolutions No. 2002-124 and No. 2002-125 as clarified by NPB Resolution No. 2003-11 and NPC Resolution No. 2003-09 up to 14 September 2007. Although the validity of NPB Resolution No. 2007-55 has not yet been passed upon by the Court, same has to be given effect because NPB Resolution No. 2007-55 enjoys the presumption of regularity of official acts. The presumption of regularity of official acts may be rebutted by affirmative evidence of irregularity or failure to perform a duty. Thus, until and unless there is clear and convincing evidence that rebuts this presumption, we have no option but to rule that said resolution is valid and effective as of 14 September 2007.[18] Based on the foregoing, this Court concluded that the computation of the amounts due the employees who were terminated and/or separated as a result of, or pursuant to, the nullified NPB Board Resolutions No. 2002-124 and No. 2002-125 shall be from their date of illegal termination up to September 14, 2007 when NPB Resolution No. 2007-55 was issued. Thus, the resolution of the validity of NPB Board Resolutions No. 2002-124 and No. 2002-125 is, therefore, moot and academic in view of the Court's pronouncements inNPC Drivers. Anent the question of the constitutionality of Section 63 of RA 9136, as well as Rule 33 of the IRR, this Court finds that the same is without merit. A reorganization involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. [19] It could result in the loss of one's position through removal or abolition of an office. However, for a reorganization for the purpose of economy or to make the bureaucracy more efficient to be valid, it must pass the test of good faith; otherwise, it is void ab initio.[20] It is undisputed that NPC was in financial distress and the solution found by Congress was to pursue a policy towards its privatization. The privatization of NPC necessarily demanded the restructuring of its operations. To carry out the purpose, there was a need to terminate employees and re-hire some depending on the manpower requirements of the privatized companies. The privatization and restructuring of the NPC was, therefore, done in good faith as its primary purpose was for economy and to make the bureaucracy more efficient. In Freedom from Debt Coalition v. Energy Regulatory Commission,[21] this Court discussed why there was a need for a shift towards the privatization and restructuring of the electric power industry, to wit: One of the landmark pieces of legislation enacted by Congress in recent years is the EPIRA. It established a new policy, legal structure and regulatory framework for the electric power industry. The new thrust is to tap private capital for the expansion and improvement of the industry as the large government debt and the highly capital-intensive character of the industry itself have long been acknowledged as the critical constraints to the program. To attract private investment, largely foreign, the jaded structure of the industry had to be addressed. While the generation and transmission sectors were centralized and monopolistic, the distribution side was fragmented with over 130 utilities, mostly small and uneconomic. The pervasive flaws have caused a low utilization of existing generation capacity; extremely high and uncompetitive power rates; poor quality of service to consumers; dismal to forgettable performance of the government power sector; high system losses; and an inability to develop a clear

strategy for overcoming these shortcomings. Thus, the EPIRA provides a framework for the restructuring of the industry, including the privatization of the assets of the National Power Corporation (NPC), the transition to a competitive structure, and the delineation of the roles of various government agencies and the private entities. The law ordains the division of the industry into four (4) distinct sectors, namely: generation, transmission, distribution and supply. Corollarily, the NPC generating plants have to be privatized and its transmission business spun off and privatized thereafter.[22] Petitioner argues that bad faith is clearly manifested as the reorganization has an eye to replace current favorite less competent appointees. In addition, petitioner contends that qualifications and behavioral aspect were being set aside.[23] Section 2 of R.A. No. 6656[24] cites certain circumstances showing bad faith in the removal of employees as a result of any reorganization, thus: Sec. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and hearing. A valid cause for removal exist when, pursuant to a bona fide reorganization, a position has been abolished or rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the service, or other lawful causes allowed by the Civil Service Law. The existence of any or some of the following circumstances may be considered as evidence of bad faith in the removals made as a result of the reorganization, giving rise to a claim for reinstatement or reappointment by an aggrieved party: a) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; b) Where an office is abolished and another performing substantially the same functions is created; c) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; d) Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices; and e) Where the removal violates the order of separation provided in Section 3 hereof. The Solicitor General, however, argues that petitioner has not shown any circumstance to prove that the restructuring of NPC was done in bad faith. We agree. Petitioner's allegation that the reorganization was merely undertaken to accommodate new appointees is at most speculative and bereft of any evidence on record. It is settled that bad faith must be duly proved and not merely presumed. It must be proved by clear and convincing evidence,[25] which is absent in the case at bar. In addition, petitioner has no legal or vested right to be reinstated as Section 63 of the EPIRA as well as Section 5, Rule 33 of the IRR clearly state that the displaced or separated personnel as a result of the privatization, if qualified, shall be given preference in the hiring of the manpower requirements of the privatized companies. Clearly, the law only speaks of preference and by no stretch of the imagination can the same amount to a legal right to the position. Undoubtedly, not all the terminated employees will be rehired by the selection committee as the manpower requirement of the privatized companies will be different. As correctly observed by the Solicitor General, the selection of employees for purposes of re-hiring them necessarily entails the exercise of discretion or judgment.[26] Such being the case, petitioner, cannot, by way of mandamus, compel the selection committee to include him in the re-hired employees, more so, since there is no evidence showing that said committee acted with grave abuse of discretion or that the re-hired employees were merely accommodated and not qualified. Validity of Sections 11, 48, and 52 of RA 9136

Petitioner argues that Sections 11,[27] 48,[28] and 52[29] of the EPIRA are unconstitutional for violating Section 13, Article VII of the 1987 Constitution. Section 13, Article VII of the 1987 Constitution provides: Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. x x x x.[30] In Civil Liberties Union v. Executive Secretary,[31] this Court explained that the prohibition contained in Section 13, Article VII of the 1987 Constitution does not apply to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required by the primary function of said official's office, to wit: The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-officiocapacity as provided by law and as required by the primary functions of said officials' office. The reason is that these posts do not comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials. To characterize these posts otherwise would lead to absurd consequences, among which are: The President of the Philippines cannot chair the National Security Council reorganized under Executive Order No. 115 (December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of National Defence, Justice, Labor and Employment and Local Government sit in this Council, which would then have no reason to exist for lack of a chairperson and members. The respective undersecretaries and assistant secretaries, would also be prohibited. xxxx The term "primary" used to describe "functions" refers to the order of importance and thus means chief or principal function. The term is not restricted to the singular but may refer to the plural. The additional duties must not only be closely related to, but must be required by the official's primary functions. Examples of designations to positions by virtue of one's primary functions are the Secretaries of Finance and Budget, sitting as members of the Monetary Board, and the Secretary of Transportation and Communications, acting as Chairman of the Maritime Industry Authority and the Civil Aeronautics Board.[32] The designation of the members of the Cabinet to form the NPB does not violate the prohibition contained in our Constitution as the privatization and restructuring of the electric power industry involves the close coordination and policy determination of various government agencies. Section 2 of the EPIRA clearly shows that the policy toward privatization would involve financial, budgetary and environmental concerns as well as coordination with local government units, to wit: SECTION 2. Declaration of Policy. - It is hereby declared the policy of the State: (a) To ensure and accelerate the total electrification of the country; (b) To ensure the quality, reliability, security and affordability of the supply of electric power; (c) To ensure transparent and reasonable prices of electricity in a regime of free and fair competition and full public accountability to achieve greater operational and economic efficiency and enhance the

competitiveness of Philippine products in the global market; (d) To enhance the inflow of private capital and broaden the ownership base of the power generation, transmission and distribution sectors; (e) To ensure fair and non-discriminatory treatment of public and private sector entities in the process of restructuring the electric power industry; (f) To protect the public interest as it is affected by the rates and services of electric utilities and other providers of electric power; (g) To assure socially and environmentally compatible energy sources and infrastructure; (h) To promote the utilization of indigenous and new and renewable energy resources in power generation in order to reduce dependence on imported energy; (i) To provide for an orderly and transparent privatization of the assets and liabilities of the National Power Corporation (NPC); (j) To establish a strong and purely independent regulatory body and system to ensure consumer protection and enhance the competitive operation of the electricity market; and (k) To encourage the efficient use of energy and other modalities of demand side management. As can be gleaned from the foregoing enumeration, the restructuring of the electric power industry inherently involves the participation of various government agencies. In Civil Liberties, this Court explained that mandating additional duties and functions to Cabinet members which are not inconsistent with those already prescribed by their offices or appointments by virtue of their special knowledge, expertise and skill in their respective executive offices, is a practice long-recognized in many jurisdictions. It is a practice justified by the demands of efficiency, policy direction, continuity and coordination among the different offices in the Executive Branch in the discharge of its multifarious tasks of executing and implementing laws affecting national interest and general welfare and delivering basic services to the people.[33] The production and supply of energy is undoubtedly one of national interest and is a basic commodity expected by the people. This Court, therefore, finds the designation of the respective members of the Cabinet, as ex-officio members of the NPB, valid. This Court is not unmindful, however, that Section 48 of the EPIRA is not categorical in proclaiming that the concerned Cabinet secretaries compose the NPB Board only in anex-officio capacity. It is only in Section 52 creating the Power Sector Assets and Liabilities Management Corporation (PSALM) that they are so designated in an ex-officio capacity. Sections 4 and 6 of the EPIRA provides: Section 4. TRANSCO Board of Directors. All the powers of the TRANSCO shall be vested in and exercised by a Board of Directors. The Board shall be composed of a Chairman and six (6) members. The Secretary of the DOF shall be the ex-officio Chairman of the Board. The other members of the TRANSCO Board shall include the Secretary of the DOE, the Secretary of the DENR, the President of TRANSCO, and three (3) members to be appointed by the President of the Philippines, each representing Luzon, Visayas and Mindanao, one of whom shall be the President of PSALM. x x x x. Section 6. PSALM Board of Directors. PSALM shall be administered, and its powers and functions exercised, by a Board of Directors which shall be composed of the Secretary of the DOF as the Chairman, and the Secretary of the DOE, the Secretary of the DBM, the Director-General of the NEDA, the Secretary of the DOJ, the Secretary of the DTI and the President of the PSALM as ex-officiomembers thereof. Nonetheless, this Court agrees with the contention of the Solicitor General that the constitutional prohibition was not violated, considering that the concerned Cabinet secretaries were merely imposed additional duties and their posts in the NPB do not constitute "any other office" within the contemplation of the constitutional

