A.M. No. RTJ-08-2126 [Formerly OCA I.P.I. No.

08-2896-RTJ]
January 20, 2009
ATTY. ERNESTO A. TABUJARA III, Complainant vs. JUDGE FATIMA
GONZALES-ASDALA, Respondent.
Abuse of contempt power
SC found the respondent guilty of gross ignorance of law and
procedure.

1. As found by the CA, respondent judge gravely abused her discretion

when she acted on the Urgent Ex-Parte Motion to Order Respondent to
Comply with the Writ of Habeas Corpus with Urgent Motion For Partial
Reconsideration (Of the Order dated May 31, 2006). That Judge Bay
may have left the court premises in the afternoon of May 31, 2006 did
not justify her acting on even date on motion of complainant’s wife, as
her authority as pairing judge commenced only the following day, June
1, 2006, when Judge Bay’s leave of absence started; Nor did
respondent’s opinion on the urgency of the case justify her sacrificing
law and settled jurisprudence for the sake of expediency.

2. Respondent also abused her contempt powers. If at all, complainant

was guilty of indirect contempt. Indirect or constructive contempt is
committed “outside of the sitting of the court and may include
misbehavior of an officer of the court in the performance of his official
duties or in his official transactions, disobedience of or resistance to a
lawful writ, process, order, judgment, or command of a court, or
injunction granted by a court or a judge, any abuse or any unlawful
interference with the process or proceedings of a court not constituting
direct contempt, or any improper conduct tending directly or indirectly
to impede, obstruct or degrade the administration of justice.”

3. For not affording complainant the opportunity to explain why he

should not be cited in contempt, she blatantly disregarded Rule 71 of
the Rules of Court. In Lim v. Domagas where the therein judge
declared the therein complainant guilty of contempt and ordered his
arrest for failure to bring three minors before the court without the
benefit of a hearing, the Court faulted the therein judge not only for
grave abuse of discretion but also for gross ignorance of the law.

G.R. No. 170745 January 30, 2009

GERARDA A. DIZON-ABILLA and the HEIRS OF RONALDO P. ABILLA,
Petitioners, vs SPS. CARLOS and THERESITA GOBONSENG, Respondents.
Every litigation must necessarily come to an end. Access to courts is guaranteed, but once
a litigant’s right has been adjudicated in a valid final judgment of a competent court, he
should not be granted an unbridled license to go back for another try. The prevailing
party should not be harassed by subsequent suits. For, if endless litigations were to be
encouraged, unscrupulous litigations would multiply in number to the detriment of the
administration of justice.

G.R. No. 178242 January 20, 2009

HEIRS OF NORBERTO J. QUISUMBING, petitioners vs PHILIPPINE

NATIONAL BANK and SANTIAGO LAND DEVELOPMENT
CORPORATION, respondents

G.R. No. 164856 January 20, 2009

JUANITO A. GARCIA and ALBERTO J. DUMAGO, Petitioners, vs PHILIPPINE

AIRLINES, INC., Respondent.

(Labor law - refund doctrine)

The view as maintained in a number of cases is that:

Even if the order of reinstatement of the Labor Arbiter is reversed on appeal,
it is obligatory on the part of the employer to reinstate and pay the wages of
the dismissed employee during the period of appeal until reversal by the
higher court. On the other hand, if the employee has been reinstated during
the appeal period and such reinstatement order is reversed with finality, the
employee is not required to reimburse whatever salary he received for he is
entitled to such, more so if he actually rendered services during the period.

In other words, a dismissed employee whose case was favorably decided by

the Labor Arbiter is entitled to receive wages pending appeal upon
reinstatement, which is immediately executory. Unless there is a restraining
order, it is ministerial upon the Labor Arbiter to implement the order of
reinstatement and it is mandatory on the employer to comply therewith.

The opposite view is articulated in Genuino which states:

 If the decision of the labor arbiter is later reversed on appeal upon the
finding that the ground for dismissal is valid, then the employer has the
right to require the dismissed employee on payroll reinstatement to
refund the salaries s/he received while the case was pending appeal, or it
can be deducted from the accrued benefits that the dismissed employee was
entitled to receive from his/her employer under existing laws, collective
bargaining agreement provisions, and company practices. However, if the
employee was reinstated to work during the pendency of the appeal, then the
employee is entitled to the compensation received for actual services
rendered without need of refund.

It has thus been advanced that there is no point in releasing the wages to petitioners
since their dismissal was found to be valid, and to do so would constitute unjust
enrichment.

