Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-25291 January 30, 1971

THE INSULAR LIFE ASSURANCE CO., LTD., EMPLOYEES ASSOCIATION-NATU, FGU

INSURANCE GROUP WORKERS and EMPLOYEES ASSOCIATION-NATU, and INSULAR LIFE
BUILDING EMPLOYEES ASSOCIATION-NATU, petitioners,
vs.
THE INSULAR LIFE ASSURANCE CO., LTD., FGU INSURANCE GROUP, JOSE M. OLBES and
COURT OF INDUSTRIAL RELATIONS, respondents.

Lacsina, Lontok and Perez and Luis F. Aquino for petitioners.

Francisco de los Reyes for respondent Court of Industrial Relations.

Araneta, Mendoza and Papa for other respondents.

CASTRO, J.:

Appeal, by certeriorari to review a decision and a resolution en banc of the Court of Industrial
Relations dated August 17, 1965 and October 20, 1965, respectively, in Case 1698-ULP.

The Insular Life Assurance Co., Ltd., Employees Association-NATU, FGU Insurance Group Workers
& Employees Association-NATU, and Insular Life Building Employees Association-NATU
(hereinafter referred to as the Unions), while still members of the Federation of Free Workers (FFW),
entered into separate collective bargaining agreements with the Insular Life Assurance Co., Ltd. and
the FGU Insurance Group (hereinafter referred to as the Companies).

Two of the lawyers of the Unions then were Felipe Enaje and Ramon Garcia; the latter was formerly
the secretary-treasurer of the FFW and acting president of the Insular Life/FGU unions and the
Insular Life Building Employees Association. Garcia, as such acting president, in a circular issued in
his name and signed by him, tried to dissuade the members of the Unions from disaffiliating with the
FFW and joining the National Association of Trade Unions (NATU), to no avail.

Enaje and Garcia soon left the FFW and secured employment with the Anti-Dummy Board of the
Department of Justice. Thereafter, the Companies hired Garcia in the latter part of 1956 as assistant
corporate secretary and legal assistant in their Legal Department, and he was soon receiving P900 a
month, or P600 more than he was receiving from the FFW. Enaje was hired on or about February
19, 1957 as personnel manager of the Companies, and was likewise made chairman of the
negotiating panel for the Companies in the collective bargaining with the Unions.

In a letter dated September 16, 1957, the Unions jointly submitted proposals to the Companies for a
modified renewal of their respective collective bargaining contracts which were then due to expire on
September 30, 1957. The parties mutually agreed and to make whatever benefits could be agreed
upon retroactively effective October 1, 1957.

Thereafter, in the months of September and October 1957 negotiations were conducted on the
Union's proposals, but these were snagged by a deadlock on the issue of union shop, as a result of
which the Unions filed on January 27, 1958 a notice of strike for "deadlock on collective bargaining."
Several conciliation conferences were held under the auspices of the Department of Labor wherein
the conciliators urged the Companies to make reply to the Unions' proposals en toto so that the said
Unions might consider the feasibility of dropping their demand for union security in exchange for
other benefits. However, the Companies did not make any counter-proposals but, instead, insisted
that the Unions first drop their demand for union security, promising money benefits if this was done.
Thereupon, and prior to April 15, 1958, the petitioner Insular Life Building Employees Association-
NATU dropped this particular demand, and requested the Companies to answer its demands, point
by point, en toto. But the respondent Insular Life Assurance Co. still refused to make any counter-
proposals. In a letter addressed to the two other Unions by the joint management of the Companies,
the former were also asked to drop their union security demand, otherwise the Companies "would no
longer consider themselves bound by the commitment to make money benefits retroactive to
October 1, 1957." By a letter dated April 17, 1958, the remaining two petitioner unions likewise
dropped their demand for union shop. April 25, 1958 then was set by the parties to meet and discuss
the remaining demands.

From April 25 to May 6, 1958, the parties negotiated on the labor demands but with no satisfactory
result due to a stalemate on the matter of salary increases. On May 13, 1958 the Unions demanded
from the Companies final counter-proposals on their economic demands, particularly on salary
increases. Instead of giving counter-proposals, the Companies on May 15, 1958 presented facts and
figures and requested the Unions to submit a workable formula which would justify their own
proposals, taking into account the financial position of the former. Forthwith the Unions voted to
declare a strike in protest against what they considered the Companies' unfair labor practices.

Meanwhile, eighty-seven (87) unionists were reclassified as supervisors without increase in salary
nor in responsibility while negotiations were going on in the Department of Labor after the notice to
strike was served on the Companies. These employees resigned from the Unions.

On May 20, 1958 the Unions went on strike and picketed the offices of the Insular Life Building at
Plaza Moraga.

On May 21, 1958 the Companies through their acting manager and president, the respondent Jose
M. Olbes (hereinafter referred to as the respondent Olbes), sent to each of the strikers a letter
(exhibit A) quoted verbatim as follows:

We recognize it is your privilege both to strike and to conduct picketing.

However, if any of you would like to come back to work voluntarily, you may:

1. Advise the nearest police officer or security guard of your intention to do so.

2. Take your meals within the office.

3. Make a choice whether to go home at the end of the day or to sleep nights at the
office where comfortable cots have been prepared.
 4. Enjoy free coffee and occasional movies.

5. Be paid overtime for work performed in excess of eight hours.

6. Be sure arrangements will be made for your families.

The decision to make is yours whether you still believe in the motives of the strike
or in the fairness of the Management.

The Unions, however, continued on strike, with the exception of a few unionists who were convinced
to desist by the aforesaid letter of May 21, 1958.

From the date the strike was called on May 21, 1958, until it was called off on May 31, 1958, some
management men tried to break thru the Unions' picket lines. Thus, on May 21, 1958 Garcia,
assistant corporate secretary, and Vicente Abella, chief of the personnel records section,
respectively of the Companies, tried to penetrate the picket lines in front of the Insular Life Building.
Garcia, upon approaching the picket line, tossed aside the placard of a picketer, one Paulino Bugay;
a fight ensued between them, in which both suffered injuries. The Companies organized three bus-
loads of employees, including a photographer, who with the said respondent Olbes, succeeded in
penetrating the picket lines in front of the Insular Life Building, thus causing injuries to the picketers
and also to the strike-breakers due to the resistance offered by some picketers.

Alleging that some non-strikers were injured and with the use of photographs as evidence, the
Companies then filed criminal charges against the strikers with the City Fiscal's Office of Manila.
During the pendency of the said cases in the fiscal's office, the Companies likewise filed a petition
for injunction with damages with the Court of First Instance of Manila which, on the basis of the
pendency of the various criminal cases against striking members of the Unions, issued on May 31,
1958 an order restraining the strikers, until further orders of the said court, from stopping, impeding,
obstructing, etc. the free and peaceful use of the Companies' gates, entrance and driveway and the
free movement of persons and vehicles to and from, out and in, of the Companies' building.

On the same date, the Companies, again through the respondent Olbes, sent individually to the
strikers a letter (exhibit B), quoted hereunder in its entirety:

The first day of the strike was last 21 May 1958.

Our position remains unchanged and the strike has made us even more convinced of
our decision.

We do not know how long you intend to stay out, but we cannot hold your positions
open for long. We have continued to operate and will continue to do so with or
without you.

If you are still interested in continuing in the employ of the Group Companies, and if
there are no criminal charges pending against you, we are giving you until 2 June
1958 to report for work at the home office. If by this date you have not yet reported,
we may be forced to obtain your replacement.

Before, the decisions was yours to make.

So it is now.
Incidentally, all of the more than 120 criminal charges filed against the members of the Unions,
except three (3), were dismissed by the fiscal's office and by the courts. These three cases involved
"slight physical injuries" against one striker and "light coercion" against two others.

At any rate, because of the issuance of the writ of preliminary injunction against them as well as the
ultimatum of the Companies giving them until June 2, 1958 to return to their jobs or else be replaced,
the striking employees decided to call off their strike and to report back to work on June 2, 1958.

However, before readmitting the strikers, the Companies required them not only to secure
clearances from the City Fiscal's Office of Manila but also to be screened by a management
committee among the members of which were Enage and Garcia. The screening committee initially
rejected 83 strikers with pending criminal charges. However, all non-strikers with pending criminal
charges which arose from the breakthrough incident were readmitted immediately by the Companies
without being required to secure clearances from the fiscal's office. Subsequently, when practically
all the strikers had secured clearances from the fiscal's office, the Companies readmitted only some
but adamantly refused readmission to 34 officials and members of the Unions who were most active
in the strike, on the ground that they committed "acts inimical to the interest of the respondents,"
without however stating the specific acts allegedly committed. Among those who were refused
readmission are Emiliano Tabasondra, vice president of the Insular Life Building Employees'
Association-NATU; Florencio Ibarra, president of the FGU Insurance Group Workers & Employees
Association-NATU; and Isagani Du Timbol, acting president of the Insular Life Assurance Co., Ltd.
Employees Association-NATU. Some 24 of the above number were ultimately notified months later
that they were being dismissed retroactively as of June 2, 1958 and given separation pay checks
computed under Rep. Act 1787, while others (ten in number) up to now have not been readmitted
although there have been no formal dismissal notices given to them.

On July 29, 1958 the CIR prosecutor filed a complaint for unfair labor practice against the
Companies under Republic Act 875. The complaint specifically charged the Companies with (1)
interfering with the members of the Unions in the exercise of their right to concerted action, by
sending out individual letters to them urging them to abandon their strike and return to work, with a
promise of comfortable cots, free coffee and movies, and paid overtime, and, subsequently, by
warning them that if they did not return to work on or before June 2, 1958, they might be replaced;
and (2) discriminating against the members of the Unions as regards readmission to work after the
strike on the basis of their union membership and degree of participation in the strike.