prohibition. The delegation of the said official to the respective Board of Directors were designation by Congress of additional functions and duties to the officials concerned,i.e., they were designated as members of the Board of Directors. Designation connotes an imposition of additional duties, usually by law, upon a person already in the public service by virtue of an earlier appointment.[34] Designation does not entail payment of additional benefits or grant upon the person so designated the right to claim the salary attached to the position. Without an appointment, a designation does not entitle the officer to receive the salary of the position. The legal basis of an employee's right to claim the salary attached thereto is a duly issued and approved appointment to the position, and not a mere designation.[35] Hence, Congress specifically intended that the position of member of the Board of NPB shall be ex-officio or automatically attached to the respective offices of the memberscomposing the board. It is clear from the wordings of the law that it was the intention of Congress that the subject posts will be adjunct to the respective offices of the official designated to such posts. The foregoing discussion, notwithstanding, the concerned officials should not receive any additional compensation pursuant to their designation as ruled in Civil Liberties, thus: The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actually and in legal contemplation performing the primary function of his principal office in defining policy in monetary and banking matters, which come under the jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be in the form of a per diem or an honorarium or an allowance, or some other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the Constitution. In relation thereto, Section 14 of the EPIRA provides: SEC. 14. Board Per Diems and Allowances. - The members of the Board shall receive per diem for each regular or special meeting of the board actually attended by them and, upon approval of the Secretary of the Department of Finance, such other allowances as the Board may prescribe. Section 14 relates to Section 11 which sets the composition of the TRANSCO Board naming the Secretary of the Department of Finance as the ex officio Chairman of the Board. The other members of the TRANSCO Board include the Secretary of the Department of Energy and the Secretary of the Department of Environment and Natural Resources. However, considering the constitutional prohibition, it is clear that such emoluments or additional compensation to be received by the members of the NPB do not apply and should not be received by those covered by the constitutional prohibition, i.e., the Cabinet secretaries. It is to be noted that three of the members of the NPB are to be appointed by the President, who would be representing the interests of those in Luzon, Visayas, and Mindanao, who may be entitled to such honorarium or allowance if they do not fall within the constitutional prohibition. Hence, the said cabinet officials cannot receive any form of additional compensation by way of per diems and allowances. Moreover, any amount received by them in their capacity as members of the Board of Directors should be reimbursed to the government, since they are prohibited from collecting additional compensation by the Constitution. These interpretations are consistent with the fundamental rule of statutory construction that a statute is to be read in a manner that would breathe life into it, rather than defeat it, [36] and is supported by the criteria in cases of this nature that all reasonable doubts should be resolved in favor of the constitutionality of a statute.[37]

Constitutionality of Section 34[38] of the EPIRA The Constitutionality of Section 34 of the EPIRA has already been passed upon by this Court in Gerochi v. Department of Energy,[39] to wit: Finally, every law has in its favor the presumption of constitutionality, and to justify its nullification, there must be a clear and unequivocal breach of the Constitution and not one that is doubtful, speculative, or argumentative. Indubitably, petitioners failed to overcome this presumption in favor of the EPIRA. We find no clear violation of the Constitution which would warrant a pronouncement that Sec. 34 of the EPIRA and Rule 18 of its IRR are unconstitutional and void.[40] In Gerochi, this Court ruled that the Universal Charge is not a tax but an exaction in the exercise of the State's police power. The Universal Charge is imposed to ensure the viability of the country's electric power industry. Petitioner argues that the imposition of a universal charge to address the stranded debts and contract made by the government through the NCC-IPP contracts or Power Utility-IPP contracts or simply the bilateral agreements or contracts is an added burden to the electricity-consuming public on their monthly power bills. It would mean that the electricity-consuming public will suffer in carrying this burden for the errors committed by those in power who runs the affairs of the State. This is an exorbitant display of State Power at the expense of its people.[41] It is basic that the determination of whether or not a tax is excessive oppressive or confiscatory is an issue which essentially involves a question of fact and, thus, this Court is precluded from reviewing the same. Validity of Section 38[42] of the EPIRA Petitioner argues that the abolishment of the ERB and its replacement of a very powerful quasi-judicial body named the Energy Regulatory Commission (ERC), pursuant to Section 38 up to Section 43 of the EPIRA or RA 9136, which is tasked to dictate the day-to-day affairs of the entire electric power industry, seems a prelude to Charter Change. Petitioner submits that under the 1987 Constitution, there are only three constitutionally-recognized Commissions, they are: the Civil Service Commission (CSC), the Commission on Audit (COA) and the Commission on Elections (COMELEC).[43] Petitioner's argument that the creation of the ERC seems to be a prelude to charter change is flimsy and finds no support in law. This Court cannot subscribe to petitioner's thesis that "in order for the newlyenacted RA 9136 or EPIRA to become a valid law, we should have to call first a referendum to amend or totally change the People's Charter."[44] In any case, the constitutionality of the abolition of the ERB and the creation of the ERC has already been settled in Kapisanan ng mga Kawani ng Energy Regulatory Board v. Commissioner Fe Barin,[45] to wit: All laws enjoy the presumption of constitutionality. To justify the nullification of a law, there must be a clear and unequivocal breach of the Constitution. KERB failed to show any breach of the Constitution. A public office is created by the Constitution or by law or by an officer or tribunal to which the power to create the office has been delegated by the legislature. The power to create an office carries with it the power to abolish. President Corazon C. Aquino, then exercising her legislative powers, created the ERB by issuing Executive Order No. 172 on 8 May 1987. The question of whether a law abolishes an office is a question of legislative intent. There should not be any controversy if there is an explicit declaration of abolition in the law itself. Section 38 of RA 9136 explicitly abolished the ERB. x x x[46]

Moreover, in Kapisanan, this Court ruled that because of the expansion of the ERC's functions and concerns, there was a valid abolition of the ERB.[47] Validity of Section 63[48] Contrary to petitioner's argument, Section 63 of the EPIRA and Section 33 of the IRR of the EPIRA did not impair the vested rights of NPC personnel to claim benefits under existing laws. Neither does the EPIRA cut short the years of service of the employees concerned. If an employee availed of the separation pay and other benefits in accordance with existing laws or the superior separation pay under the NPC restructuring plan, it is but logical that those who availed of such privilege will start their government service anew if they will later be employed by any government-owned successor company or government instrumentality. It is to be noted that this Court ruled in the case of Herrera v. National Power Corporation, [49] that Section 63 of the EPIRA precluded the receipt by the terminated employee of both separation and retirement benefits under the Government Service Insurance System (GSIS) organic law, or Commonwealth Act (C.A.) No. 186. [50] However, it must be clarified that this Court's pronouncements in Herrera that separated and retired employees of the NPC "are not entitled to receive retirement benefits under C.A. No. 186," referred only to the gratuity benefits granted by R.A. No. 1616, [51] which was to be paid by NPC as the last employer. It did not proscribe the payment of retirement benefits to qualified retirees under R.A. No. 660,[52] Presidential Decree (P.D.) No. 1146, [53] R.A. No. 8291, [54] and other GSIS and social security laws. The factual and procedural antecedents of Herrera reveal that it arose from a case between NPC and several of its separated employees who were asking additional benefits from NPC under R.A. No. 1616 after receiving from the former separation benefits under Section 63 of R.A. No. 9136. Unable to resolve the issue with its former employees amicably, NPC filed a petition for declaratory relief, docketed as Civil Case SCA No. Q-03-50681, [55] before the Regional Trial Court of Quezon City, raising the issue of whether or not the employees of NPC are entitled to receive retirement benefits under R.A. No. 1616 over and above the separation benefits granted by R.A. No. 9136. [56] Under R.A. No. 1616, a gratuity benefit is given to qualified retiring members of the GSIS, which is payable by the last employer. In addition to said gratuity benefits, the qualified employee shall also be entitled to a refund of retirement premiums paid, consisting of personal contributions of the employee plus interest, and government share without interest, payable by the GSIS. It effectively amended Section 12 (c) of C.A. No. 186, as follows: (c) Retirement is likewise allowed to any official or employee, appointive or elective, regardless of age and employment status, who has rendered a total of at least twenty years of service, the last three years of which are continuous. The benefit shall, in addition to the return of his personal contributions with interest compounded monthly and the payment of the corresponding employer's premiums described in subsection (a) of Section five hereof, without interest, be only a gratuity equivalent to one month's salary for every year of the first twenty years of service, plus one and one-half months' salary for every year of service over twenty but below thirty years and two months' salary for every year of service over thirty years in case of employees based on the highest rate received and in case of elected officials on the rates of pay as provided by law. This gratuity is payable on the rates of pay as provided by law. This gratuity is payable by the employer or officer concerned which is hereby authorized to provide the necessary appropriation or pay the same from any unexpended items of appropriations or savings in its appropriations. Officials and employees retired under this Act shall

be entitled to the commutation of the unused vacation and sick leave, based on the highest rate received, which they may have to their credit at the time of retirement. x x x [57] (Emphasis supplied.) After trial, the RTC rendered a Decision ruling against the NPC employees, the decretal portion of which reads: WHEREFORE, premises considered, Republic Act No. 9136 DID NOT SPECIFICALLY AUTHORIZE the National Power Corporation to grant retirement benefits under Republic Act No. 1616 in addition to separation pay under Republic Act No. 9136. SO ORDERED.
[58]

Petitioners therein then sought recourse directly to this Court on a pure question of law. In the preparatory statement of the Petition for Review on Certiorari, [59] it is apparent that the case was limited only to the interpretation of Section 63 of R.A. No. 9136, in relation to R.A. No. 1616, on the matter of retirement benefits, to wit: This is a case of first impression limited to the interpretation of Section 63, R.A. 9136 (EPIRA), granting separation pay to terminated NAPOCOR employees, in relation to R.A. 1616, on the matter of retirement benefits. Respondents NAPOCOR and DEPARTMENT OF BUDGET AND MANAGEMENT erroneously contend that the entitlement to the separation pay under R.A. 9136 forfeits the retirement benefit underR.A. 1616. Petitioners most respectfully submit that since R.A. 9136 and R.A. 1616 are not inconsistent with each other and they have distinct noble purposes, entitlement to separation pay will not disqualify the separated employee who is qualified to retire from receiving retirement benefits allowed under another law. x x x[60] However, in the Decision dated December 18, 2009, it was held that petitioners therein were not only entitled to receive retirement benefits under R.A. No. 1616 but also were "not entitled to receive retirement benefits under Commonwealth Act No. 186, as amended," which, in effect, might lead to the conclusion that the declaration encompassed all other benefits granted by C.A. No. 186 to its qualified members. In relation to R.A. No. 1616, Herrera should have affected only the payment of gratuity benefits by NPC, being the last employer, to its separated employees. It was even categorically stated that petitioners therein were "entitled to a refund of their contributions to the retirement fund, and the monetary value of any accumulated vacation and sick leaves," [61] which is clearly congruous to the mandate of R.A. No. 1616. The matter of availment of retirement benefits of qualified employees under any other law to be paid by the GSIS should not and was not covered by the decision. In the first place, it was never an issue. In the case of Santos v. Servier Philippines, Inc., [62] citing Aquino v. National Labor Relations Commission, [63] We declared that the receipt of retirement benefits does not bar the retiree from receiving separation pay. Separation pay is a statutory right designed to provide the employee with the wherewithal during the period that he/she is looking for another employment. On the other hand, retirement benefits are intended to help the employee enjoy the remaining years of his life, lessening the burden of worrying about his financial support, and are a form of reward for his loyalty and service to the employer. A separation pay is given during one'semployable years, while retirement benefits are given during one's unemployable years. Hence, they are not mutually exclusive. [64] Even in the deliberations of Congress during the passage of R.A. No. 9136, it was manifest that it was not the intention of the law to infringe upon the vested rights of NPC personnel to claim benefits under existing laws. To assure the worried and uneasy NPC employees, Congress guaranteed their entitlement to a separation pay to tide them over in the meantime. [65] More importantly, to further allay the fears of the NPC employees, especially those who were nearing retirement age, Congress repeatedly assured them in several public and congressional hearings that on top of their separation benefits, they would still receive their retirement benefits, as long as they would qualify and meet the requirements for its entitlement.