The social justice principles of labor law outweigh or render inapplicable the
civil law doctrine of unjust enrichment espoused by Justice Presbitero Velasco, Jr.
in his Separate Opinion. The constitutional and statutory precepts portray the otherwise
“unjust” situation as a condition affording full protection to labor.

Even outside the theoretical trappings of the discussion and into the mundane
realities of human experience, the “refund doctrine” easily demonstrates how a favorable
decision by the Labor Arbiter could harm, more than help, a dismissed employee. The
employee, to make both ends meet, would necessarily have to use up the salaries received
during the pendency of the appeal, only to end up having to refund the sum in case of a
final unfavorable decision. It is mirage of a stop-gap leading the employee to a risky cliff
of insolvency.

Advisably, the sum is better left unspent. It becomes more logical and practical for
the employee to refuse payroll reinstatement and simply find work elsewhere in the
interim, if any is available. Notably, the option of payroll reinstatement belongs to the
employer, even if the employee is able and raring to return to work. Prior to Genuino, it
is unthinkable for one to refuse payroll reinstatement. In the face of the grim
possibilities, the rise of concerned employees declining payroll reinstatement is on the
horizon.

Further, the Genuino ruling not only disregards the social justice principles behind
the rule, but also institutes a scheme unduly favorable to management. Under such
scheme, the salaries dispensed pendente lite merely serve as a bond posted in installment
by the employer. For in the event of a reversal of the Labor Arbiter’s decision ordering
reinstatement, the employer gets back the same amount without having to spend
ordinarily for bond premiums. This circumvents, if not directly contradicts, the
proscription that the “posting of a bond [even a cash bond] by the employer shall not stay
the execution for reinstatement.”

In playing down the stray posture in Genuino requiring the dismissed employee on
payroll reinstatement to refund the salaries in case a final decision upholds the validity of
the dismissal, the Court realigns the proper course of the prevailing doctrine on
reinstatement pending appeal vis-à-vis the effect of a reversal on appeal.

Amplification of the Second Ground

Reinstatement pending appeal necessitates its immediate execution during the

pendency of the appeal, if the law is to serve its noble purpose. At the same time, any
attempt on the part of the employer to evade or delay its execution should not be
countenanced.

After the labor arbiter’s decision is reversed by a higher tribunal, the

employee may be barred from collecting the accrued wages, if it is shown that the
delay in enforcing the reinstatement pending appeal was without fault on the part of
the employer.

The test is two-fold: (1) there must be actual delay or the fact that the order of
reinstatement pending appeal was not executed prior to its reversal; and (2) the delay
must not be due to the employer’s unjustified act or omission. If the delay is due to the
employer’s unjustified refusal, the employer may still be required to pay the salaries
notwithstanding the reversal of the Labor Arbiter’s decision.

The new NLRC Rules of Procedure, which took effect on January 7, 2006, now
require the employer to submit a report of compliance within 10 calendar days from
receipt of the Labor Arbiter’s decision, disobedience to which clearly denotes a refusal to
reinstate. The employee need not file a motion for the issuance of the writ of execution
since the Labor Arbiter shall thereafter motu proprio issue the writ. With the new rules in
place, there is hardly any difficulty in determining the employer’s intransigence in
immediately complying with the order.

G.R. No. 177026 January 30, 2009

LUNESA O. LANSANGAN AND ROCITA CENDAÑA, Petitioners, vs. AMKOR
TECHNOLOGY PHILIPPINES, INC., Respondent.
 Roquero, as well as Article 223 of the Labor Code, finds no application in
the present case.

Article 223 concerns itself with an interim relief, granted to a dismissed or

separated employee while the case for illegal dismissal is pending appeal, as what
happened in Roquero. It does not apply where there is no finding of illegal
dismissal, as in the present case.

The Arbiter found petitioners’ dismissal to be valid. Such finding had, as

stated earlier, become final, petitioners not having appealed it. Following Article
279 which provides:

In cases of regular employment, the employer shall not terminate the

services of an employee except for a just cause or when authorized by this Title.
An employee who is unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and other privileges and to his full
backwages, inclusive of allowances, and to his other benefits or their monetary
equivalent computed from the time his compensation was withheld from him up
to the time of his actual reinstatement

Petitioners are not entitled to full backwages as their dismissal was not found to be
illegal. Agabon v. NLRC so states –– payment of backwages and other benefits is
justified only if the employee was unjustly dismissed.