On August 4, 1958 the Companies filed their answer denying all the material allegations of the
complaint, stating special defenses therein, and asking for the dismissal of the complaint.

After trial on the merits, the Court of Industrial Relations, through Presiding Judge Arsenio Martinez,
rendered on August 17, 1965 a decision dismissing the Unions' complaint for lack of merit. On
August 31, 1965 the Unions seasonably filed their motion for reconsideration of the said decision,
and their supporting memorandum on September 10, 1965. This was denied by the Court of
Industrial Relations en banc in a resolution promulgated on October 20, 1965.

Hence, this petition for review, the Unions contending that the lower court erred:

1. In not finding the Companies guilty of unfair labor practice in sending out
individually to the strikers the letters marked Exhibits A and B;

2. In not finding the Companies guilty of unfair labor practice for discriminating
against the striking members of the Unions in the matter of readmission of
employees after the strike;
 3. In not finding the Companies guilty of unfair labor practice for dismissing officials
and members of the Unions without giving them the benefit of investigation and the
opportunity to present their side in regard to activities undertaken by them in the
legitimate exercise of their right to strike; and

4. In not ordering the reinstatement of officials and members of the Unions, with full
back wages, from June 2, 1958 to the date of their actual reinstatement to their usual
employment.

I. The respondents contend that the sending of the letters, exhibits A and B, constituted a legitimate
exercise of their freedom of speech. We do not agree. The said letters were directed to the striking
employees individually by registered special delivery mail at that without being coursed
through the Unions which were representing the employees in the collective bargaining.

The act of an employer in notifying absent employees individually during a strike

following unproductive efforts at collective bargaining that the plant would be
operated the next day and that their jobs were open for them should they want to
come in has been held to be an unfair labor practice, as an active interference with
the right of collective bargaining through dealing with the employees individually
instead of through their collective bargaining representatives. (31 Am. Jur.
563, citing NLRB v. Montgomery Ward & Co. [CA 9th] 133 F2d 676, 146 ALR 1045)

Indeed, it is an unfair labor practice for an employer operating under a collective bargaining
agreement to negotiate or to attempt to negotiate with his employees individually in connection with
changes in the agreement. And the basis of the prohibition regarding individual bargaining with the
strikers is that although the union is on strike, the employer is still under obligation to bargain with
the union as the employees' bargaining representative (Melo Photo Supply Corporation vs. National
Labor Relations Board, 321 U.S. 332).

Indeed, some such similar actions are illegal as constituting unwarranted acts of interference. Thus,
the act of a company president in writing letters to the strikers, urging their return to work on terms
inconsistent with their union membership, was adjudged as constituting interference with the
exercise of his employees' right to collective bargaining (Lighter Publishing, CCA 7th, 133 F2d 621).
It is likewise an act of interference for the employer to send a letter to all employees notifying them to
return to work at a time specified therein, otherwise new employees would be engaged to perform
their jobs. Individual solicitation of the employees or visiting their homes, with the employer or his
representative urging the employees to cease union activity or cease striking, constitutes unfair labor
practice. All the above-detailed activities are unfair labor practices because they tend to undermine
the concerted activity of the employees, an activity to which they are entitled free from the
employer's molestation.1

Moreover, since exhibit A is a letter containing promises of benefits to the employees in order to
entice them to return to work, it is not protected by the free speech provisions of the Constitution
(NLRB v. Clearfield Cheese Co., Inc., 213 F2d 70). The same is true with exhibit B since it contained
threats to obtain replacements for the striking employees in the event they did not report for work on
June 2, 1958. The free speech protection under the Constitution is inapplicable where the
expression of opinion by the employer or his agent contains a promise of benefit, or threats, or
reprisal (31 Am. Jur. 544; NLRB vs. Clearfield Cheese Co., Inc., 213 F2d 70; NLRB vs. Goigy Co.,
211 F2d 533, 35 ALR 2d 422).

Indeed, when the respondents offered reinstatement and attempted to "bribe" the strikers with
"comfortable cots," "free coffee and occasional movies," "overtime" pay for "work performed in
excess of eight hours," and "arrangements" for their families, so they would abandon the strike and
return to work, they were guilty of strike-breaking and/or union-busting and, consequently, of unfair
labor practice. It is equivalent to an attempt to break a strike for an employer to offer reinstatement to
striking employees individually, when they are represented by a union, since the employees thus
offered reinstatement are unable to determine what the consequences of returning to work would be.

Likewise violative of the right to organize, form and join labor organizations are the following acts:
the offer of a Christmas bonus to all "loyal" employees of a company shortly after the making of a
request by the union to bargain; wage increases given for the purpose of mollifying employees after
the employer has refused to bargain with the union, or for the purpose of inducing striking
employees to return to work; the employer's promises of benefits in return for the strikers'
abandonment of their strike in support of their union; and the employer's statement, made about 6
weeks after the strike started, to a group of strikers in a restaurant to the effect that if the strikers
returned to work, they would receive new benefits in the form of hospitalization, accident insurance,
profit-sharing, and a new building to work in.2

Citing paragraph 5 of the complaint filed by the acting prosecutor of the lower court which states that
"the officers and members of the complainant unions decided to call off the strike and return to work
on June 2, 1958 by reason of the injunction issued by the Manila Court of First Instance," the
respondents contend that this was the main cause why the strikers returned to work and not the
letters, exhibits A and B. This assertion is without merit. The circumstance that the strikers later
decided to return to work ostensibly on account of the injunctive writ issued by the Court of First
Instance of Manila cannot alter the intrinsic quality of the letters, which were calculated, or which
tended, to interfere with the employees' right to engage in lawful concerted activity in the form of a
strike. Interference constituting unfair labor practice will not cease to be such simply because it was
susceptible of being thwarted or resisted, or that it did not proximately cause the result intended. For
success of purpose is not, and should not, be the criterion in determining whether or not a prohibited
act constitutes unfair labor practice.

The test of whether an employer has interfered with and coerced employees within
the meaning of subsection (a) (1) is whether the employer has engaged in conduct
which it may reasonably be said tends to interfere with the free exercise of
employees' rights under section 3 of the Act, and it is not necessary that there be
direct evidence that any employee was in fact intimidated or coerced by statements
of threats of the employer if there is a reasonable inference that anti-union conduct of
the employer does have an adverse effect on self-organization and collective
bargaining. (Francisco, Labor Laws 1956, Vol. II, p. 323, citing NLRB v. Ford, C.A.,
1948, 170 F2d 735).

Besides, the letters, exhibits A and B, should not be considered by themselves alone but should be
read in the light of the preceding and subsequent circumstances surrounding them. The letters
should be interpreted according to the "totality of conduct doctrine,"

... whereby the culpability of an employer's remarks were to be evaluated not only on
the basis of their implicit implications, but were to be appraised against the
background of and in conjunction with collateral circumstances. Under this "doctrine"
expressions of opinion by an employer which, though innocent in themselves,
frequently were held to be culpable because of the circumstances under which they
were uttered, the history of the particular employer's labor relations or anti-union bias
or because of their connection with an established collateral plan of coercion or
interference. (Rothenberg on Relations, p. 374, and cases cited therein.)
It must be recalled that previous to the petitioners' submission of proposals for an amended renewal
of their respective collective bargaining agreements to the respondents, the latter hired Felipe Enage
and Ramon Garcia, former legal counsels of the petitioners, as personnel manager and assistant
corporate secretary, respectively, with attractive compensations. After the notice to strike was served
on the Companies and negotiations were in progress in the Department of Labor, the respondents
reclassified 87 employees as supervisors without increase in salary or in responsibility, in effect
compelling these employees to resign from their unions. And during the negotiations in the
Department of Labor, despite the fact that the petitioners granted the respondents' demand that the
former drop their demand for union shop and in spite of urgings by the conciliators of the Department
of Labor, the respondents adamantly refused to answer the Unions' demands en toto. Incidentally,
Enage was the chairman of the negotiating panel for the Companies in the collective bargaining
between the former and the Unions. After the petitioners went to strike, the strikers were individually
sent copies of exhibit A, enticing them to abandon their strike by inducing them to return to work
upon promise of special privileges. Two days later, the respondents, thru their president and
manager, respondent Jose M. Olbes, brought three truckloads of non-strikers and others, escorted
by armed men, who, despite the presence of eight entrances to the three buildings occupied by the
Companies, entered thru only one gate less than two meters wide and in the process, crashed thru
the picket line posted in front of the premises of the Insular Life Building. This resulted in injuries on
the part of the picketers and the strike-breakers. Then the respondents brought against the
lwph1.t

picketers criminal charges, only three of which were not dismissed, and these three only for slight
misdemeanors. As a result of these criminal actions, the respondents were able to obtain an
injunction from the court of first instance restraining the strikers from stopping, impeding, obstructing,
etc. the free and peaceful use of the Companies' gates, entrance and driveway and the free
movement of persons and vehicles to and from, out and in, of the Companies' buildings. On the
same day that the injunction was issued, the letter, Exhibit B, was sent again individually and by
registered special delivery mail to the strikers, threatening them with dismissal if they did not
report for work on or before June 2, 1958. But when most of the petitioners reported for work, the
respondents thru a screening committee of which Ramon Garcia was a member refused to
admit 63 members of the Unions on the ground of "pending criminal charges." However, when
almost all were cleared of criminal charges by the fiscal's office, the respondents adamantly refused
admission to 34 officials and union members. It is not, however, disputed that all-non-strikers with
pending criminal charges which arose from the breakthrough incident of May 23, 1958 were
readmitted immediately by the respondents. Among the non-strikers with pending criminal charges
who were readmitted were Generoso Abella, Enrique Guidote, Emilio Carreon, Antonio Castillo,
Federico Barretto, Manuel Chuidian and Nestor Cipriano. And despite the fact that the fiscal's office
found no probable cause against the petitioning strikers, the Companies adamantly refused
admission to them on the pretext that they committed "acts inimical to the interest of the
respondents," without stating specifically the inimical acts allegedly committed. They were soon to
admit, however, that these alleged inimical acts were the same criminal charges which were
dismissed by the fiscal and by the courts..