The transcripts of the Public Consultative Meeting on the Power Bill held on February 16, 2001, disclose the following: xxxx THE CHAIRMAN (SEN. J. OSMENA). Well, the other labor representation here is Mr. Anguluan. MR. ANGULUAN: Yes, Your Honor. THE CHAIRMAN (SEN. J. OSMENA). Okay. Will you present your paper? MR. ANGULUAN: We have prepared a paper which we have sent to the honorable members of the Bicam. x x x. THE CHAIRMAN (SEN. J. OSMENA). I don't think anyone is going to deprive you of your rights under the law. You will enjoy all your rights. You will receive retirement benefits, separation pay, and all of the rights that are provided to you by law. What we have objected to in the Senate is retirement benefits higher than what everybody else gets, like 150 percent or subject to the approval of the board which means sky is the limit. So, we have objected to that.But what you are entitled to under the law, you will get under the law and nobody will deprive you of that. [66] A year later, on February 12, 2002, the Joint Congressional Power Commission was held. The transcripts of the hearing bare the following: xxxx THE CHAIRMAN (REP. BADELLES). They will still be subject to the same conditions. Meaning, NPC has the discretion whether to reabsorb or hire back those that avail of the separation benefits. SEN. OSMENA (J). No. But they are not being - - the plants are not being sold, so they are - but what we are giving them is a special concession of retiring early. No, okay. You consider . . . THE CHAIRMAN (REP. BADELLES). We are not speaking of retirement here, we are speaking of their separation benefits . . . SEN. OSMENA (J). Okay, separation benefits. THE CHAIRMAN (REP. BADELLES). Precisely, if they are considered terminated. SEN. OSMENA (J). All right. Separation . . . THE CHAIRMAN (REP. BADELLES). A retirement plan is a different program than separation. SEN. OSMENA (J). Separation benefits, okay. THE CHAIRMAN (REP. BADELLES). All right.
[67]

Thus, it is clear that a separation pay at the time of the reorganization of the NPC and retirement benefits at the appropriate future time are two separate and distinct entitlements. Stated otherwise, a retirement plan is a different program from a separation package. There is a whale of a difference between R.A. No. 1616 and C.A. No. 186, together with its amendatory

laws. They have different legal bases, different sources of fundsand differentintents. In R.A. No. 1616, which is the subject issue in Herrera, the retirees are entitled togratuity benefits to be paid by the last employer and refund of premiums to be paid by the GSIS. On the other hand, retirement benefits under C.A. No. 186, as amended by R.A. No. 8291, are to be paid by the GSIS. Stated otherwise, under R.A. No. 1616, what would be paid by the last employer, NPC, would be gratuity benefits, and GSIS would merely refund the retirement premiums consisting of personal contributions of the employee plus interest, and the employer's share without interest. Under C.A. No. 186, as amended, it is the GSIS who would pay the qualified employees theirretirement benefits. Indeed, with several amendments to C.A. No. 186,[68] the Court finds it necessary to clarify Herrera and categorically declare that it affected only those seeking benefits under R.A. No. 1616. [69] It could not have meant to affect those employees who retired, and who will retire, under the different amendatory laws of C.A. No. 186 like R.A. No. 660, [70] P.D. No. 1146 [71] and R.A. No. 8291. [72] At any rate, entitlement of qualified employees to receive separation pay andretirement benefits is not proscribed by the 1987 Constitution. Section 8 of Article IX (B) of the 1987 Constitution reads: SEC. 8. No elective or appointive public officer or employee shall receive additional, double or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government. Pensions or gratuities shall not be considered as additional, double, or indirect compensation .
[73]

Moreover, retirement benefits under C.A. No. 186 are not even considered as compensation. Section 2 (e) of C.A. No. 186 categorically states that ? Benefits granted by this Act by virtue of such life or retirement insurance shall not be considered as compensation or emolument. [74] Under the GSIS law, the retired employees earned their vested right under their contract of insurance after they religiously paid premiums to GSIS. Under the contract, GSIS is bound to pay the retirement benefits as it received the premiums from the employees and NPC. In Marasigan v. Cruz,
[75]

this Court ratiocinated that:

A retirement law such as C.A. 186 and amendatory laws is in the nature of a contract between the government and its employees. When an employee joins the government service, he has a right to expect that after rendering the required length of service and fulfilled the conditions stated in the laws on retirement, he would be able to enjoy the benefits provided in said laws. He regularly pays the dues prescribed therefore. It would be cruel to deny him the benefits he had been expecting at the end of his service by imposing conditions for his retirement, which are not found in the law. It is believed to be a legal duty as well as a moral obligation on the part of the government to honor its commitments to its employees when as in this case, they have met all the conditions prescribed by law and are therefore entitled to receive their retirement benefits. [76] Thus, where the employee retires and meets the eligibility requirements, he acquires a vested right to benefits that is protected by the due process clause. Retirees enjoy a protected property interest whenever they acquire a right to immediate payment under pre-existing law. Thus, a pensioner acquires a vested right to benefits that have become due as provided under the terms of the public employees' pension statute. No law can deprive such person of his pension rights without due process of law, that is, without notice and opportunity to be heard. [77] Verily, when an employee has complied with the statutory requirements to be entitled to receive his retirement benefits, his right to retire and receive what is due him by virtue thereof becomes vested and may not thereafter be revoked or impaired.

Moreover, Section 63 of the EPIRA law, if misinterpreted as proscribing payment of retirement benefits under the GSIS law, would be unconstitutional as it would be violative of Section 10, Article III of the 1987 Constitution [78] or the provision on non-impairment of contracts. In view of the fact that separation pay and retirement benefits are different entitlements, as they have different legal bases, different sources of funds, and different intents, the "exclusiveness of benefits" rule provided under R.A. No. 8291 is not applicable. Section 55 of R.A. No. 8291 states: "Whenever other laws providesimilar benefits for the same contingencies covered by this Act, the member who qualifies to the benefits shall have the option to choose which benefits will be paid to him." Accordingly, the Court declares that separated, displaced, retiring, and retired employees of NPC are legally entitled to the retirement benefits pursuant to the intent of Congress and as guaranteed by the GSIS laws. Thus, the Court reiterates: 1] that the dispositive portion in Herrera holding that separated and retired employees "are not entitled to receive retirement benefits under Commonwealth Act No. 186," referred only to the gratuity benefits under R.A. No. 1616, which was to be paid by NPC, being the last employer; 2] that it did not proscribe the payment of the retirement benefits to qualified retirees under R.A. No. 660, P.D. No. 1146, R.A. No. 8291, and other GSIS and social security laws; and 3] that separated, rehired, retiring, and retired employees should receive, and continue to receive, the retirement benefits to which they are legally entitled. Petition for Mandamus As for petitioner's prayer that he be reinstated, suffice it to state that the issue has been rendered moot by the Decision and Resolutions of this Court in the case of NPC Drivers and Mechanics Association (NPC DAMA) v. National Power Corporation (NPC)[79] and by the above disquisitions. In Conclusion While we commend petitioner's attempt to argue against the privatization of the NPC, it is not the proper subject of herein petition. Petitioner belabored on alleging facts to prove his point which, however, go into policy decisions which this Court must not delve into less we violate separation of powers. The wisdom of the privatization of the NPC cannot be looked into by this Court as it would certainly violate this guarded principle. The wisdom and propriety of legislation is not for this Court to pass upon.[80] Every law has in its favor the presumption of constitutionality, and to justify its nullification, there must be a clear and unequivocal breach of the Constitution, and not one that is doubtful, speculative or argumentative.[81] As in National Power Corporation Employees Consolidated Union (NECU) v. National Power Corporation (NPC),[82] this Court held: Whether the State's policy of privatizing the electric power industry is wise, just, or expedient is not for this Court to decide. The formulation of State policy is a legislative concern. Hence, the primary judge of the necessity, adequacy, wisdom, reasonableness and expediency of any law is primarily the function of the legislature.[83] WHEREFORE, premises considered and subject to the above disquisitions, the Petition for Certiorari and the Supplemental Petition for Mandamus are Dismissed for lack of merit. SO ORDERED.

Republic of the Philippines

FIRST DIVISION

CARMELITO N. VALENZONA, Petitioner,

G.R. No. 176884

Present: - versus CORONA, C.J., Chairperson, LEONARDO-DE CASTRO, BERSAMIN, DEL CASTILLO, and VILLARAMA, JR., JJ.

FAIR SHIPPING CORPORATION and/or SEJIN LINES COMPANY LIMITED, Respondents.

Promulgated: October 19, 2011

x-------------------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

Permanent disability refers to the inability of a worker to perform his job for more than 120 days, regardless of whether he loses the use of any part of his body. What determines petitioners entitlement to permanent disability benefits is his inability to work for more than 120 days.1[1] On the other hand, [p]ermanent total disability means disablement of an employee to earn wages in the same kind of work, or work of similar nature that he was trained for or accustomed to perform, or any kind of work which a person of his mentality and attainment could do. helplessness.2[2] It does not mean absolute

This Petition for Review on Certiorari assails the January 17, 2007 Decision3[3] of the Court of Appeals (CA) in CA-G.R. SP No. 96303 which dismissed the Petition for Certiorari filed by petitioner Carmelito N. Valenzona (petitioner). Also assailed is the February 28, 2007 Resolution4[4] denying the motion for reconsideration.

Factual Antecedents

On May 5, 2001, respondent Fair Shipping Corporation, for and on behalf of its principal, respondent Sejin Lines Company Limited, hired petitioner as 2nd Assistant Engineer aboard its vessel M/V Morelos for a duration of nine months.5[5] Before his embarkation on May 23, 2001,6[6] he was declared medically fit to work.7[7]

However, while aboard the vessel on September 29, 2001, petitioner complained of chest pain.8[8] He was thus brought to Centro Medico Quirurgico Echauri in Mexico where he was confined up to October 6, 2001 and diagnosed with hypertensive crisis, high blood pressure.9[9]

A day after his repatriation to the Philippines on October 8, 2001,10[10] petitioner was examined by Dr. Nicomedes G. Cruz (Dr. Cruz), the company-designated physician who diagnosed his illness as hypertension.11[11] Dr. Cruz continuously treated petitioner for six months, i.e., from October 9, 2001 until April 25, 2002.12[12]

On April 18, 2002, however, petitioner consulted another doctor, a certain Dr. Mapapala at the Jose Reyes Memorial Medical Center who diagnosed him with Hypertensive Cardiovascular Disease.13[13] Considering his prolonged sickness, petitioner, on April 18, 2002, through Atty. Anastacio P. Marcelo, wrote a letter14[14] to respondents demanding payment of the balance of his sickness allowance and permanent disability benefits. However, same went unheeded.15[15]

Thereafter, or on April 25, 2002, Dr. Cruz issued a certification declaring petitioner as fit to work.16[16]

Unconvinced, on April 27, 2002, petitioner consulted Dr. Rodrigo F. Guanlao, an Internist-Cardiologist at the Philippine Heart Center who diagnosed him with Ischemic heart disease, Hypertensive cardiovascular disease and congestive heart failure and also declared him unfit to work in any capacity.17[17]

Hence, petitioner filed a complaint for recovery of disability benefits, sickness allowance, attorney's fees and moral damages.18[18]

Ruling of the Labor Arbiter

On January 31, 2003, the Labor Arbiter19[19] rendered a Decision20[20] the dispositive portion of which reads as follows:

CONFORMABLY WITH THE FOREGOING, judgment is hereby rendered ordering the respondents in solidum to pay complainant in peso equivalent, the following amount: 1. 2. P21,581.39 as the balance of his sickness allowance; and US$809.00 his one (1) month pay as penalty.