G.R. No. 178188 May 8, 2009

OLYMPIC MINES AND DEVELOPMENT CORP., Petitioner, vs. COURT OF
APPEALS and POLLY C. DY,

G.R. No. 178524 January 30, 2009

PANFILO MACASERO, Petitioner, vs. SOUTHERN INDUSTRIAL
GASES PHILIPPINES and/or NEIL LINDSAY, Respondents.
 In illegal dismissal cases, the onus of proving that the employee was not
dismissed or, if dismissed, that the dismissal was not illegal, rests on the
employer, failure to discharge which would mean that the dismissal is not
justified and, therefore, illegal.

Indeed, a party alleging a critical fact must support his allegation with
substantial evidence, for any decision based on unsubstantiated allegation
cannot stand without offending due process.

separation pay may avail in lieu of reinstatement if reinstatement is no longer practical

or in the best interest of the parties

While both labor tribunals and the appellate court held that petitioner failed
to prove the fact of his dismissal, they oddly ordered the award of separation pay in
lieu of reinstatement in light of respondent company’s “firm stance that petitioner
was not its employee vis a vis the unflinching assertion of petitioner that he was
which does not create a fertile ground for reinstatement.” It goes without saying
that the award of separation pay is inconsistent with a finding that there was no
illegal dismissal, for under Article 279 of the Labor Code and as held in a catena of
cases, an employee who is dismissed without just cause and without due process is
entitled to backwages and reinstatement or payment of separation pay in lieu
thereof:

Thus, an illegally dismissed employee is entitled to two reliefs: backwages

and reinstatement. The two reliefs provided are separate and distinct. In instances
where reinstatement is no longer feasible because of strained relations between
the employee and the employer, separation pay is granted. In effect, an illegally
dismissed employee is entitled to either reinstatement, if viable, or separation pay
if reinstatement is no longer viable, and backwages.

The normal consequences of respondents’ illegal dismissal, then, are

reinstatement without loss of seniority rights, and payment of backwages
computed from the time compensation was withheld up to the date of actual
reinstatement. Where reinstatement is no longer viable as an option,
separation pay equivalent to one (1) month salary for every year of service
should be awarded as an alternative. The payment of separation pay is in
addition to payment of backwages. (Emphasis and underscoring supplied)

G.R. No. 174372 January 20, 2009

PEOPLE OF THE PHILIPPINES, Appellee, vs. ELPIDIO ANTONIO, Appellant.
Affidavit of Desistance

It bears noting that the affidavit of desistance was presented after the judgment of
conviction by the trial court was promulgated which, as a rule, the Court frowns upon.

For AAA’s supposed Affidavit of Desistance to warrant a new trial, it must deny
the truth of her complaint, not merely seek the withdrawal of appellant’s prosecution. Her
statement that there is no sufficient basis for her father to be convicted of rape and it is
unjust to convict her father and let him suffer is just a legal conclusion.

G.R. No. 175836 January 30, 2009

PEOPLE OF THE PHILIPPINES, Appellee, vs. RUBEN CORPUZ y SIMON,
Appellant.

Appellant’s “sweetheart” theory, being an affirmative defense, must be established

by convincing evidence — some documentary and/or other evidence like mementos, love
letters, notes, photographs and the like. Other than appellant’s testimony, however, no
convincing evidence was presented to substantiate his theory.

IThe effects of threats and intimidation aside, appellant being the common-law
spouse of AAA’s mother BBB, moral ascendancy substituted for intimidation. Indeed, in
rape committed by a close kin, such as the victim's father, stepfather, uncle, or the
common-law spouse of her mother, it is not necessary that actual force or intimidation be
employed; moral influence or ascendancy takes the place of violence or intimidation.

Simple rape

As for the appellate court’s characterization of the crime as simple rape, the Court
finds the same to be consistent with Article 266-B of the Revised Penal Code and settled
jurisprudence that, to obtain a conviction for qualified rape, the minority of the victim and
her relationship to the offender must be both alleged in the Information and proved with
certainty. In the present cases, AAA’s minority was alleged and proved, the same
having been averred in each of the Informations and proven by a certification from the
Office of the Civil Registrar of Kabugao, Apayao as to AAA’s date of birth.

The stepfather-stepdaughter relationship as a qualifying circumstance presupposes

that the victim’s mother and the accused contracted marriage. The prosecution,
however, did not present proof that BBB and appellant did contract marriage. What
appellant claimed is that he and BBB are merely common-law spouses, which could also
qualify the offense but only if the same is alleged in each of the Informations and proven
at the trial. The appellate court thus correctly held that appellant committed six (6)
counts of simple rape.