Verily, the above actuations of the respondents before and after the issuance of the letters, exhibit A
and B, yield the clear inference that the said letters formed of the respondents scheme to preclude if
not destroy unionism within them.

To justify the respondents' threat to dismiss the strikers and secure replacements for them in order
to protect and continue their business, the CIR held the petitioners' strike to be an economic strike
on the basis of exhibit 4 (Notice of Strike) which states that there was a "deadlock in collective
bargaining" and on the strength of the supposed testimonies of some union men who did not actually
know the very reason for the strike. It should be noted that exhibit 4, which was filed on January 27,
1958, states, inter alia:
 TO: BUREAU OF LABOR RELATIONS
DEPARTMENT OF LABOR
MANILA

Thirty (30) days from receipt of this notice by the Office, this [sic] unions intends to go
on strike against

THE INSULAR LIFE ASSURANCE CO., LTD.

Plaza Moraga, Manila

THE FGU INSURANCE GROUP

Plaza Moraga, Manila

INSULAR LIFE BUILDING ADMINISTRATION

Plaza Moraga, Manila .

for the following reason: DEADLOCK IN COLLECTIVE BARGAINING...

However, the employees did not stage the strike after the thirty-day period, reckoned from January
27, 1958. This simply proves that the reason for the strike was not the deadlock on collective
bargaining nor any lack of economic concessions. By letter dated April 15, 1958, the respondents
categorically stated what they thought was the cause of the "Notice of Strike," which so far as
material, reads:

3. Because you did not see fit to agree with our position on the union shop, you filed
a notice of strike with the Bureau of Labor Relations on 27 January 1958, citing
`deadlock in collective bargaining' which could have been for no other issue than the
union shop." (exhibit 8, letter dated April 15, 1958.)

The strike took place nearly four months from the date the said notice of strike was filed. And the
actual and main reason for the strike was, "When it became crystal clear the management double
crossed or will not negotiate in good faith, it is tantamount to refusal collectively and considering the
unfair labor practice in the meantime being committed by the management such as the sudden
resignation of some unionists and [who] became supervisors without increase in salary or change in
responsibility, such as the coercion of employees, decided to declare the strike." (tsn., Oct. 14, 1958,
p. 14.) The truth of this assertion is amply proved by the following circumstances: (1) it took the
respondents six (6) months to consider the petitioners' proposals, their only excuse being that they
could not go on with the negotiations if the petitioners did not drop the demand for union shop (exh.
7, respondents' letter dated April 7, 1958); (2) when the petitioners dropped the demand for union
shop, the respondents did not have a counter-offer to the petitioners' demands. Sec. 14 of Rep. Act
875 required the respondents to make a reply to the petitioners' demands within ten days from
receipt thereof, but instead they asked the petitioners to give a "well reasoned, workable formula
which takes into account the financial position of the group companies." (tsn., Sept. 8, 1958, p. 62;
tsn., Feb. 26, 1969, p. 49.)

II. Exhibit H imposed three conditions for readmission of the strikers, namely: (1) the employee must
be interested in continuing his work with the group companies; (2) there must be no criminal charges
against him; and (3) he must report for work on June 2, 1958, otherwise he would be replaced. Since
the evidence shows that all the employees reported back to work at the respondents' head office on
June 2, 1953, they must be considered as having complied with the first and third conditions.
Our point of inquiry should therefore be directed at whether they also complied with the second
condition. It is not denied that when the strikers reported for work on June 2, 1958, 63 members of
the Unions were refused readmission because they had pending criminal charges. However, despite
the fact that they were able to secure their respective clearances 34 officials and union members
were still refused readmission on the alleged ground that they committed acts inimical to the
Companies. It is beyond dispute, however, that non-strikers who also had criminal charges pending
against them in the fiscal's office, arising from the same incidents whence the criminal charges
against the strikers evolved, were readily readmitted and were not required to secure clearances.
This is a clear act of discrimination practiced by the Companies in the process of rehiring and is
therefore a violation of sec. 4(a) (4) of the Industrial Peace Act.

The respondents did not merely discriminate against all the strikers in general. They separated the
active from the less active unionists on the basis of their militancy, or lack of it, on the picket lines.
Unionists belonging to the first category were refused readmission even after they were able to
secure clearances from the competent authorities with respect to the criminal charges filed against
them. It is significant to note in this connection that except for one union official who deserted his
union on the second day of the strike and who later participated in crashing through the picket lines,
not a single union officer was taken back to work. Discrimination undoubtedly exists where the
record shows that the union activity of the rehired strikers has been less prominent than that of the
strikers who were denied reinstatement.

So is there an unfair labor practice where the employer, although authorized by the
Court of Industrial Relations to dismiss the employees who participated in an illegal
strike, dismissed only the leaders of the strikers, such dismissal being evidence of
discrimination against those dismissed and constituting a waiver of the employer's
right to dismiss the striking employees and a condonation of the fault committed by
them." (Carlos and Fernando, Labor and Social Legislation, p. 62, citing Phil. Air
Lines, Inc. v. Phil. Air Lines Emloyees Association, L-8197, Oct. 31, 1958.)

It is noteworthy that perhaps in an anticipatory effort to exculpate themselves from charges of

discrimination in the readmission of strikers returning to work the respondents delegated the
power to readmit to a committee. But the respondent Olbes had chosen Vicente Abella, chief of the
personnel records section, and Ramon Garcia, assistant corporate secretary, to screen the unionists
reporting back to work. It is not difficult to imagine that these two employees having been involved
in unpleasant incidents with the picketers during the strike were hostile to the strikers. Needless
to say, the mere act of placing in the hands of employees hostile to the strikers the power of
reinstatement, is a form of discrimination in rehiring.

Delayed reinstatement is a form of discrimination in rehiring, as is having the

machinery of reinstatement in the hands of employees hostile to the strikers, and
reinstating a union official who formerly worked in a unionized plant, to a job in
another mill, which was imperfectly organized. (Morabe, The Law on Strikes, p. 473,
citing Sunshine Mining Co., 7 NLRB 1252; Cleveland Worsted Mills, 43 NLRB 545;
emphasis supplied.)

Equally significant is the fact that while the management and the members of the screening
committee admitted the discrimination committed against the strikers, they tossed back and around
to each other the responsibility for the discrimination. Thus, Garcia admitted that in exercising for the
management the authority to screen the returning employees, the committee admitted the non-
strikers but refused readmission to the strikers (tsn., Feb. 6, 1962, pp. 15-19, 23-29). Vicente Abella,
chairman of the management's screening committee, while admitting the discrimination, placed the
blame therefor squarely on the management (tsn., Sept. 20, 1960, pp. 7-8, 14-18). But the
management, speaking through the respondent Olbes, head of the Companies, disclaimed
responsibility for the discrimination. He testified that "The decision whether to accept or not an
employee was left in the hands of that committee that had been empowered to look into all cases of
the strikers." (tsn., Sept. 6, 1962, p. 19.)

Of course, the respondents through Ramon Garcia tried to explain the basis for such
discrimination by testifying that strikers whose participation in any alleged misconduct during the
picketing was not serious in nature were readmissible, while those whose participation was serious
were not. (tsn., Aug. 4, 1961, pp. 48-49, 56). But even this distinction between acts of slight
misconduct and acts of serious misconduct which the respondents contend was the basis for either
reinstatement or discharge, is completely shattered upon a cursory examination of the evidence on
record. For with the exception of Pascual Esquillo whose dismissal sent to the other strikers cited the
alleged commission by them of simple "acts of misconduct."

III. Anent the third assignment of error, the record shows that not a single dismissed striker was
given the opportunity to defend himself against the supposed charges against him. As earlier
mentioned, when the striking employees reported back for work on June 2, 1958, the respondents
refused to readmit them unless they first secured the necessary clearances; but when all, except
three, were able to secure and subsequently present the required clearances, the respondents still
refused to take them back. Instead, several of them later received letters from the respondents in the
following stereotyped tenor:

This will confirm the termination of your employment with the Insular Life-FGU
Insurance Group as of 2 June 1958.

The termination of your employment was due to the fact that you committed acts of
misconduct while picketing during the last strike. Because this may not constitute
sufficient cause under the law to terminate your employment without pay, we are
giving you the amount of P1,930.32 corresponding to one-half month pay for every
year of your service in the Group Company.

Kindly acknowledge receipt of the check we are sending herewith.

Very truly yours,

(Sgd.) JOSE M.
OLBES
President, Insurance
Life
Acting President, FGU.

The respondents, however, admitted that the alleged "acts of misconduct" attributed to the dismissed
strikers were the same acts with which the said strikers were charged before the fiscal's office and
the courts. But all these charges except three were dropped or dismissed.

Indeed, the individual cases of dismissed officers and members of the striking unions do not indicate
sufficient basis for dismissal.

Emiliano Tabasondra, vice-president of the petitioner FGU Insurance Group Workers & Employees
Association-NATU, was refused reinstatement allegedly because he did not report for duty on June
2, 1958 and, hence, had abandoned his office. But the overwhelming evidence adduced at the trial
and which the respondents failed to rebut, negates the respondents' charge that he had abandoned
his job. In his testimony, corroborated by many others, Tabasondra particularly identified the
management men to whom he and his group presented themselves on June 2, 1958. He mentioned
the respondent Olbes' secretary, De Asis, as the one who received them and later directed them
when Olbes refused them an audience to Felipe Enage, the Companies' personnel manager. He
likewise categorically stated that he and his group went to see Enage as directed by Olbes'
secretary. If Tabasondra were not telling the truth, it would have been an easy matter for the
respondents to produce De Asis and Enage who testified anyway as witnesses for the
respondents on several occasions to rebut his testimony. The respondents did nothing of the
kind. Moreover, Tabasondra called on June 21, 1958 the respondents' attention to his non-
admission and asked them to inform him of the reasons therefor, but instead of doing so, the
respondents dismissed him by their letter dated July 10, 1958. Elementary fairness required that
before being dismissed for cause, Tabasondra be given "his day in court."