SO ORDERED.21[21]

The Labor Arbiter awarded sickness allowance to petitioner equivalent to four months of his basic wage22[22] pursuant to the Standard Terms and Conditions Governing the Employment of Filipino Seafarers On Board Ocean-Going Vessels23[23] (or the POEAs24[24] Standard Employment Contract) and petitioner's Collective Bargaining Agreement (CBA).25[25] Records however showed that petitioner already

received partial payment of his sickness allowance, hence he is entitled only to the remaining balance of P21,581.39.26[26]

Anent petitioner's claim for disability benefits, the Labor Arbiter opined that he is not entitled thereto because under the CBA, said benefits can be claimed only for disability resulting from accidents and not due to illness.27[27] The Labor Arbiter also held that even under the POEA Standard Employment Contract, particularly Section 20, paragraph B thereof, petitioner is not entitled to disability benefits since he was declared fit to work by the company-designated physician. Corollarily, the Labor Arbiter found the assessment of Dr. Cruz deserving of more credence than the assessments of the private physicians consulted by petitioner because the former treated petitioner more extensively.28[28] Nonetheless, the Labor Arbiter noted that respondents failed to deploy petitioner even after he was declared fit to work; thus, the respondents were ordered to pay petitioner his one-month salary as penalty therefor.29[29]

Ruling of the National Labor Relations Commission (NLRC)

Both parties filed their appeal to the NLRC. On May 26, 2006, the NLRC rendered its Decision30[30] the dispositive portion of which reads:

WHEREFORE, complainant's appeal is dismissed for lack of merit. On the other hand, respondents' appeal is granted. The Labor Arbiter's award of P21,581.39 by way of balance of the sickness allowance is deleted as the same had been extinguished by payment, while the award of US$809.00 as a penalty is set aside for lack of factual and legal basis. SO ORDERED.31[31]

The NLRC affirmed the findings of the Labor Arbiter that petitioner is not entitled to disability benefits because the CBA provision awarding the same refers to permanent disability suffered by the seafarer resulting from an accident and not from an illness.32[32] As such, the NLRC found as irrelevant the issue of whether the companydesignated physician's assessment of petitioner's disability deserves credence.33[33]

As regards the sickness allowance, the NLRC noted that during the pendency of the case, respondents had already paid the remaining amount of P21,581.39. Consequently, respondents' obligation to pay the same had been extinguished.34[34]

Anent the amount of US$809.00 imposed upon the respondents as penalty for their failure to re-deploy petitioner, the NLRC ruled that the same is without factual and legal basis. The NLRC held that petitioner is a contractual employee; consequently, after the expiration of his contract, the respondents were not duty-bound to deploy him absent a new contract.35[35]

Petitioner filed a motion for reconsideration36[36] but same was denied in the Resolution37[37] dated July 31, 2006. Certiorari38[38] with the CA. Petitioner thus filed a Petition for

Ruling of the Court of Appeals

On January 17, 2007, the CA rendered its Decision39[39] denying the petition and affirming the Decision of the NLRC. The CA concurred with the findings of the Labor Arbiter and the NLRC that petitioner is not entitled to disability benefits under the CBA as the same referred to disabilities caused by accidents and not by illness.40[40] The CA further ruled that even under the POEA Standard Employment Contract, petitioner is still not entitled to disability benefits because he was declared fit to work by the companydesignated physician.41[41] The CA found the evaluation of Dr. Cruz more accurate

since he treated petitioner for more than six months42[42] whereas the physicians consulted by petitioner examined him for only one day.

The dispositive portion of the CA Decision reads:

WHEREFORE, the petition is DENIED DUE COURSE. The decision of the NLRC is AFFIRMED.43[43]

Petitioner moved for reconsideration44[44] but same was denied in the Resolution45[45] dated February 28, 2007.

Hence, this Petition.

Issue

The main issue raised by both parties is whether petitioner is entitled to receive permanent disability benefits as well as attorneys fees.

The parties' arguments.

Petitioner insists that he is entitled to permanent disability benefits because he was declared unfit to work by his private physicians who are expert cardiologist vis--vis Dr. Cruz who is a general and cancer specialist.46[46] More significantly, he claims that the assessment of Dr. Cruz that he is fit to work was issued after the lapse of 120 days from the date of his repatriation, as such his disability is considered total and permanent.47[47]

On the other hand, respondents argue that petitioner is not entitled to receive permanent disability benefits because he was assessed fit to work by the company-

designated physician48[48] whose evaluation is more accurate because he treated petitioner for more than six months.49[49] Respondents also claim that the mere fact that he was unable to work for more than 120 days does not automatically entitle him to total permanent disability benefits.50[50] They argue that the duration of disability is not relevant for purposes of determining disability benefits51[51] and that petitioners degree of disability and amount of disability benefits should be based on the Schedule of Disability under Section 32 of the POEA contract52[52] as assessed by the doctor and not by the mere lapse of 120 days.53[53]

Our Ruling

The petition is meritorious.

Petitioner is entitled to permanent disability benefits.

a) The certification by the companydesignated physician that petitioner is fit to work was issued after 199 days or more than 120 days from the time he was medically repatriated to the Philippines.

Petitioners Employment Contract54[54] specifically provides that the same shall be deemed an integral part of the Standard Terms and Conditions Governing the Employment of Filipino Seafarers On Board Ocean-Going Vessels otherwise known as the POEA Standard Employment Contract. Section 20(B) of the POEA Standard Employment Contract provides:

B. COMPENSATION AND BENEFITS FOR INJURY OR ILLNESS xxxx

3. Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has been assessed by the company-designated physician but in no case shall this period exceed one hundred twenty (120) days. xxxx

The Labor Code's provision on permanent total disability applies with equal force to seafarers.55[55] Article 192 (c) (1) of the Labor Code provides, viz;

Art. 192. Permanent total disability. - x x x xxxx (c) The following disabilities shall be deemed total and permanent: (1) Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided for in the Rules;

x x x x56[56]

Thus, in Quitoriano v. Jebsens Maritime, Inc.,57[57] we held that:

Thus, Court has applied the Labor Code concept of permanent total disability to the case of seafarers. x x x xxxx There are three kinds of disability benefits under the Labor Code, as amended by P.D. No. 626: (1) temporary total disability, (2) permanent total disability, and (3) permanent partial disability. Section 2, Rule VII of the Implementing Rules of Book V of the Labor Code differentiates the disabilities as follows:
Sec. 2. Disability. - (a) A total disability is temporary if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period not exceeding 120 days, except as otherwise provided for in Rule X of these Rules. (b) A disability is total and permanent if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period exceeding 120 days, except as otherwise provided for in Rule X of these Rules. (c) A disability is partial and permanent if as a result of the injury or sickness the employee suffers a permanent partial loss of the use of any part of his body.

In Vicente v. ECC (G.R. No. 85024, January 23, 1991, 193 SCRA 190, 195):
x x x the test of whether or not an employee suffers from 'permanent total disability' is a showing of the capacity of the employee to continue performing his work notwithstanding the disability he incurred. Thus, if by reason of the injury or sickness he sustained, the employee is unable to perform his customary job for more than 120 days and he does not come within the coverage of Rule X of the Amended Rules on Employees Compensability (which, in more detailed manner, describes what constitutes temporary total disability), then the said employee undoubtedly suffers from 'permanent total disability' regardless of whether or not he loses the use of any part of his body.

A total disability does not require that the employee be absolutely disabled or totally paralyzed. What is necessary is that the injury must be such that the employee cannot pursue his usual work and earn therefrom (Austria v. Court of Appeals, G.R. No. 146636, Aug. 12, 2002, 387 SCRA 216, 221). On the other hand, a total disability is considered permanent if it lasts continuously for more than 120 days. Thus, in the very recent case of Crystal Shipping, Inc. v. Natividad (G.R. No. 134028, December 17, 1999, 321 SCRA 268, 270-271), we held: Permanent disability is inability of a worker to perform his job for more than 120 days, regardless of whether or not he lose[s] the use of any part of his body. x x x

Total disability, on the other hand, means the disablement of an employee to earn wages in the same kind of work of similar nature that he was trained for, or accustomed to perform, or any kind of work which a person of his mentality and attainments could do. It does not mean absolute helplessness. In disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one's earning capacity.58[58]

In Quitoriano, the seafarer therein was medically repatriated to the Philippines on May 30, 200159[59] and upon arrival, he underwent several tests at the Medical Center Manila under the care of Dr. Cruz, the company-designated physician,60[60] who incidentally is the same Dr. Cruz who treated petitioner in the instant case. After a lapse of 169 days from his repatriation, or on November 16, 2001, Dr. Cruz declared the seafarer therein fit to work.61[61] Unconvinced, the seafarer consulted an independent internist-cardiologist who diagnosed him as suffering from hypertension cardiovascular disease and hyperlipidemia.62[62] The seafarer thus demanded from the shipping company payment of his permanent disability benefits but he was rebuffed on the ground

that he was declared fit to work by Dr. Cruz.63[63] The seafarer thus filed a complaint to recover his permanent disability benefits and attorney's fees. The case eventually reached this Court raising the issue of whether the CA erred in not finding the disability of the seafarer as permanent and total and for not awarding him attorney's fees.64[64] The Court ruled in favor of the seafarer holding that the fact that it was only on November 16, 2001 that the 'fit to work' certification was issued by Dr. Cruz or more than five months from the time petitioner was medically repatriated on May 30, 2001, petitioner's disability is considered permanent and total.65[65]

The ruling in Quitoriano applies in the instant case. Similarly, petitioner herein was medically repatriated to the Philippines on October 8, 2001. However, it was only on April 25, 2002 or after a lapse of 199 days that Dr. Cruz issued a certification declaring him fit to work. Thus, we declare herein, just as we pronounced in Quitoriano, that petitioners disability is considered permanent and total because the fit to work certification was issued by Dr. Cruz only on April 25, 2002, or more than 120 days after he was medically repatriated on October 8, 2001.

b)

The company-designated physicians certification that petitioner is fit to work does not make him ineligible for permanent total disability benefits.