At any rate, it has been held that mere failure to report for work after notice to return, does not
constitute abandonment nor bar reinstatement. In one case, the U.S. Supreme Court held that the
taking back of six of eleven men constituted discrimination although the five strikers who were not
reinstated, all of whom were prominent in the union and in the strike, reported for work at various
times during the next three days, but were told that there were no openings. Said the Court:

... The Board found, and we cannot say that its finding is unsupported, that, in taking
back six union men, the respondent's officials discriminated against the latter on
account of their union activities and that the excuse given that they did not apply until
after the quota was full was an afterthought and not the true reason for the
discrimination against them. (NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333,
58 Sup. Ct. 904, 82 L. Ed. 1381) (Mathews, Labor Relations and the Law, p. 725,
728)

The respondents' allegation that Tabasondra should have returned after being refused readmission
on June 2, 1958, is not persuasive. When the employer puts off reinstatement when an employee
reports for work at the time agreed, we consider the employee relieved from the duty of returning
further.

Sixto Tongos was dismissed allegedly because he revealed that despite the fact that the Companies
spent more than P80,000 for the vacation trips of officials, they refused to grant union demands;
hence, he betrayed his trust as an auditor of the Companies. We do not find this allegation
convincing. First, this accusation was emphatically denied by Tongos on the witness stand.
Gonzales, president of one of the respondent Companies and one of the officials referred to, took a
trip abroad in 1958. Exchange controls were then in force, and an outgoing traveller on a combined
business and vacation trip was allowed by the Central Bank, per its Circular 52 (Notification to
Authorized Agent Banks) dated May 9, 1952, an allocation of $1,000 or only P2,000, at the official
rate of two pesos to the dollar, as pocket money; hence, this was the only amount that would appear
on the books of the Companies. It was only on January 21, 1962, per its Circular 133 (Notification to
Authorized Agent Banks), that the Central Bank lifted the exchange controls. Tongos could not
therefore have revealed an amount bigger than the above sum. And his competence in figures could
not be doubted considering that he had passed the board examinations for certified public
accountants. But assuming arguendo that Tongos indeed revealed the true expenses of Gonzales'
trip which the respondents never denied or tried to
disprove his statements clearly fall within the sphere of a unionist's right to discuss and advertise
the facts involved in a labor dispute, in accordance with section 9(a)(5) of Republic Act 875 which
guarantees the untramelled exercise by striking employees of the right to give "publicity to the
existence of, or the fact involved in any labor dispute, whether by advertising, speaking, patrolling or
by any method not involving fraud or violence." Indeed, it is not only the right, it is as well the duty, of
every unionist to advertise the facts of a dispute for the purpose of informing all those affected
thereby. In labor disputes, the combatants are expected to expose the truth before the public to
justify their respective demands. Being a union man and one of the strikers, Tongos was expected to
reveal the whole truth on whether or not the respondent Companies were justified in refusing to
accede to union demands. After all, not being one of the supervisors, he was not a part of
management. And his statement, if indeed made, is but an expression of free speech protected by
the Constitution.

Free speech on both sides and for every faction on any side of the labor relation is to
me a constitutional and useful right. Labor is free ... to turn its publicity on any labor
oppression, substandard wages, employer unfairness, or objectionable working
conditions. The employer, too, should be free to answer and to turn publicity on the
records of the leaders of the unions which seek the confidence of his men ...
(Concurring opinion of Justice Jackson in Thomas v. Collins, 323 U.S. 516, 547, 65
Sup. Ct. 315, 89 L. Ed. 430.) (Mathews, Labor Relations and the Law, p. 591.)

The respondents also allege that in revealing certain confidential information, Tongos committed not
only a betrayal of trust but also a violation of the moral principles and ethics of accountancy. But
nowhere in the Code of Ethics for Certified Public Accountants under the Revised Rules and
Regulations of the Board of Accountancy formulated in 1954, is this stated. Moreover, the
relationship of the Companies with Tongos was that of an employer and not a client. And with regard
to the testimonies of Juan Raymundo and Antolin Carillo, both vice-presidents of the Trust Insurance
Agencies, Inc. about the alleged utterances made by Tongos, the lower court should not have given
them much weight. The firm of these witnesses was newly established at that time and was still a
"general agency" of the Companies. It is not therefore amiss to conclude that they were more
inclined to favor the respondents rather than Tongos.

Pacifico Ner, Paulino Bugay, Jose Garcia, Narciso Dao, Vicente Alsol and Hermenigildo Ramirez,
opined the lower court, were constructively dismissed by non-readmission allegedly because they
not only prevented Ramon Garcia, assistant corporate secretary, and Vicente Abella, chief of the
personnel records section of the Companies, from entering the Companies' premises on May 21,
1958, but they also caused bruises and abrasions on Garcia's chest and forehead acts
considered inimical to the interest of the respondents. The Unions, upon the other hand, insist that
there is complete lack of evidence that Ner took part in pushing Garcia; that it was Garcia who
elbowed his way through the picket lines and therefore Ner shouted "Close up," which the picketers
did; and that Garcia tossed Paulino Bugay's placard and a fight ensued between them in which both
suffered injuries. But despite these conflicting versions of what actually happened on May 21, 1958,
there are grounds to believe that the picketers are not responsible for what happened. Thelwph1.t

picketing on May 21, 1958, as reported in the police blotter, was peaceful (see Police blotter report,
exh. 3 in CA-G.R. No. 25991-R of the Court of Appeals, where Ner was acquitted). Moreover,
although the Companies during the strike were holding offices at the Botica Boie building at Escolta,
Manila; Tuason Building at San Vicente Street, Manila; and Ayala, Inc. offices at Makati, Rizal,
Garcia, the assistant corporate secretary, and Abella, the chief of the personnel records section,
reported for work at the Insular Life Building. There is therefore a reasonable suggestion that they
were sent to work at the latter building to create such an incident and have a basis for filing criminal
charges against the petitioners in the fiscal's office and applying for injunction from the court of first
instance. Besides, under the circumstances the picketers were not legally bound to yield their
grounds and withdraw from the picket lines. Being where the law expects them to be in the legitimate
exercise of their rights, they had every reason to defend themselves and their rights from any assault
or unlawful transgression. Yet the police blotter, about adverted to, attests that they did not resort to
violence.

The heated altercations and occasional blows exchanged on the picket line do not affect or diminish
the right to strike. Persuasive on this point is the following commentary: .
 We think it must be conceded that some disorder is unfortunately quite usual in any
extensive or long drawn out strike. A strike is essentially a battle waged with
economic weapons. Engaged in it are human beings whose feelings are stirred to the
depths. Rising passions call forth hot words. Hot words lead to blows on the picket
line. The transformation from economic to physical combat by those engaged in the
contest is difficult to prevent even when cool heads direct the fight. Violence of this
nature, however much it is to be regretted, must have been in the contemplation of
the Congress when it provided in Sec. 13 of Act 29 USCA Sec. 163, that nothing
therein should be construed so as to interfere with or impede or diminish in any way
the right to strike. If this were not so, the rights afforded to employees by the Act
would indeed be illusory. We accordingly recently held that it was not intended by the
Act that minor disorders of this nature would deprive a striker of the possibility of
reinstatement. (Republic Steel Corp. v. N. L. R. B., 107 F2d 472, cited in Mathews,
Labor Relations and the Law, p. 378)

Hence the incident that occurred between Ner, et al. and Ramon Garcia was but a necessary
incident of the strike and should not be considered as a bar to reinstatement. Thus it has been held
that:

Fist-fighting between union and non-union employees in the midst of a strike is no bar to
reinstatement. (Teller, Labor Disputes and Collective Bargaining, Vol. II, p. 855 citing Stackpole
Carbon, Co. 6 NLRB 171, enforced 105 F2d 167.)

Furthermore, assuming that the acts committed by the strikers were transgressions of law, they
amount only to mere ordinary misdemeanors and are not a bar to reinstatement.

In cases involving misdemeanors the board has generally held that unlawful acts are not bar to
reinstatement. (Teller, Labor Disputes and Collective Bargaining, Id., p. 854, citing Ford Motor
Company, 23 NLRB No. 28.)

Finally, it is not disputed that despite the pendency of criminal charges against non-striking
employees before the fiscal's office, they were readily admitted, but those strikers who had pending
charges in the same office were refused readmission. The reinstatement of the strikers is thus in
order.

[W]here the misconduct, whether in reinstating persons equally guilty with those
whose reinstatement is opposed, or in other ways, gives rise to the inference that
union activities rather than misconduct is the basis of his [employer] objection, the
Board has usually required reinstatement." (Teller, supra, p. 853, citing the Third
Annual Report of NLRB [1938], p. 211.)