We find no merit in respondents' contention that the company-designated physician's assessment that petitioner is fit to work makes him ineligible to claim permanent disability benefits.66[66] This issue has already been raised, and rebuffed, in United Philippine Lines, Inc. v. Beseril.67[67] Petitioners therein argued that the provisions on disability benefits operate only upon certification by the companydesignated physician that the claiming seafarer is indeed disabled, hence, respondent is not eligible for an award of disability benefits as 'he was certified fit for sea duty after the conduct of the last medical examination'.68[68] resoundingly rebuffed by the Court, thus: However, this line of argument was

But even in the absence of an official finding by the company-designated physicians that respondent is unfit for sea duty, respondent is deemed to have suffered permanent disability. Permanent disability is the inability of a worker to perform his job for more than 120 days, regardless of whether he loses the use of any part

of his body. It is undisputed that from the time respondent suffered a heart attack on December 5, 1997, he was unable to work for more than 120 days, his cardiac rehabilitation and physical therapy having ended only on May 28, 1998. That respondent was found to be 'fit to return to work' by Clinica Manila (where he underwent regular cardiac rehabilitation program and physical therapy from January 15 to May 28, 1998 under UPL's account) on September 22, 1998 or a few months after his rehabilitation does not matter. x x x69[69]

Considering the circumstances prevailing in the instant case, we likewise rule that it does not matter that the company-designated physician assessed petitioner as fit to work. It is undisputed that from the time petitioner was repatriated on October 8, 2001, he was unable to work for more than 120 days as he was only certified fit to work on April 25, 2002. Consequently, petitioner's disability is considered permanent and

total.70[70] In fact, from his repatriation until the filing of his petition before this Court on March 21, 2007,71[71] or for more than five years, petitioner claims that he was unable to resume his job as a seaman72[72] which thus strongly indicates that his disability is permanent and total. Also, we note that the certification was issued only after petitioner consulted a private physician (Dr. Mapapala) and after he formally demanded

from the respondents, through his lawyer, the payment of his sickness allowance, disability benefits and attorney's fees.

Consequently, we find it irrelevant to discuss at this juncture as to which prognosis, that of Dr. Cruz or petitioner's private physicians', is more accurate.

The case of Sarocam v. Interorient Maritime Ent. Inc. is not in point.

The CA73[73] erroneously applied Sarocam v. Interorient Maritime Ent. Inc.74[74] in ruling that petitioner is no longer entitled to claim disability benefits since he was declared fit to work by Dr. Cruz. The factual circumstances in Sarocam completely differ from the instant case. In Sarocam, the seafarer therein was declared fit to work by the company-designated physician after a lapse of only 13 days from the date of his repatriation75[75] hence way before the lapse of the 120-day mark. Moreover, the seafarer therein executed a release and quitclaim in favor of his employers

acknowledging receipt of his sickness benefits wages and freeing his employers of any liability.76[76]

The amount of permanent disability benefits.

In his Petition, petitioner claims for disability benefits in the amount of US$80,000.00 pursuant to the CBA.77[77] In his Memorandum, however, he concedes that the CBA provision does not apply78[78] and now claims for only US$60,000.00 as disability benefits pursuant to the POEA Standard Employment Contract.

Indeed, the CBA provision does not apply as the same refers to disability arising from accidents and not due to illness as in the case of petitioner. The pertinent CBA provision reads:

Sec. I: A seafarer who suffers permanent disability as a result of an accident, regardless of fault but excluding injuries caused by a seafarer's willful act, whilst in the employment of the Company including accidents occurring while travelling to or from the Ship, and whose ability to work is reduced as a result thereof, shall in addition to sick pay be entitled to compensation according to the provisions of this agreement. The copy/ies of the medical certificate and other relevant medical reports shall be made available by the Company to the seafarer.79[79]

On the other hand, the POEA Standard Employment Contract particularly Section 20(B) (6) thereof provides, to wit:

6. In case of permanent total or partial disability of the seafarer caused by either injury or illness the seafarer shall be compensated in accordance with the schedule of benefits enumerated in Section 32 of this Contract. Computation of his benefits arising from an illness or disease shall be governed by the rates and the rules of compensation applicable at the time the illness or disease was contracted.

In turn, Section 32 provides that for an impediment considered as total and permanent, a disability allowance of US$60,000.00 (US$50,000.00 x 120%) is granted. Therefore, considering our earlier discussion finding petitioners disability as permanent and total, he is then entitled to receive disability benefits of US$60,000.00.

Petitioner is entitled to attorneys fees.

Petitioner alleges that he is entitled to attorneys fees pursuant to Article 2208 of the Civil Code because he was forced to litigate to recover his wages.80[80] On the other hand, respondents argue that petitioners claim for attorneys fees is without legal and factual basis.

We find for the petitioner. Circumstances show that he demanded from the respondents the payment of his disability benefits but the same went unheeded. Left with no other recourse, petitioner filed the instant case to recover what is rightfully his under the law. Plainly, he was compelled to litigate due to respondent[s'] failure to satisfy his valid claim, [thus, he] is x x x entitled to attorney's fees of ten percent (10%) of the total award at its peso equivalent at the time of actual payment.81[81]

WHEREFORE, the petition is GRANTED. The January 17, 2007 Decision of the Court of Appeals and its February 28, 2007 Resolution in CA-G.R. SP No. 96303 are REVERSED and SET ASIDE. Respondents are held jointly and severally liable to pay petitioner permanent and total disability benefits of US$60,000.00 and attorney's fees of ten percent (10%) of the total monetary award, both at its peso equivalent at the time of actual payment.

SO ORDERED.

EN BANC

GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS), HERMOGENES D. CONCEPCION, JR., WINSTON F. GARCIA, REYNALDO P. PALMIERY, LEOVIGILDO P. ARRELLANO, ELMER T. BAUTISTA, LEONORA V. DE JESUS, FULGENCIO S. FACTORAN, FLORINO O. IBAEZ, AIDA C. NOCETE, AURORA P. MATHAY, ENRIQUETA DISUANCO, AMALIO MALLARI, LOURDES PATAG, RICHARD M. MARTINEZ, ASUNCION C. SINDAC, GLORIA D. CAEDO, ROMEO C. QUILATAN, ESPERANZA FALLORINA, LOLITA BACANI, ARNULFO MADRIAGA, LEOCADIA S. FAJARDO, BENIGNO BULAONG, SHIRLEY D. FLORENTINO, and LEA M. MENDIOLA,

G. R. No. 162372

Present:

CORONA, C.J., CARPIO, VELASCO, JR., LEONARDO-DE CASTRO, BRION, PERALTA,

BERSAMIN,* Petitioners, DEL CASTILLO,* - versus ABAD, VILLARAMA, JR., COMMISSION ON AUDIT (COA), AMORSONIA B. ESCARDA, MA. CRISTINA D. DIMAGIBA, and REYNALDO P. VENTURA, Respondents. PERLAS-BERNABE, JJ. PEREZ, MENDOZA, SERENO, REYES, and

Promulgated:

October 19, 2011

x--------------------------------------------------x DECISION

LEONARDO-DE CASTRO, J.:

This is a petition for review on certiorari under Rule 64 in relation to Rule 65 of the 1997 Rules of Court to annul and set aside the Commission on Audits Decision Nos. 2003-062 and 2004-004 dated March 18, 2003 and January 27, 2004, respectively, for having been made without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction.

The Government Service Insurance System (GSIS) is joined by its Board of Trustees and officials, namely: Chairman Hermogenes D. Concepcion, Jr.; ViceChairman and President and General Manager Winston F. Garcia (Garcia); Executive Vice President and Chief Operating Officer Reynaldo P. Palmiery; Trustees Leovigildo P. Arrellano, Elmer T. Bautista, Leonora V. de Jesus, Fulgencio S. Factoran, Florino O. Ibaez, and Aida C. Nocete; Senior Vice Presidents Aurora Mathay, Enriqueta Disuangco, Amalio Mallari, Lourdes Patag, and Asuncion C. Sindac; Vice Presidents Richard Martinez, Romeo C. Quilatan, and Gloria D. Caedo; and Managers Esperanza Fallorina, Lolita Bacani, Arnulfo Madriaga, Leocadia S. Fajardo, Benigno Bulaong, Shirley D. Florentino, and Lea M. Mendiola, together with all other officials and employees held liable by the Commission on Audit (COA) as petitioners in this case.82[1]

The respondents in this petition are: the COA; its Director of Corporate Audit Office (CAO) I, Amorsonia B. Escarda (Escarda), who rendered CAO I

Decision No. 2002-009 dated May 27, 2002; the former Corporate Auditor of GSIS, Ma. Cristina D. Dimagiba (Dimagiba), who issued the Notices of Disallowance subject of CAO I Decision No. 2002-009; and the incumbent GSIS Corporate Auditor Reynaldo P. Ventura (Ventura).83[2]

The facts are as follows:

On May 30, 1997, Republic Act No. 8291, otherwise known as The Government Service Insurance System Act of 1997 (the GSIS Act) was enacted and approved, amending Presidential Decree No. 1146, as amended, expanding and increasing the coverage and benefits of the GSIS, and instituting reforms therein.

On October 17, 2000, pursuant to the powers granted to it under Section 41(n) of the said law, the GSIS Board of Trustees, upon the recommendation of the Management-Employee Relations Committee (MERCOM), approved Board Resolution No. 326 wherein they adopted the GSIS Employees Loyalty Incentive Plan (ELIP),84[3] to wit:

GSIS EMPLOYEES LOYALTY INCENTIVE PLAN (Pursuant to Sec. 41(n) of R.A. No. 8291)

OBJECTIVE : To motivate and reward employees for meritorious, faithful and satisfactory service

II COVERAGE

The GSIS Employees Loyalty Incentive Plan shall cover all present permanent employees and members of the Board and those who may hereafter be appointed.

III SPECIFIC BENEFIT : LI = TGS* MULTIPLIED BY HS MINUS 5yLS/BPRCP

Where : LI = loyalty incentive TGS = total government service HS = highest monthly salary/benefit received 5yLS = 5 year lump sum under RA 660, RA 910, PD 1146 or RA 8291 BPRCP = retirement benefit previously received plus cash payment for employees no longer qualified to 5yLS

*Determined as follows:

**For positions salary grade 1-26 For positions SG 27 up

1 - 20 yrs x 1.5 21 - 30 yrs x 2.0 31 yrs above x 2.5

1 - 20 yrs x 1.25 21 - 30 yrs x 1.75 31 yrs above x 2.00

**Subject to review. Applicable only to present salary structure.

IV IMPLEMENTING POLICIES:

1. To be entitled to the plan, the employee must be qualified to retire with 5 year lump sum under RA 660 or RA 8291 or had previously retired under applicable retirement laws 2. The loyalty incentive benefit shall be computed based on both total government service and highest monthly salary/benefit received from GSIS

3. Employees with pending administrative and/or criminal case may apply but processing and payment of loyalty incentive shall be held in abeyance until final decision on their cases

4. GSIS loyalty incentive plan can only be availed once and employees who retired under GERSIP97 are no longer qualified

5. There shall be no refund of retirement premiums in all cases

6. Application is subject to approval by the President and General Manager

PROCEDURE:

1. Employees availing of the Employee Loyalty Incentive Plan must file his/her application under RA 66085[4] or RA 8291 for the five (5) year lump sum, with HRS for indorsement to SIG 2. Option 2 under RA 8291 may be allowed but the loyalty incentive shall be computed based on 5 year lump sum

3. The loyalty incentive shall only be paid after deducting the lump sum under RA 660, RA 910,86[5] PD 114687[6] or RA 8291 or retirement benefit previously received plus cash payment

4.

Government service of previously retired employees shall be considered in computing the loyalty incentive

5.

For expediency, the processing of the plan shall be done by the Social Insurance Group

EFFECTIVITY DATE: The Plan shall take effect August, 2000. (Emphases supplied.)

On November 21, 2000, Board Resolution No. 326 was amended by Board Resolution No. 360,88[7] which provided for a single rate for all positions, regardless of salary grade, in the computation of creditable service, viz:

1-20 years 21-30 years 31 years above

x x x

1.5 2.0 2.5

Except as herein amended, Resolution No. 326 dated October 17, 2000 shall remain to have full force and effect.

Dimagiba, the corporate auditor of GSIS, communicated to the President and General Manager of GSIS that the GSIS RFP was contrary to law. However, the GSIS Legal Services Group opined that the GSIS Board was legally authorized to adopt the plan since Section 28(b) of Commonwealth Act No. 186 as amended by Republic Act No. 4968 has been repealed by Sections 3 and 41(n) of Republic Act No. 8291.89[8]

On January 16, 2001, Board Resolution No. 690[9] was approved, wherein ELIP was renamed GSIS Retirement/Financial Plan (RFP) to conform strictly to the wordings of Section 41(n) of Republic Act No. 8291.

Upon Garcias assumption of office as President and General Manager, Dimagiba requested to again review the GSIS RFP. Garcia.91[10] This was denied by

Believing that the GSIS RFP was morally indefensible,92[11]

Dimagiba sought the assistance of COA in determining the legality and/or morality of the said Plan in so far as it has adopted the best features of the two retirement schemes, the 5-year lump sum payment under [Republic Act No.] 1616 and the monthly pension of [Republic Act No.] 660 based on the creditable service computed at 150%.93[12]

On August 7, 2001, COAs General Counsel Santos M. Alquizalas (Alquizalas) issued a Memorandum to COA Commissioner Raul C. Flores regarding the GSIS

RFP. Alquizalas opined that the GSIS RFP is a supplementary retirement plan, which is prohibited under Republic Act No. 4968, or the Teves Retirement Law. He also said that since there is no provision in the new Republic Act No. 8291 expressly repealing the Teves Retirement Law, the two laws must be harmonized absent an irreconcilable inconsistency. Alquizalas pronounced that Board

Resolution Nos. 360 and 6 are null and void for being violative of Section 28(b) of Commonwealth Act No. 186 as amended by Republic Act No. 4968, which bars the creation of a supplemental retirement scheme; and Section 41(n) of Republic Act No. 8291, which speaks of an early retirement plan or financial assistance.94[13]

On August 14, 2001,95[14] Commissioner Flores forwarded this Memorandum to Dimagiba, who in turn forwarded it to Garcia on August 23, 2001. Dimagiba, in her letter attached to Alquizalass Memorandum, added that for lack of legal basis, her office was disallowing in audit the portion of retirement benefits granted under the GSIS RFP, or the excess of the benefits due the retirees. She also said that GSIS could avail of the appeal process

provided for under Sections 48 to 50 of Presidential Decree No. 1445 and Section 37.1 of the Manual on Certificate of Settlement and Balances.96[15]

On August 27, 2001, Garcia responded97[16]to Dimagiba, taking exception to the notice of disallowance for being highly irregular and precipitate as it was based on a mere opinion of COAs counsel who had no authority to declare the resolution of the GSIS Board of Trustees as null and void. Moreover, Garcia asseverated that COA had neither power nor authority to declare as null and void certain resolutions approved by the Board of Government Corporations, as the power to do so was exclusively lodged before the courts. He also argued that the notice of disallowance was premature, and was tantamount to a pre-audit activity, as it should refer only to a particular or specific disbursement of public funds and not against a general activity or transaction. Garcia averred that the GSIS RFP was part and parcel of the compensation package that GSIS may provide for its personnel, by virtue of the powers granted to its Board of Trustees under Section 41(m) and (n) of Republic Act No. 8291. Garcia said that the appeal process would commence only upon GSISs receipt of the particulars of the

disallowances.98[17] Finally, Garcia requested Dimagiba to withdraw the notices of disallowance in the interest of industrial peace in the GSIS.99[18]

Without responding to Garcias August 27, 2001 Memorandum, Dimagiba issued the following Notices of Disallowance on the grounds that:

Pursuant to legal opinion of the General Counsel dated August 7, 2001, Board Resolution No. 360 dated Nov. 21, 2000 as amended by No. 6 dated Jan. 16, 2001 approving the Employees Loyalty Incentive Plan (ELIP) is null and void for being directly in conflict with Section 28(b) of CA No. 186 as amended by RA 4968 which bars the creation of supplemental retirement scheme and of Section 41 (n) of RA 8291 which speaks of an early retirement plan or financial assistance.100[19]

Notices of Disallowance dated September 19, 2001101[20] Notice of Disallowance Payee Amount Disallowed Persons Liable:

No./Period covered:

Board of Trustees; Lourdes Patag (SVP), Gloria Caedo (VP-SIAMS II), the payee, and the following officers:

2001-01-412/ Marina Santamaria 6,895,545.84

2001-02-412/ Rosita N. Lim

2,281,005.52 1,201,581.29

Richard Martinez Lea M. Mendiola

2001-03-412/ Manuel G. Ojeda January 2001

Daniel Mijares Romeo Quilatan Richard Martinez Benigno Bulaong Winston F. Garcia Esperanza Fallorina Lea M. Mendiola Winston F. Garcia Esperanza Fallorina Lea M. Mendiola Shirley Florentino Enriqueta Disuanco Aurora P. Mathay

2001-04-412/ Federico Pascual March 2001

11,444,957.32

2001-05-412/ Juanito Gamier, Sr. 332,035.79 March 2001

2001-06-412/ Vicente Villegas May 2001

4,792,260.17

Lea M. Mendiola

Notices of Disallowance dated October 22, 2001102[21] Persons Liable:

Notice of Disallowance No./Period covered: July 24, 2001

Payee

Amount Disallowed

Asuncion Sindac (VP); Richard M. Martinez (VP & Controller); Lea M. Mendiola (Manager, HRSD); the payee; and the following officers:

2001-07-412

Rustico G. Delos 1,968,516.01 Angeles Lourdes Angeles Delos 4,320,567.99

Reynaldo Palmiery

2001-08-412

Reynaldo Palmiery Amalio A. Mallari Lolita B. Bacani

2001-09-412

Gloria L. Anonuevo 1,308,705.75

2001-10-412

Elvira J. Agcaoili

2,313,729.41

Reynaldo Palmiery Amalio A. Mallari (except Richard Martinez and Lea M. Mendiola)

2001-11-412

Segundina Dionisio

S. 743,877.21

Notices of Disallowance dated October 23, 2001103[22] Persons Liable:

Notice of Disallowance No./Period covered: July 24, 2001

Gloria Caedo (VP-SIAMS II);

Payee

Amount Disallowed

Asuncion Sindac (VP); Lea M. Mendiola (Manager, HRSD); the payee; and the following officers:

2001-12-412

Daniel N. Mijares

7,148,031.17

Reynaldo Palmiery Richard Martinez Reynaldo Palmiery Richard Martinez

2001-13-412

Melinda A. Flores

1,459,974.12

2001-14-412

Democrito Silang Manuel P. Bausa

M. 532,869.65

Manuel P. Bausa Enriqueta Disuanco Arnulfo Madriaga Reynaldo Palmiery Richard Martinez Lourdes A. Delos Angeles

2001-15-412

1,955,561.67

Notices of Disallowance dated November 9, 2001104[23] Persons Liable:

Notice of Disallowance No./Period covered:

Winston F. Garcia (PGM);

Payee

Amount Disallowed

Asuncion Sindac (SVP); Gloria Caedo (VP); the payee; and the following officers:

2001-16-412/ Lourdes G. Patag June 28, 2001 2001-17-412/ Elvira U. Geronimo

7,883,629.28

Enriquita Disuanco Lea M. Mendiola Richard Martinez

5,648,739.26

July 17, 2001

Notices of Disallowance dated November 13, 2001105[24] Persons Liable:

Notice of Disallowance No./Period covered:

Asuncion Sindac (SVP);

Payee

Amount Disallowed

Gloria Caedo (VP); Lea M. Mendiola (Manager, HRSD) the payee; and the following officers:

2001-20-412/ Modesto Leon

A.

De 2,887,056.75

Daniel N. Mijares Romeo Quilatan Reynaldo Palmiery Richard Martinez Leocadia S. Fajardo

2001-21-412/ Antonio S. De 931,583.11 Castro July 20, 2001 2001-22-412/ Teresa O. Loyola 485,184.27
August 27, 2001

2001-23-412/ Pablito B. Galvez

93,487.54

Reynaldo Palmiery Shirley Florentino

On January 30, 2002, GSIS, together with some of the petitioners herein, gave notice106[25] to the COA CAO I that it was appealing the 21 Notices of Disallowance it had received from Dimagiba on various dates. It amended107[26] this Notice of Appeal the following day, to include all GSIS officials and employees held liable and accountable under the said disallowances.108[27]

In their Memorandum of Appeal,109[28] the petitioners mainly argued that GSIS had the power, under its charter, to adopt and implement the GSIS RFP. They alleged that their plan was not unique to GSIS as other government agencies also have their own retirement or financial assistance plans. They claimed that to then disallow their retirement plan would be tantamount to a violation of their constitutional right to be equally protected by our laws.110[29] The petitioners also argued that Republic Act No. 8291 had modified or repealed all provisions of the Teves Retirement Law that were inconsistent with it and that GSISs officials

could not be held liable or accountable for implementing the GSIS RFP since this was done in the performance of their duties.111[30]

On May 27, 2002, the COA, through Escarda, in CAO I Decision No. 2002009,112[31] affirmed the disallowances made by Dimagiba. Escarda sustained the COA general counsels opinion and said that while the GSIS may have the power to adopt an early retirement or a financial assistance plan under its charter, it cannot supplement a retirement plan already existing under the law. Escarda said that the purpose of an early retirement plan is generally to streamline the organization by encouraging those who would not be qualified for compulsory retirement to retire early under the plan. However, Escarda claimed, the availees of the plan were employees whose supposed monthly pensions under the GSIS RFP included services they had already earned in other government agencies. Thus, Escarda held that the GSIS RFP was in reality a supplementary retirement plan for these GSIS employees. Finally, Escarda

disagreed with GSISs assertion that the Teves Retirement Law had been modified or repealed as the repealing clause in Republic Act No. 8291 is a general repealing

clause, which is frowned upon and is generally not effective to repeal a specific law like the Teves Retirement Law.113[32]

Undaunted, the petitioners filed before the COA a Petition for Review114[33] of CAO Is decision, raising the exact same issues it raised in its Memorandum of Appeal dated February 14, 2002, to wit:

Whether or not petitioners/appellants GSIS and GSIS Board of Trustees have the power and authority to design and adopt the questioned GSIS Retirement Financial Plan.

II

Whether or not petitioners/appellant GSIS officials who are merely implementing the GSIS Act of 1997 and duly adopted Board Resolutions must be held responsible and accountable for the implementation of the GSIS Retirement Financial Plan.