Lastly, the lower Court justified the constructive dismissal of Florencio Ibarra allegedly because he
committed acts inimical to the interest of the respondents when, as president of the FGU Workers
and Employees Association-NATU, he advised the strikers that they could use force and violence to
have a successful picket and that picketing was precisely intended to prevent the non-strikers and
company clients and customers from entering the Companies' buildings. Even if this were true, the
record discloses that the picket line had been generally peaceful, and that incidents happened only
when management men made incursions into and tried to break the picket line. At any rate, with or
without the advice of Ibarra, picketing is inherently explosive. For, as pointed out by one author, "The
picket line is an explosive front, charged with the emotions and fierce loyalties of the union-
management dispute. It may be marked by colorful name-calling, intimidating threats or sporadic
fights between the pickets and those who pass the line." (Mathews, Labor Relations and the Law, p.
752). The picket line being the natural result of the respondents' unfair labor practice, Ibarra's
misconduct is at most a misdemeanor which is not a bar to reinstatement. Besides, the only
evidence presented by the Companies regarding Ibarra's participation in the strike was the testimony
of one Rodolfo Encarnacion, a former member of the board of directors of the petitioner FGU
Insurance Group Workers and Employees Union-NATU, who became a "turncoat" and who likewise
testified as to the union activities of Atty. Lacsina, Ricardo Villaruel and others (annex C, Decision, p.
27) another matter which emphasizes the respondents' unfair labor practice. For under the
circumstances, there is good ground to believe that Encarnacion was made to spy on the actvities of
the union members. This act of the respondents is considered unjustifiable interference in the union
activities of the petitioners and is unfair labor practice.

It has been held in a great number of decisions at espionage by an employer of

union activities, or surveillance thereof, are such instances of interference, restraint
or coercion of employees in connection with their right to organize, form and join
unions as to constitute unfair labor practice.

... "Nothing is more calculated to interfere with, restrain and coerce employees in the
exercise of their right to self-organization than such activity even where no
discharges result. The information obtained by means of espionage is in valuable to
the employer and can be used in a variety of cases to break a union." The unfair
labor practice is committed whether the espionage is carried on by a professional
labor spy or detective, by officials or supervisory employees of the employer, or by
fellow employees acting at the request or direction of the employer, or an ex-
employee..." (Teller, Labor Disputes and Collective Bargaining, Vol. II, pp. 765-766,
and cases cited.) .

IV. The lower court should have ordered the reinstatement of the officials and members of the
Unions, with full back wages from June 2, 1958 to the date of their actual reinstatement to their usual
employment. Because all too clear from the factual and environmental milieu of this case, coupled
with settled decisional law, is that the Unions went on strike because of the unfair labor practices
committed by the respondents, and that when the strikers reported back for work upon the
invitation of the respondents they were discriminatorily dismissed. The members and officials of
the Unions therefore are entitled to reinstatement with back pay.

[W]here the strike was induced and provoked by improper conduct on the part of an
employer amounting to an 'unfair labor practice,' the strikers are entitled to
reinstatement with back pay. (Rothenberg on Labor Relations, p. 418.)

[A]n employee who has been dismissed in violation of the provisions of the Act is
entitled to reinstatement with back pay upon an adjudication that the discharge was
illegal." (Id., citing Waterman S. S. Corp. v. N. L. R. B., 119 F2d 760; N. L. R. B. v.
Richter's Bakery, 140 F2d 870; N. L. R. B. v. Southern Wood Preserving Co., 135 F.
2d 606; C. G. Conn, Ltd. v. N. L. R. B., 108 F2d 390; N. L. R. B. v. American Mfg.
Co., 106 F2d 61; N. L. R. B. v. Kentucky Fire Brick Co., 99 F2d 99.)

And it is not a defense to reinstatement for the respondents to allege that the positions of these
union members have already been filled by replacements.

[W]here the employers' "unfair labor practice" caused or contributed to the strike or
where the 'lock-out' by the employer constitutes an "unfair labor practice," the
employer cannot successfully urge as a defense that the striking or lock-out
employees position has been filled by replacement. Under such circumstances, if no
 job sufficiently and satisfactorily comparable to that previously held by the aggrieved
employee can be found, the employer must discharge the replacement employee, if
necessary, to restore the striking or locked-out worker to his old or comparable
position ... If the employer's improper conduct was an initial cause of the strike, all
the strikers are entitled to reinstatement and the dismissal of replacement employees
wherever necessary; ... . (Id., p. 422 and cases cited.)

A corollary issue to which we now address ourselves is, from what date should the backpay payable
to the unionists be computed? It is now a settled doctrine that strikers who are entitled to
reinstatement are not entitled to back pay during the period of the strike, even though it is caused by
an unfair labor practice. However, if they offer to return to work under the same conditions just
before the strike, the refusal to re-employ or the imposition of conditions amounting to unfair labor
practice is a violation of section 4(a) (4) of the Industrial Peace Act and the employer is liable for
backpay from the date of the offer (Cromwell Commercial Employees and Laborers Union vs. Court
of Industrial Relations, L-19778, Decision, Sept. 30, 1964, 12 SCRA 124; Id., Resolution on motion
for reconsideration, 13 SCRA 258; see also Mathews, Labor Relations and the Law, p. 730 and the
cited cases). We have likewise ruled that discriminatorily dismissed employees must receive
backpay from the date of the act of discrimination, that is, from the date of their discharge (Cromwell
Commercial Employees and Laborers Union vs. Court of Industrial Relations, supra).

The respondents notified the petitioner strikers to report back for work on June 2, 1958, which the
latter did. A great number of them, however, were refused readmission because they had criminal
charges against them pending before the fiscal's office, although non-strikers who were also facing
criminal indictments were readily readmitted. These strikers who were refused readmission on June
2, 1958 can thus be categorized as discriminatorily dismissed employees and are entitled to
backpay from said date. This is true even with respect to the petitioners Jose Pilapil, Paulino Bugay,
Jr. and Jose Garcia, Jr. who were found guilty only of misdemeanors which are not considered
sufficient to bar reinstatement (Teller, Labor Disputes and Collective Bargaining, p. 854), especially
so because their unlawful acts arose during incidents which were provoked by the respondents'
men. However, since the employees who were denied readmission have been out of the service of
the Companies (for more than ten years) during which they may have found other employment or
other means of livelihood, it is only just and equitable that whatever they may have earned during
that period should be deducted from their back wages to mitigate somewhat the liability of the
company, pursuant to the equitable principle that no one is allowed to enrich himself at the expense
of another (Macleod & Co. of the Philippines v. Progressive Federation of Labor, 97 Phil. 205
[1955]).

The lower court gave inordinate significance to the payment to and acceptance by the dismissed
employees of separation pay. This Court has ruled that while employers may be authorized under
Republic Act 1052 to terminate employment of employees by serving the required notice, or, in the
absence thereof, by paying the required compensation, the said Act may not be invoked to justify a
dismissal prohibited by law, e.g., dismissal for union activities.

... While Republic Act No. 1052 authorizes a commercial establishment to terminate
the employment of its employee by serving notice on him one month in advance, or,
in the absence thereof, by paying him one month compensation from the date of the
termination of his employment, such Act does not give to the employer a blanket
authority to terminate the employment regardless of the cause or purpose behind
such termination. Certainly, it cannot be made use of as a cloak to circumvent a final
order of the court or a scheme to trample upon the right of an employee who has
been the victim of an unfair labor practice. (Yu Ki Lam, et al. v. Nena Micaller, et al.,
99 Phil. 904 [1956].)
Finally, we do not share the respondents' view that the findings of fact of the Court of Industrial
Relations are supported by substantial and credible proof. This Court is not therefore precluded from
digging deeper into the factual milieu of the case (Union of Philippine Education Employees v.
Philippine Education Company, 91 Phil. 93; Lu Do & Lu Ym Corporation v. Philippine-Land-Air-Sea
Labor Union, 11 SCRA 134 [1964]).

V. The petitioners (15 of them) ask this Court to cite for contempt the respondent Presiding Judge
Arsenio Martinez of the Court of Industrial Relations and the counsels for the private respondents,
on the ground that the former wrote the following in his decision subject of the instant petition
for certiorari, while the latter quoted the same on pages 90-91 of the respondents' brief: .

... Says the Supreme Court in the following decisions:

In a proceeding for unfair labor practice, involving a determination as

to whether or not the acts of the employees concerned justified the
adoption of the employer of disciplinary measures against them, the
mere fact that the employees may be able to put up a valid defense in
a criminal prosecution for the same acts, does not erase or neutralize
the employer's right to impose discipline on said employees. For it is
settled that not even the acquittal of an employee of the criminal
charge against him is a bar to the employer's right to impose
discipline on its employees, should the act upon which the criminal
charged was based constitute nevertheless an activity inimical to the
employer's interest... The act of the employees now under
consideration may be considered as a misconduct which is a just
cause for dismissal. (Lopez, Sr., et al. vs. Chronicle Publication
Employees Ass'n. et al., G.R. No. L-20179-81, December 28, 1964.)
(emphasis supplied)

The two pertinent paragraphs in the above-cited decision * which contained the underscored
portions of the above citation read however as follows:

Differently as regard the dismissal of Orlando Aquino and Carmelito Vicente, we are
inclined to uphold the action taken by the employer as proper disciplinary measure. A
reading of the article which allegedly caused their dismissal reveals that it really
contains an insinuation albeit subtly of the supposed exertion of political pressure by
the Manila Chronicle management upon the City Fiscal's Office, resulting in the non-
filing of the case against the employer. In rejecting the employer's theory that the
dismissal of Vicente and Aquino was justified, the lower court considered the article
as "a report of some acts and omissions of an Assistant Fiscal in the exercise of his
official functions" and, therefore, does away with the presumption of malice. This
being a proceeding for unfair labor practice, the matter should not have been viewed
or gauged in the light of the doctrine on a publisher's culpability under the Penal
Code. We are not here to determine whether the employees' act could stand criminal
prosecution, but only to find out whether the aforesaid act justifies the adoption by
the employer of disciplinary measure against them. This is not sustaining the ruling
that the publication in question is qualified privileged, but even on the assumption
that this is so, the exempting character thereof under the Penal Code does not
necessarily erase or neutralize its effect on the employer's interest which may
warrant employment of disciplinary measure. For it must be remembered that not
even the acquittal of an employee, of the criminal charges against him, is a bar to the
employer's right to impose discipline on its employees, should the act upon which the
 criminal charges was based constitute nevertheless an activity inimical to the
employer's interest.

In the herein case, it appears to us that for an employee to publish his "suspicion,"
which actually amounts to a public accusation, that his employer is exerting political
pressure on a public official to thwart some legitimate activities on the employees,
which charge, in the least, would sully the employer's reputation, can be nothing but
an act inimical to the said employer's interest. And the fact that the same was made
in the union newspaper does not alter its deleterious character nor shield or protect a
reprehensible act on the ground that it is a union activity, because such end can be
achieved without resort to improper conduct or behavior. The act of the employees
now under consideration may be considered as a misconduct which is a just cause
for dismissal.** (Emphasis ours)

It is plain to the naked eye that the 60 un-underscored words of the paragraph quoted by the
respondent Judge do not appear in the pertinent paragraph of this Court's decision in L-20179-81.
Moreover, the first underscored sentence in the quoted paragraph starts with "For it is settled ..."
whereas it reads, "For it must be remembered ...," in this Court's decision. Finally, the second and
last underlined sentence in the quoted paragraph of the respondent Judge's decision, appears not in
the same paragraph of this Court's decision where the other sentence is, but in the immediately
succeeding paragraph.

This apparent error, however, does not seem to warrant an indictment for contempt against the
respondent Judge and the respondents' counsels. We are inclined to believe that the misquotation is
more a result of clerical ineptitude than a deliberate attempt on the part of the respondent Judge to
mislead. We fully realize how saddled with many pending cases are the courts of the land, and it is
not difficult to imagine that because of the pressure of their varied and multifarious work, clerical
errors may escape their notice. Upon the other hand, the respondents' counsels have the prima
facie right to rely on the quotation as it appears in the respondent Judge's decision, to copy it
verbatim, and to incorporate it in their brief. Anyway, the import of the underscored sentences of the
quotation in the respondent Judge's decision is substantially the same as, and faithfully reflects, the
particular ruling in this Court's decision, i.e., that "[N]ot even the acquittal of an employee, of the
criminal charges against him, is a bar to the employer's right to impose discipline on its employees,
should the act upon which the criminal charges were based constitute nevertheless an activity
inimical to the employer's interest."

Be that as it may, we must articulate our firm view that in citing this Court's decisions and rulings, it is
the bounden duty of courts, judges and lawyers to reproduce or copy the same word-for-word and
punctuation mark-for-punctuation mark. Indeed, there is a salient and salutary reason why they
should do this. Only from this Tribunal's decisions and rulings do all other courts, as well as lawyers
and litigants, take their bearings. This is because the decisions referred to in article 8 of the Civil
Code which reads, "Judicial decisions applying or interpreting the laws or the Constitution shall form
a part of the legal system of the Philippines," are only those enunciated by this Court of last resort.
We said in no uncertain terms in Miranda, et al. vs. Imperial, et al. (77 Phil. 1066) that "[O]nly the
decisions of this Honorable Court establish jurisprudence or doctrines in this jurisdiction." Thus, ever
present is the danger that if not faithfully and exactly quoted, the decisions and rulings of this Court
may lose their proper and correct meaning, to the detriment of other courts, lawyers and the public
who may thereby be misled. But if inferior courts and members of the bar meticulously discharge
their duty to check and recheck their citations of authorities culled not only from this Court's
decisions but from other sources and make certain that they are verbatim reproductions down to the
last word and punctuation mark, appellate courts will be precluded from acting on misinformation, as
well as be saved precious time in finding out whether the citations are correct.
Happily for the respondent Judge and the respondents' counsels, there was no substantial change in
the thrust of this Court's particular ruling which they cited. It is our view, nonetheless, that for their
mistake, they should be, as they are hereby, admonished to be more careful when citing
jurisprudence in the future. ACCORDINGLY, the decision of the Court of Industrial Relations dated
August 17, 1965 is reversed and set aside, and another is entered, ordering the respondents to
reinstate the dismissed members of the petitioning Unions to their former or comparatively similar
positions, with backwages from June 2, 1958 up to the dates of their actual reinstatements. Costs
against the respondents.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Fernando, Teehankee, Barredo, Villamor and
Makasiar, JJ., concur.

Zaldivar, J., took no part.

 ELSON P. COLLANTES, G.R. No. 169604
Petitioner,
Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
- versus - CORONA,*
CARPIO MORALES,
CALLEJO, SR.,**
AZCUNA,***
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, JR., and
NACHURA, JJ.*
HON. COURT OF APPEALS,
CIVIL SERVICE COMMISSION
and DEPARTMENT OF Promulgated:
NATIONAL DEFENSE,
Respondents. March 6, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

A decision that has acquired finality becomes immutable and unalterable. A

final judgment may no longer be modified in any respect, even if the modification is
meant to correct erroneous conclusions of fact and law; and whether it be made by
the court that rendered it or by the highest court in the land.[1]

What would happen, however, if two separate decisions, irreconcilably

conflicting with each other, both attained finality? Quite clearly, to hold that both
decisions are immutable and unalterable would cause not only confusion and
uncertainty, but utter bewilderment upon the persons tasked to execute these
judgments.

This is a Petition for Review on Certiorari under Rule 45 of the Rules of

Court, seeking to set aside the Decision[2] dated 10 March 2005 and the
Resolution[3]dated 31 August 2005 of the Court of Appeals in CA-G.R. SP No.
78092.

The undisputed facts of this case are summarized by the Court of Appeals:

Petitioner Nelson Collantes (hereafter, Collantes) was conferred Career

Executive Service Eligibility on 29 February 1996. Then President Fidel V. Ramos
accorded him the rank of Career Executive Service Officer (CESO) II on 10
February 1997. More than a year later, he was appointed as Undersecretary for
Peace and Order of the Department of Interior and Local Government (DILG).

With the change of administration, Collantes allegedly received word from

persons close to then President Ejercito Estrada to give up his position so that the
President could unreservedly appoint his key officials. As such, Collantes
relinquished his post at the DILG.

Thereafter, on 1 July 1998, President Estrada appointed Collantes to the

controversial post Undersecretary for Civilian Relations of the Department of
National Defense (DND). As it happened, his stint in the DND was short
lived. Collantes was supposedly ordered by then Secretary Orlando Mercado to
renounce his post in favor of another presidential appointee, General Orlando
Soriano. In deference to the Presidents prerogative, he resigned from office
believing that he will soon be given a new assignment.

Unfortunately, Collantes was not given any other post in the government,
as in fact, he received a letter from President Estrada terminating his services
effective 8 February 1999. Consequently, on 24 March 1999, Collantes requested
the assistance of the Career Executive Service Board relative to the termination of
his services as Undersecretary for Civilian Relations of the DND invoking his right
to security of tenure as a CESO.

The termination of Collantes services, notwithstanding, President Estrada

accorded Collantes the highest rank in the CES ranking structure, CESO Rank I,
on 17 July 1999.But then, despite this promotion in rank, Collantes did not receive
new appointment, and worse, the President appointed Mr. Edgardo Batenga to the
much coveted position of Undersecretary for Civilian Relations of the DND.

Taking definite action on the matter, Collantes instituted a Petition for Quo
Warranto and Mandamus before Us on 29 January 2001, docketed as C.A. G.R. SP
NO. 62874.Collantes maintained that he was constructively dismissed from work,
without any cause and due process of law, and thus, his position in the DND was
never vacated at all.Accordingly, he prayed that the appointment of Mr. Edgardo
Batenga be nullified, and that he be reinstated to his former position with full back
salaries. Notably, Collantes also sought for appointment to a position of equivalent
rank commensurate to his CESO Rank I if reinstatement to his former position is
no longer legally feasible.

Meanwhile, on 13 August 2001, the CSC favorably acted on Collantes

letter-request issuing Resolution No. 011364, and thereby holding that Collantes
relief as Undersecretary of DND amounted to illegal dismissal as he was not given
another post concomitant to his eligibility.

Then, on 30 August 2001, We rendered Our Decision in C.A. G.R. SP No.

62874 dismissing the Petition for Quo Warranto and Mandamus filed by
Collantes. Significantly, We pronounced:

By such actuations of the petitioner, the Court finds that he

has (sic) effectively resigned from his position as Undersecretary of
the DND, and the public respondents are under no compulsion to
reinstate him to his old position.

xxxx

In this case, petitioner has undoubtedly shown his intention

to relinquish his public office, and has in fact surrendered such post
to the Chief Executive, who, on the other hand, has shown his
acceptance of the same by appointing a new person to the position
relinquished by the petitioner.

xxxx

Quo warranto, it must be pointed out, is unavailing in the

instatnt case, as the public office in question has not been usurped,
intruded into or unlawfully held by the present occupant. Nor does
the incumbent undersecretary appear to have done or suffered an act
which forfeits his assumption. (Section 1, Rule 66, 1997 Rules of
Civil Procedure). Furthermore, it appears that the action for quo
warranto, assuming it is available, has already lapsed by
prescription, pursuant to Section 11 of the pertinent Rule ...

xxxx

WHEREFORE, premises considered, the instant petition for

Quo Warranto and Mandamus is hereby DISMISSED.
 The controversy reached the Supreme Court as G.R. No.
149883. Nevertheless, the case was considered closed and terminated when
Collantes manifested his desire not to pursue his appeal and withdraw his Petition
for Review on Certiorari. Thereafter, Collantes moved for the execution of CSC
Resolution No. 011364, which was accordingly granted through CSC Resolution
No. 020084 dated 15 January 2002 directing the DND to give Collantes a position
where his eligibility is appropriate and to pay his backwages and other benefits
from the time of his termination up to his actual reinstatement.