III

Whether or not the adoption of the GSIS Retirement Financial Plan violated Section 28 (b) of CA No. 186 as amended by Republic Act No. 4968, and Section 41(n) of Republic Act No. 8291, otherwise known as the GSIS Act of 1997.

IV

Whether or not the COA disallowance of the GSIS Retirement Financial Plan is lawful, and the CAO I Decision No. 2002-009 and the Notices of Disallowance issued by GSIS Corporate Auditor Dimagiba are proper.115[34]

On March 18, 2003, COA issued Decision No. 2003-062,116[35] wherein the issue was narrowed down to whether or not the GSIS Board can reward themselves with unusually large benefits in the face of an unusually large actuarial deficit which will result in the denial of benefits of future retirees in other government agencies for whom the fund is principally intended.117[36]

COA zeroed in on the fact that to be entitled to the GSIS RFP, the employee must be qualified to retire with 5-year lump sum under R.A. No. 660 or R.A. No. 8291 or [must have] previously retired under the applicable retirement laws.118[37] They affirmed Escardas ruling and contended that what the still valid119[38] Teves Retirement Law permits is the creation of an early retirement or financial assistance plan, and the above requirement imposed under the GSIS RFP does not apply to either plans. COA added:

Unmistakably, the Plan being a supplementary pension/retirement plan, it contravenes the Teves law. Not even the renaming of [the] Employees Loyalty Incentive Plan (ELIP) to Retirement Financial Plan (RFP), purportedly to conform with the wording of the law, could conceal its true nature or character as a supplementary pension/retirement plan which incorporates the best features of R.A. Nos. 660 and 8291, creating in effect a third retirement plan for GSIS personnel only. This is all the more made manifest by the fact that even Board members who are not qualified at all to retire under any existing retirement laws could retire under the RFP. Strikingly, by promulgating another regular retirement scheme, the GSIS Board enlarged the field of its authority and regulation as provided in the statute it is supposed to administer.120[39]

COA said that the power of GSIS in applying the law must not be abused. COA averred that GSIS was found to be deficient actuarially by Fifteen Billion Pesos, and for it to reward its employees, who were already enjoying salaries higher than their counterparts in other government agencies, meant that it would have to dip into its principal fund to the prejudice of its members, who were the very raison detre for its establishment.121[40]

Addressing petitioners claim of discrimination, COA said that each of the government agencies that had adopted its own retirement plans did so pursuant to a valid law and under factual circumstances that were not present in the case of GSIS. COA also affirmed the liability of the petitioners who were held

accountable under the disallowances as they had failed to exercise the diligence of a good father of a family in the performance of their functions.122[41] Finally, COA averred that while its general counsels opinion boosted its position, such was not the basis of the disallowance.123[42]

The petitioners sought reconsideration124[43] of this decision and even asked to be heard in oral arguments,125[44] but COA, in its Decision No. 2004004 dated January 27, 2004,126[45] denied both motions and affirmed its Decision No. 2003-062 dated March 18, 2003 with finality.

The petitioners are now before us, asking us to nullify COAs March 18, 2003 and January 27, 2004 decisions, on the ground that they were made with grave abuse of discretion amounting to lack or excess of jurisdiction.127[46]

The petitioners posit the following arguments to support their cause:

RESPONDENTS ACTED WITHOUT OR IN EXCESS OF JURISDICTION, OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION, WHEN IN THE FOLLOWING MANNER:

Respondents sought to interpret clear provisions of Republic Act No. 8291, otherwise known as the GSIS Act of 1997, and declare null and void duly adopted resolutions of petitioner GSIS which has the power and authority to design and adopt the questioned GSIS Retirement Financial Plan (RFP).

II

Respondents ruled that petitioners GSIS officials who are merely implementing the GSIS Act of 1997 and duly adopted Board Resolutions could be held responsible and accountable for the implementation of the GSIS Retirement Financial Plan (RFP).

III

Respondents held that the adoption of the GSIS Retirement Financial Plan (RFP) violated Section 28 (b) of CA No. 186, as amended by Republic Act No. 4968, and Section 41(n) of Republic Act No. 8291, otherwise known as the GSIS Act of 1997.

IV

Respondent[s] disallowed the GSIS Retirement Financial Plan (RFP), and erroneously affirmed the Notices of Disallowance issued by then GSIS Corporate Auditor Dimagiba.

Respondents touched on new and irrelevant matters which were not raised in the disallowances and/or pleadings below, and which were never validated.128[47]

The crux of the present case boils down to the legality of Board Resolution Nos. 360, 326, and 6, which we shall refer to simply as the GSIS RFP, in light of Republic Act No. 8291 or the GSIS Act of 1997, and Commonwealth Act No. 186 or the Government Service Insurance Act as amended by Republic Act No. 4968 (the Teves Retirement Law).

Below are the pertinent provisions of the foregoing laws:

Republic Act No. 8291

SECTION 41. Powers and Functions of the GSIS. The GSIS shall exercise the following powers and functions:

xxxx

(n) to design and adopt an Early Retirement Incentive Plan (ERIP) and/or financial assistance for the purpose of retirement for its own personnel; x x x.

Commonwealth Act No. 186 as amended by the Teves Retirement Law:

SEC. 28. Miscellaneous Provisions x x x

(b) Hereafter no insurance or retirement plan for officers or employees shall be created by any employer. All supplementary retirement or pension plans heretofore in force in any government office, agency, or instrumentality or corporation owned or controlled by the government, are hereby declared inoperative or abolished. x x x. 129[48]

Republic Act No. 4968 or the Teves Retirement Law Is Still Good Law

The petitioners insist that under Section 3 of Republic Act No. 8291, which provides that all laws or any law or parts of law specifically inconsistent herewith are hereby repealed or modified accordingly, all provisions of the Teves Retirement Law that are inconsistent with Republic Act No. 8291 are deemed repealed or modified.130[49]

We do not subscribe to petitioners interpretation of this law. This is because, unless the intention to revoke is clear and manifest, the abrogation or repeal of a law cannot be assumed.131[50] The repealing clause contained in Republic Act No. 8291 is not an express repealing clause because it fails to identify or designate the statutes that are intended to be repealed. It is actually a clause, which predicated the intended repeal upon the condition that a substantial conflict must be found in existing and prior laws.132[51]

Since Republic Act No. 8291 made no express repeal or abrogation of the provisions of Commonwealth Act No. 186 as amended by the Teves Retirement Law, the reliance of the petitioners on its general repealing clause is erroneous. The failure to add a specific repealing clause in Republic Act No. 8291 indicates that the intent was not to repeal any existing law, unless an irreconcilable inconsistency and repugnancy exists in the terms of the new and old laws.133[52]

We are likewise not convinced by petitioners claim of repeal by implication. It is a well-settled rule that to bring about an implied repeal, the two laws must be absolutely incompatible and clearly repugnant that the later law cannot exist without nullifying the prior law.134[53] As this Court held in Recaa, Jr. v. Court of Appeals135[54]:

Repeal of laws should be made clear and expressed. Repeals by implication are not favored as laws are presumed to be passed with deliberation and full knowledge of all laws existing on the subject. Such repeals are not favored for a law cannot be deemed repealed unless it is clearly manifest that the legislature so intended it. x x x.136[55]

This Court sees no incompatibility between the two laws being discussed here. In reconciling Section 41(n) of Republic Act No. 8291 with the Teves Retirement Law, we are guided by this Courts pronouncement in Philippine International Trading Corporation v. Commission on Audit137[56]:

In reconciling Section 6 of Executive Order No. 756 with Section 28, Subsection (b) of Commonwealth Act No. 186, as amended, uppermost in the mind of the Court is the fact that the best method of interpretation is that which makes laws consistent with other laws which are to be harmonized rather than having one considered repealed in favor of the other. Time and again, it has been held that every statute must be so interpreted and brought in accord with other laws as to form a uniform system of jurisprudence interpretere et concordare legibus est optimus interpretendi. Thus, if diverse statutes relate to the same thing, they ought to be taken into consideration in construing any one of them, as it is an established rule of law that all acts in pari materia are to be taken together, as if they were one law. x x x.138[57]

While Republic Act No. 8291 speaks of an early retirement incentive plan or financial assistance for the GSIS employees, Commonwealth Act No. 186 as amended by the Teves Retirement Law talks about insurance or retirement plans

other than our existing retirement laws.

In other words, what the Teves

Retirement Law contemplates and prohibits are separate retirement or insurance plans. In fact, the very same provision declared inoperative or abolished all supplementary retirement or pension plans.

The GSIS Retirement/Financial Plan is Null and Void

It is true that under Section 41(n) of Republic Act No. 8291, GSIS is expressly granted the power to adopt a retirement plan and/or financial assistance for its employees, but a closer look at the provision readily shows that this power is not absolute. It is qualified by the words early, incentive, and for the purpose of retirement. The retirement plan must be an early retirement incentive plan and such early retirement incentive plan or financial assistance must be for the purpose of retirement.

According to Websters Third New International Dictionary, early means occurring before the expected or usual time, while incentive means serving

to encourage, rouse, or move to action, or something that constitutes a motive or spur.139[58]

It is clear from the foregoing that Section 41(n) of Republic Act No. 8291 contemplates a situation wherein GSIS, due to a reorganization, a streamlining of its organization, or some other circumstance, which calls for the termination of some of its employees, must design a plan to encourage, induce, or motivate these employees, who are not yet qualified for either optional or compulsory retirement under our laws, to instead voluntarily retire. This is the very reason why under the law, the retirement plan to be adopted is in reality an incentive scheme to encourage the employees to retire before their retirement age.

The above interpretation applies equally to the phrase financial assistance, which, contrary to the petitioners assertion, should not be read independently of the purpose of an early retirement incentive plan. Under the doctrine of noscitur a sociis, the construction of a particular word or phrase, which is in itself ambiguous, or is equally susceptible of various meanings, may be made clear and specific by considering the company of words in which it is found or with which it is associated. In other words, the obscurity or doubt of the word

or phrase may be reviewed by reference to associated words.140[59] Thus, the phrase financial assistance, in light of the preceding words with which it is associated, should also be construed as an incentive scheme to induce employees to retire early or as an assistance plan to be given to employees retiring earlier than their retirement age.

Such is not the case with the GSIS RFP. Its very objective, *t+o motivate and reward employees for meritorious, faithful, and satisfactory service,141[60] contradicts the nature of an early retirement incentive plan, or a financial assistance plan, which involves a substantial amount that is given to motivate employees to retire early. Instead, it falls exactly within the purpose of a

retirement benefit, which is a form of reward for an employees loyalty and lengthy service,142[61] in order to help him or her enjoy the remaining years of his life.

Furthermore, to be able to apply for the GSIS RFP, one must be qualified to retire under Republic Act No. 660 or Republic Act No. 8291, or must have previously retired under our existing retirement laws. This only means that the employees covered by the GSIS RFP were those who were already eligible to retire or had already retired. Certainly, this is not included in the scope of an early retirement incentive plan or financial assistance for the purpose of retirement.

The fact that GSIS changed the name from Employees Loyalty Incentive Plan to Retirement/Financial Plan does not change its essential nature. A perusal of the plan shows that its purpose is not to encourage GSISs employees to retire before their retirement age, but to augment the retirement benefits they would receive under our present laws. 143[62] Without a doubt, the GSIS RFP is a supplementary retirement plan, which is prohibited by the Teves Retirement Law.