In a Letter dated 7 February 2002, the Legal Affairs Division of the DND,
through Atty. Leticia A. Gloria, urged the CSC to revisit its Resolutions which were
entirely in conflict with Our 30 August 2001 Decision in C.A. G.R. SP NO. 62874,
which has attained finality pursuant to the Supreme Courts Resolution in G.R. No.
149883.

Consequently, in complete turnabout from its previous stance, the CSC

issued Resolution No. 021482 dated 12 November 2002 declaring that had it been
properly informed that a Petition for Quo Warranto and Mandamus was then
pending before Us, it would have refrained from ruling on Collantes quandary, thus:

WHEREFORE, the Motion for Reconsideration of Assistant

Secretary for Legal Affairs Leticia A. Gloria of the department of
National Defense (DND) is hereby GRANTED and CSC
Resolutions Nos. 01-1364 dated August 13, 2001 and 02-0084
dated January 15, 2002 are reversed. Accordingly, pursuant to the
decision of the Court of Appeals, Nelson P. Collantes is deemed
effectively resigned from his position as Undersecretary of the
DND.

Forthwith, Collantes moved for a reconsideration of this Resolution, but

was denied by the CSC in the second assailed Resolution No. 030542 dated 5 May
2003.[4]

On 18 July 2003, herein petitioner Collantes then filed a Petition

for Certiorari with the Court of Appeals praying for the reversal of the Civil Service
Commission (CSC) Resolutions No. 021482 and No. 030542. Before the Court of
Appeals can decide this case, however, petitioner was appointed as General Manager
of the Philippine Retirement Authority on 5 August 2004. The Court of Appeals
dismissed the Petition for Certiorari in the assailed 10 March 2005 Decision:

WHEREFORE, the Petition for Certiorari is hereby DISMISSED. No

grave abuse of discretion may be imputed against the Civil Service Commission for
rendering Resolution Nos. 021482 and 030542, dated 12 November 2002 and 5
May 2003, respectively. No pronouncement as to costs.[5]
 The Motion for Reconsideration filed by petitioner was denied in the
assailed 31 August 2005 Resolution.[6]

Petitioner filed the present Petition for Review, seeking the reversal of the
foregoing Decision and Resolution of the Court of Appeals. In view of his 5 August
2004 appointment, however, petitioners prayer is now limited to seeking the
payment of backwages and other benefits that may have been due him from the time
of his alleged dismissal on 8 February 1999 to his appointment on 5 August
2004. Petitioner submits the following issues for our consideration:

A.

WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND

REVERSIBLE ERROR WHEN IT HELD THAT THE DECISION IN CA-G.R.
NO. 62874 IN THE COURT OF APPEALS IS A BAR TO IMPLEMENT THE
FINAL AND EXECUTORY JUDGMENT OF THE CIVIL SERVICE
COMMISSION DATED AUGUST 14, 2001.

B.

WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND

REVERSIBLE ERROR WHEN IT DID NOT FIND THAT THE CIVIL SERVICE
COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
REVERSED ITS VERY OWN DECISION WHICH HAS LONG BECOME
FINAL AND EXECUTORY AND IN FLAGRANT VIOLATION OF
PETITIONERS RIGHT TO DUE PROCESS.

C.

WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND

REVERSIBLE ERROR WHEN IT UPHELD THE RESOLUTION OF THE
CIVIL SERVICE COMMISSION WHICH HELD THAT PETITIONER MAY BE
REMOVED FROM HIS POSITION AS UNDERSECRETARY OF THE
DEPARTMENT OF NATIONAL DEFENSE WITHOUT THE CONCOMITANT
TRANSFER TO A POSITION EQUIVALENT IN RANK OR BE REMOVED
THEN, BE FLOATED PERPETUALLY, WHICH IS TANTAMOUNT TO A
CONSTRUCTIVE DISMISSAL, IN VIOLATION OF HIS RIGHT TO
SECURITY OF TENURE AS A CAREER EXECUTIVE SERVICE ELIGIBLE.[7]
 Both petitioner and herein respondents CSC and Department of National
Defense (DND) invoke the doctrine of immutability of final judgments.

Petitioner claims that the 13 August 2001 Resolution of the CSC, which held
that petitioner was illegally removed as Undersecretary of the Department of
National Defense and therefore x x x should be given a position where his eligibility
is appropriate or sufficient, has attained finality. Petitioner adds that, not only has
there been no appeal or motion for reconsideration filed within the allowable
periods, the CSC even granted the Motion for Execution filed by petitioner in its
Order dated 15 January 2002. Petitioner thereby invokes our ruling that, before a
writ of execution may issue, there must necessarily be a final judgment or order that
disposes of the action or proceeding.[8] Petitioner also faults the CSC for ruling on a
mere letter filed by Atty. Leticia Gloria of the DND, which petitioner claims is
fatally defective for failure to comply with the procedural due process clause of the
Constitution, the Rules of Court, and the Uniform Rules in Administrative Cases in
the Civil Service which require notice to adverse parties.[9]

Respondents, on the other hand, invoke the same doctrine of immutability of

final judgments, this time with respect to the 30 August 2001 Decision of the Court
of Appeals dismissing the Petition for Quo Warranto and Mandamus filed by
petitioner. This Court of Appeals Decision became final and executory when
petitioner withdrew the Motion for Extension to File a Petition for Review
on Certiorari he filed with this Court.[10]

Forum Shopping, Res Judicata, and Litis Pendentia

Our rules on forum shopping are meant to prevent such eventualities as

conflicting final decisions as in the case at bar. We have ruled that what is important
in determining whether forum shopping exists or not is the vexation caused the
courts and parties-litigants by a party who asks different courts and/or administrative
agencies to rule on the same or related causes and/or grant the same or substantially
the same reliefs, in the process creating the possibility of conflicting decisions being
rendered by the different fora upon the same issues.[11]

More particularly, the elements of forum shopping are: (a) identity of parties
or at least such parties as represent the same interests in both actions; (b) identity of
the rights asserted and the reliefs prayed for, the relief being founded on the same
facts; and (c) the identity of the two preceding particulars, such that any judgment
rendered in the other action will, regardless of which party is successful, amount
to res judicata in the action under consideration.[12]
 Forum shopping can be committed in three ways: (1) filing multiple cases
based on the same cause of action and with the same prayer, the previous case not
having been resolved yet (where the ground for dismissal is litis pendentia); (2)
filing multiple cases based on the same cause of action and the same prayer, the
previous case having been finally resolved (where the ground for dismissal is res
judicata); and (3) filing multiple cases based on the same cause of action but with
different prayers (splitting of causes of action, where the ground for dismissal is also
either litis pendentia or res judicata).[13] If the forum shopping is not considered
willful and deliberate, the subsequent cases shall be dismissed without prejudice on
one of the two grounds mentioned above. However, if the forum shopping is willful
and deliberate, both (or all, if there are more than two) actions shall be
dismissed with prejudice.[14]

Petitioner disputes respondents claim, and the CSCs ruling,[15] that he had
lodged two separate actions. Petitioner explains that he never filed a case before the
CSC. He merely sought the assistance of the Career Executive Service Board
(CESB) in a letter-request dated 24 March 1999. Said letter-request, petitioner
claims, did not ask for any ruling.

Petitioner claims that, considering that two years had already lapsed without
any response from the CESB, he filed on 23 January 2001 his Petition for Quo
Warranto and Mandamus with the Court of Appeals. Petitioner was surprised when
he learned through the 8 February 2001 letter of the CESB that, on 29 November
2000, it referred petitioners request to the CSC for appropriate action.[16] Petitioner
was not required to submit any pleading in support of his request. Apparently, the
CSC treated the letter-request as a complaint or petition over which it could exercise
its adjudicative powers, as it issued its 13 August 2001 Resolution declaring
petitioner to have been illegally removed as Undersecretary of the DND, and should
therefore be given a position appropriate or sufficient for his eligibility.[17] As stated
above, the Court of Appeals Decision dismissing the Petition for Quo
Warranto and Mandamus was rendered 17 days later, on 30 August 2001. Petitioner
filed with this Court a motion for an extension of time within which to file a Petition
for Review on Certiorari, but he later submitted a Manifestation for the withdrawal
of this motion as he decided not to pursue his appeal.[18] Instead, petitioner filed with
the CSC on 25 October 2001 a Motion for the Issuance of a Writ of
Execution,[19] which the CSC granted on 15 January 2002.[20]

In repeatedly asserting that he did not file two separate actions, petitioner is arguing,
without stating it categorically, that he cannot be held liable for forum
shopping.However, what one cannot do directly cannot be done indirectly. Petitioner
had been aware, through the 8 February 2001 letter of the CESB, that his request for
assistance was referred to the CSC on 29 November 2000 for appropriate
action. From that point on, he knew that two government agencies the CSC and the
Court of Appeals were simultaneously in the process of reaching their respective
decisions on whether petitioner was entitled to reinstatement or to a position
appropriate to his eligibility. Therefore, it cannot be denied that petitioner knew,
from the moment of receipt of the 8 February 2001 letter of the CESB, that he had
effectively instituted two separate cases, and whatever original intention he had for
his letter-request is, by then, forgotten. Petitioner subsequently proceeded to act like
a true forum shopper he abandoned the forum where he could not get a favorable
judgment, and moved to execute the Resolution of the forum where he succeeded.

Petitioners above actuation is, in fact, a violation of his certification against

forum shopping with the Court of Appeals, a ground for dismissal of actions distinct
from forum shopping itself. As petitioner knew from the receipt of the CESB letter
that another claim was pending in a quasi-judicial agency concerning these issues,
he was bound by his certification with the Court of Appeals to report such fact within
five days from his knowledge thereof. This circumstance of being surprised by the
discovery of another pending claim with another court or quasi-judicial agency is
the very situation contemplated by letter (c) in the first paragraph of Section 5, Rule
7 of the Rules of Court:

Section 5. Certification against forum shopping. The plaintiff or principal

party shall certify under oath in the complaint or other initiatory pleading asserting
a claim for relief, or in a sworn certification annexed thereto and simultaneously
filed therewith: (a) that he has not theretofore commenced any action or filed any
claim involving the same issues in any court, tribunal or quasi-judicial agency and,
to the best of his knowledge, no such other action or claim is pending therein; (b)
if there is such other pending action or claim, a complete statement of the present
status thereof; and (c) if he should thereafter learn that the same or similar action
or claim has been filed or is pending, he shall report that fact within five (5) days
therefrom to the court wherein his aforesaid complaint or initiatory pleading has
been filed. (Emphases supplied.)

Petitioner, however, further asserts that the issues brought in the Petition
for Certiorari filed with the Court of Appeals on 18 July 2003 and the Petition
for Quo Warranto and Mandamus filed on 29 January 2001 are distinct, and that the
Decision of the Court of Appeals in the latter cannot constitute res judicata with
respect to the former.[21] Petitioner claims that the issues, remedies and reliefs in the
two cases are different, citing as basis the textbook definitions of quo
warranto, certiorari and mandamus. Petitioner further claims that:

There is a clear distinction between the right of petitioner to the position of

Undersecretary for Civilian Relations and his right to be re-appointed to another
position of equivalent rank, in view of his CESO I status. The former issue may
have been resolved by the Court of Appeals when it ruled that petitioner Collantes
had effectively resigned from his position as Undersecretary of the DND, and the
public respondents are under no compulsion to reinstate him to his old position. The
latter issue, or the right of petitioner Collantes to be given a new assignment fitting
to his CESO I rank, arises from his right to security of tenure as a Career Executive
Service Eligible, and not from his appointment to the DND.[22]

This allegedly clear distinction springs from petitioners claim that he resigned
from his position, but not from his rank as a Career Executive Service Officer
(CESO). Petitioner claims that, as a CESO, there is a great difference between (1)
resigning from ones position and (2) resigning or relinquishing ones rank, as position
is different from ones rank. POSITION refers to the particular or specific office from
which one may be appointed. RANK, on the other hand, refers not to a particular
position but to the class to which one belongs in the hierarchy of authority in an
organization or bureaucracy.[23] Petitioner cites Cuevas v. Bacal[24]:

[S]ecurity of tenure to members of the CES does not extend to the particular
positions to which they may be appointed --- a concept which is applicable only to
the first and second-level employees in the civil service --- but to the rank to which
they are appointed by the President.

xxxx

Mobility and flexibility in the assignment of personnel, the better to cope with the
exigencies of public service, is thus the distinguishing feature of the Career
Executive Service. x x x.

and General v. Roco[25]:

In addition, it must be stressed that the security of tenure of employees in

the career executive service (except first and second-level employees in the civil
service), pertains only to rank and not to the office or to the position to which they
may be appointed. Thus, a career executive service officer may be transferred or
reassigned from one position to another without losing his rank which follows him
wherever he is transferred or reassigned. In fact, a CESO suffers no diminution of
 salary even if assigned to a CES position with lower salary grade, as he is
compensated according to his CES rank and not on the basis of the position or office
he occupies.

While there is indeed a distinction between position and rank, such that a
CESO may be transferred or reassigned from one position to another without losing
his rank, there can be no distinction between resigning from a position and resigning
from a rank. The rank of a CESO is deactivated upon separation from the
government service, which includes the resignation of a CESO from his
position. The CESB has clarified this concept of being in the inactive status in its
Resolution No. 554, series of 2002:
Rule II

xxxx

7. CESO in Inactive Status - is a CESO who no longer occupies a position

in the CES as a result of any of the modes of separation from the government
service, provided that such separation is not due to dismissal from the service for
cause.

xxxx

Rule IV

Section 1. Modes of Deactivating a CES Rank. There are three (3) modes
by which the CES Rank of a CESO may be deactivated from the CES:

1. Acceptance of a position by virtue of an appointment outside the

coverage of the CES;

2. Dropping from the rolls of government officials and employees;

and

3. Other modes of separation from the CES, provided that separation

from the CES resulting from dismissal from the service for cause
and after due process shall result in the loss of CES rank and shall
not be considered as a mode of deactivation.

xxxx
 Sec. 2. Effect of Deactivation of CES Rank. A CESO whose CES rank has been
deactivated by the Board loses all the rights and privileges accorded to him/her by
law on account of his/her CES rank.

Likewise, it would be absurd for us to rule that a civil servant who resigns
from his position can compel the President to appoint him to another position. Such
a ruling would effectively derogate the discretion of the appointing authority, [26] as
it will give the CESO the option to choose which position he or she wants, by the
simple expediency of resigning from the position he or she does not want.

In sum, there is an identity of issues in the two cases which resulted in the two
conflicting final and executory decisions. But while, as stated above, the second
petition can be dismissed on the ground of either res judicata or non-compliance
with the undertakings in petitioners certification against forum shopping, these
grounds can only be invoked when the case is still pending. As petitioner points out,
the Resolution of the CSC had already become final and executory.

The 30 August 2001 Decision of the Court of Appeals, however, has also
attained finality. Hence, we go back to the main issue in this petition: which of the
two final and executory decisions should be given effect, the 30 August 2001 Court
of Appeals Decision dismissing the petitioners Petition for Quo Warranto, or the 13
August 2001 CSC Resolution declaring petitioner Collantes to be illegally removed
as Undersecretary of the DND?

Two Conflicting Final and Executory Decisions

Jurisprudence in the United States offers different solutions to this problem:

Where there have been two former actions in which the claim or demand,
fact or matter sought to be religated has been decided contrarily, the rule that, where
there is an estoppel against an estoppel, it setteth the matter at large has been applied
by some authorities, and in such case both parties may assert their claims
anew. Other authorities have held that, of two conflicting judgments on the same
rights of the same parties, the one which is later in time will prevail, although it has
also been held that the judgment prior in time will prevail. It has been held that a
decision of a court of last resort is binding on the parties, although afterward, in
another cause, a different principle was declared.[27]

There are thus three solutions which we can adopt in resolving the case at bar:
the first is for the parties to assert their claims anew, the second is to determine which
judgment came first, and the third is to determine which of the judgments had been
rendered by a court of last resort.

As there are conflicting jurisprudence on the second solution, it is appropriate

for this Court to adopt either the first or the third solution. The first solution involves
disregarding the finality of the two previous judgments and allowing the parties to
argue on the basis of the merits of the case anew. The third solution merely involves
the determination of which judgment has been rendered by this Court, the court of
last resort in this jurisdiction.

Adopting the third solution will result in the denial of this Petition
for Certiorari. Whereas the finality of the 13 August 2001 CSC Resolution came
about by the failure to file a motion for reconsideration or an appeal within the proper
reglementary periods, the finality of the 30 August 2001 Court of Appeals Decision
was by virtue of the 12 November 2001 Resolution[28] of this Court which declared
the case closed and terminated upon the manifestation of petitioner that he decided
not to pursue his appeal and was thus withdrawing the motion for extension of time
to file a petition for review on certiorari.

The better solution, however, is to let the parties argue the merits of the case
anew, and decide the case on the basis thereof. We can do this either by remanding
the case to a lower court, or by resolving the issues in this disposition. The latter
recourse is more appropriate, for three reasons: (1) all the facts, arguments, and
pleadings in support of the parties contentions are now before us, with the parties
advancing the very same contentions as those in this Petition; (2) a remand to the
Court of Appeals would entail asking the latter to resolve the very same issues it had
passed upon twice; and (3) a remand to the Court of Appeals would only entail
another unnecessary delay in the termination of the case when the case is now ripe
for adjudication before us.
The merits of the case are the focus of petitioners third assignment of error in
the present petition. Petitioner claims that the Court of Appeals committed a grave
and reversible error when it upheld the resolution of the CSC which allegedly
effectively held that petitioner may be removed from his position as Undersecretary
of the Department of National Defense without the concomitant transfer to a position
equivalent in rank or be removed then, be floated perpetually, which is tantamount
to a constructive dismissal, in violation of his right to security of tenure as a career
executive service eligible.[29]

Petitioners arguments presuppose that he had been removed from his position
as Undersecretary of the DND. He, however, did not present any evidence to that
effect, whether in this Petition or in his earlier Petition for Quo
Warranto and Mandamus with the Court of Appeals. If he is implying that he was
removed from office by virtue of his account that he was approached by persons
close to President Joseph Estrada who asked him to relinquish his post, which he
did, then this Petition must fail, for, by his own deliberate deed, he resigned from his
position.

There are no special legal effects when a resignation is one of a courtesy

resignation. The mere fact that the President, by himself or through another,
requested for someones resignation does not give the President the obligation to
appoint such person to another position. A courtesy resignation is just as effectual
as any other resignation. There can be no implied promises of another position just
because the resignation was made out of courtesy. Any express promise of another
position, on the other hand, would be void, because there can be no derogation of
the discretion of the appointing power,[30] and because its object is outside the
commerce of man.[31] As held by the Court of Appeals in its 30 August
2001 Decision:

In the first place, petitioner has not established by any quantum of certainty
the veracity of his claim that he was promised an equivalent position in the
government.Assuming, however, that such promise was true, petitioner, as a
ranking member of the bureaucracy, ought to have known that such promise offers
no assurance in law that the same would be complied with. The time-honored rule
is that public office is a public trust, and as such, the same is governed by law, and
cannot be made the subject of personal promises or negotiations by private
persons.[32]

WHEREFORE, the present Petition for Review

on Certiorari is DENIED. No costs.