Conte v. Commission on Audit144[63] squarely applies in this case. In that case, the Social Security System (SSS) issued Resolution No. 56, which provided financial incentive and inducement to SSS employees who were qualified to

retire, to avail of retirement benefits under Republic Act No. 660, as amended (which GSIS would have to pay), rather than the retirement benefits under Republic Act No. 1616, as amended (which SSS would have to pay). Under SSS Resolution No. 56, those who retire under Republic Act No. 660 would be given a financial assistance equivalent in amount to the difference between what a retiree would have received under Republic Act No. 1616, less what he was entitled to under Republic Act No. 660. COA disallowed in audit all claims for financial assistance under SSS Resolution No. 56 for being similar to those separate retirement plans or incentive/separation pay plans adopted by other government corporate agencies, which resulted in the increase of benefits beyond what was allowed under existing retirement laws. This Court sustained COAs disallowance and held that SSS Resolution No. 56 constituted a supplementary retirement plan proscribed by Section 28(b) of Commonwealth Act No. 186, as amended by Republic Act No. 4968. 145[64]

The petitioners argue that Conte finds no application in this case, since SSS had no authority under its charter to adopt such a resolution, unlike the GSIS, which was cloaked with authority to issue the questioned resolutions. Furthermore, petitioners argue that Republic Act No. 8291 became effective in 1997, which was after this Court had already decided the Conte case.

We find no merit in the petitioners arguments.

The laws have not

changed, and the doctrine in Conte has not been overturned or abandoned. The fact that Republic Act No. 8291 was approved and enacted after Conte is of no moment, as what was interpreted in Conte was the provision in the Teves Retirement Law in issue here. Moreover, we have already discussed above how such provision has neither been repealed nor modified by Section 41(n) of Republic Act No. 8291. Thus, it is just fitting that we find guidance in the application and interpretation of Section 28(b) of Commonwealth Act No. 186, as amended by Republic Act No. 4968, from the Conte case.

As we have held in that case:

Section 28(b) [of C.A. No. 186] as amended by R.A. No. 4968 in no uncertain terms bars the creation of any insurance or retirement plan other than the GSIS for government officers and employees, in order to prevent the undue and inequitous proliferation of such plans. x x x.146[65]

The petitioners asseverate that many laws such as Republic Act Nos. 8291, 1161, 8282, 6683, and 7641, were validly enacted after the Teves Retirement Law; thus, the evil that it seeks to avoid is the proliferation of those retirement plans

that are not so authorized by law.147[66] The petitioners even go so far as comparing themselves to other government agencies, which have adopted their own retirement schemes at one time or another such as the Development Bank of the Philippines, the Securities and Exchange Commission, the National Power Corporation, the COA, the Court of Appeals, and even this Court.148[67]

The petitioners themselves admit that those retirement schemes were adopted as a *one-time+ grant *by+ reason of reorganization149[68] pursuant to Republic Act No. 6683150[69] or the Early Retirement Law. As for the additional benefits extended to retiring justices or commissioners, suffice it to say that they were also given pursuant to laws passed by Congress. Moreover, those

retirement plans enjoy the presumption of validity and regularity.

In stark contrast, the GSIS RFP was not created because of a valid company reorganization. Its purpose did not include the granting of benefits for early retirement. Neither did it provide benefits for either voluntary or involuntary separation from GSIS. It was intended for employees who were already eligible to retire under existing retirement laws. While the GSIS may have been clothed with authority to adopt an early retirement or financial assistance plan, such authority was limited by the very law it was seeking to implement.

Borrowing this Courts words in the Conte case, it is beyond cavil that *the GSIS Retirement/Financial Plan] contravenes [Section 28(b) of C.A. No. 186 as amended by R.A. No. 4968 or the Teves Retirement Law], and is therefore invalid, void, and of no effect. To ignore this and rule otherwise would be tantamount to permitting every other government office or agency to put up its own supplementary retirement benefit plan under the guise of such financial assistance.151[70]

Another compelling reason to nullify the GSIS RFP is that it allows, and in fact mandates, the inclusion of the years in government service of previously retired employees, to wit:

PROCEDURE:

x xxx

4.

Government service of previously retired employees shall be considered in computing the loyalty incentive.152[71]

In Santos v. Court of Appeals,153[72] we affirmed the Court of Appeals and the Civil Service Commissions ruling that for the purpose of computing or determining Santos separation pay, his years of service in his previous government office should be excluded and his separation pay should be solely confined to his services in his new government position. We gave the rationale for this as follows:

Such would run counter to the policy of this Court against double compensation for exactly the same services. More important, it would be in violation of the first paragraph of Section 8 of Article IX-B of the Constitution, which proscribes additional, double, or indirect compensation. Said provision reads:

No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law .154[73]

Our ruling therein is likewise applicable in this case. To credit the years of service of GSIS retirees in their previous government office into the computation of their retirement benefits under the GSIS RFP, notwithstanding the fact that they had received or had been receiving the retirement benefits under the applicable retirement law they retired in, would be to countenance double compensation for exactly the same services.155[74]

To emphasize COAs distaste156[75] for the huge retirement benefits of GSISs board members, officers, and employees, who are already receiving significantly higher salaries than their counterparts in other government agencies, COA illustrated the glaring discrepancy between what a GSIS employee would get under the GSIS RFP, and what a mere GSIS member would get under applicable retirement laws:

GSIS EMPLOYEE vs GSIS MEMBER not covered by [GSIS RFP]

GSIS EMPLOYEE GSIS Vice-President 46.36895 110,775.00 65 years old August 21, 2001 April 8, 1954 April 8, 1954

SALARY GRADE 27 Length of Service Basic Salary Age at Retirement Date of Retirement First Day in Govt Service First Day in GSIS/Other office

GSIS MEMBER Director III 46.36895 25,223.00 65 years old August 21, 2001 April 8, 1954 April 8, 1954

BENEFITS UNDER DIFFERENT MODES OF RETIREMENT

[GSIS RFP]

[GSIS Employee] RA 1616 RA 660

[GSIS RFP] CGS GA 5YLS BMP RRP N/A

[GSIS Member] RA 1616

RA 660

90.92238 67.7379 46.36895 10,071,926.00 7,503,665.87 NONE 3,176,380.80 52,939.68 NONE with refund NONE

67.7379 1,708,553.05

with refund

46.36895 NONE 1,210,704.00 20,178.40 NONE

*[GSIS RFP] less 5YLS = FINANCIAL ASSISTANCE plus MP of 52,939.68 after five years = 6,895,545.20 Financial Assistance + Monthly Pension after five years

* *

CGS - Creditable Government Service GA - Gratuity Amount Payable by Employer

* * *

5YLS - Five (5) Year Lump Sum Payable by GSIS BMP - Basic Monthly Pension RRP - Refund of Retirement Premiums157[76]

With the above illustration, it can be readily seen and understood why the Teves Retirement Law prohibits the proliferation of additional retirement plans in our government offices. While it is true that a better compensation package will not only attract more competent and capable individuals to work in GSIS, but will also ensure that they remain loyal and faithful therein, this has already been addressed by the GSIS employees exemption from Republic Act No. 678 or the Salary Standardization Law (SSL), under Sec. 43(d) of Republic Act No. 8291. As shown in the above tables, the salary of a GSIS employee is much higher compared to his counterpart in another government agency. This remains to be true even with the recent increase of the salaries in the SSL.

The petitioners also question COAs authority to nullify the resolutions involved in this case. It must be remembered that none of the COA decisions nullified the Board Resolutions adopted by GSISs Board of Trustees. What the COA decisions affirmed were the disallowances made by GSISs own Corporate Auditor, Dimagiba. It is irrelevant that COA, in its decisions, touched upon issues

not brought before it, or that it referred to its general counsels opinion on the GSIS RFP, as these were done only to reinforce COAs position. They have no bearing upon the weight of COAs decisions, which are based upon our existing laws and jurisprudence.

As for Dimagiba, while she may have relied on the opinion of COAs legal counsel to support the disallowances she had made, it is worthy to note that she had already informed Garcia of the GSIS RFPs illegality even before she sought COAs opinion on the matter. Moreover, neither Dimagibas nor COAs

confidence in the opinion of COAs general counsel could be faulted, as under Presidential Decree No. 1445, or the Government Auditing Code of the Philippines, one of the responsibilities of COAs legal office is to interpret pertinent laws and auditing rules and regulations, to wit:

SECTION 11. The Legal Office. The Legal Office shall be charged with the following responsibilities:

(1) Perform advisory and consultative functions and render legal services with respect to the performance of the functions of the Commission and the interpretation of pertinent laws and auditing rules and regulations; x x x.

In view of the above, we can hardly impute grave abuse of discretion amounting to lack or excess of jurisdiction on the part of respondents COA, Escarda, and Dimagiba, for disallowing in audit the portion of retirement benefits in excess of what is allowed under our existing retirement laws. On the contrary, they acted with caution, diligence, and vigilance in the exercise of their duties, especially since what was involved were huge amounts of money imbued with public interest, since GSISs funds come from the contributions of its members. Thus, GSISs business is to keep in trust the money belonging to its members,158[77] who are not limited to its own employees.

The Payees are Liable for the Return of the Disallowed Benefits Under the GSIS RFP

The petitioners claim that GSISs Board of Trustees cannot be held liable as they were acting pursuant to a valid law when they adopted the GSIS RFP. The petitioners also argue that the implementation of the GSIS RFP was merely ministerial, thus the GSIS officers held accountable under the Notices of

Disallowance should not be held responsible and accountable for the allocation and release of the benefits under the GSIS RFP.

This Court agrees that only the payees should be held liable for the return of the disallowed amounts under the GSIS RFP.

Although it is true that as early as December 2000,159[78] Dimagiba already questioned the legality of the GSIS RFP, it was only in August 2001 when GSIS received COAs opinion on the matter. Moreover, COA first decided the issue only in 2002.

While the Board of Trustees believed they had the authority and power to adopt the GSIS RFP, the officers on the other hand believed that they were implementing a valid resolution. As we said in Buscaino v. Commission on

Audit,160[79] the resolution of the Board of Trustees was sufficient basis for the

disbursement, and it is beyond these officers competence to pass upon the validity of such board resolutions.161[80]

On account of the GSIS RFPs doubtful validity, the petitioners should have exercised prudence and held in abeyance the disbursement of the portion of retirement benefits under the GSIS RFP until the issue of its legality had been resolved.

However, the Board of Trustees and the officers held accountable under the Notices of Disallowance should not be held liable as they are entitled to the presumption of having exercised their functions with regularity and in good faith.

WHEREFORE, the petition is PARTIALLY GRANTED. The assailed Decisions of the Commission on Audit Nos. 2003-062 and 2004-004 dated March 18, 2003 and January 27, 2004, are AFFIRMED with the MODIFICATION that only the payees of the disbursements made under the GSIS RFP in the Notices of Disallowance are liable for such disbursements. Board Resolution Nos. 326, 360, and 6 are declared ILLEGAL, VOID, and OF NO EFFECT.

SO ORDERED.