Cases Set 1 Digest
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SOPHIA ALAWI vs. ALAWI vs.ASHARY ASHARY M. ALAUYA ALAUYA,, Clerk of Court VI, Shari'a Distrit Court, Marawi City A.M. !o. SDC"#$"%"P &eruar( %), *##$ &ats+ Sophia Alawi was (and presumably still is) a sales representative (or coordinator) of E.B. illarosa ! "artners Co., #td. of $avao City, a real estate and housin% company. Ashari M. Alauya Alauya is the incumbent e&ecutive cler' of court of the th udicial Shari*a $istrict in Marawi City, +hey were classmates, and used to be friends. t appears that throu%h Alawi*s a%ency, a contract was e&ecuted for the purchase on installments by Alauya of one of the housin% units belon%in% to the above mentioned firm- and in connection therewith, a housin% loan was also %ranted to Alauya by the ational /ome Mort%a%e 0inance Corporation (/M0C). 1n $ecember 23, 2443, Alauya addressed a letter to the "resident of illarosa ! Co. advisin% of the termination of his contract with the company on the %rounds that her consent was vitiated by %ross misrepresentation, deceit, fraud, dishonesty and abuse of confidence by the aforesaid sales a%ent which made said contract void ab initio. initio. Alauya sent a copy of the the letter to the ice5"resident ice5"resident of illarosa illarosa ! Co. at San "edro, "edro, 6usa, Ca%ayan de 1ro City. City. +he envelope containin% it, and which actually went throu%h the post, bore no stamps. nstead at the ri%ht hand corner above the description of the addressee, the words, 7Free 7 Free Postage - PD 26 ,7 ,7 had been typed. 1n the same date, Alauya also wrote to Mr. 0ermin +. Ar8a%a, ice5"resident, ice5"resident, Credit ! Collection 6roup of the ational /ome Mort%a%e 0inance Corporation (/M0C) arepudiatin% as fraudulent and void his contract with illarosa ! Co.- and as'in% for cancellation of his housin% loan in connection therewith, which was payable from salary deductions at the rate of ",99:.;; a month. 1n learnin% of Alauya*s letter to illarosa ! Co. of $ecember 23, 2443, Sophia Alawi filed with the Supreme Court a verified complaint to which she appended a copy of the letter, and of the above mentioned envelope bearin% the typewritten words, 7Free 7 Free Postage - PD 26 .7 .7 n that complaint, she accused Alauya of< 2. 7mputation of malicious and libelous char%es with no solid %rounds throu%h manifest i%norance and evident bad faith-7 =. 7Causin% undue in>ury to, and blemishin% her honor and established reputation-7 9. 7?nauthori8ed en>oyment of the privile%e of free posta%e . . .-7 and . ?surpation of the title of 7attorney,7 which only re%ular members of the "hilippine Bar may properly use. Ruli-+ +he Code of Conduct and Ethical Standards for "ublic 1fficials and Employees (@A 29) inter alia enunciates alia enunciates the State policy of promotin% a hi%h standard of ethics and utmost responsibility in the public service. * Section of the Code commands that 7(p)ublic officials and employees . . at all times respect the ri%hts of others, and . . refrain from doin% acts contrary to law, %ood morals, %ood customs, public policy, public order, public public safety and public interest.7 *$More than once has this Court emphasi8ed that 7the conduct and behavior of every official and employee of an a%ency involved in the administration of >ustice, from the presidin% >ud%e to the most >unior cler', should be circumscribed with the heavy burden of responsibility. +heir conduct must at all times be characteri8ed b y, amon% others, strict propriety and decorum so as to earn and 'eep the respect of the public for the >udiciary.7 >udiciary.7 */ t does not appear to the Court consistent with %ood morals, %ood customs or public policy, or respect for the ri%hts of others, to couch denunciations of acts believed however sincerely to be deceitful, fraudulent or malicious, in e&cessively intemperate, insultin% or virulent lan%ua%e. Alauya is evidently convinced that he has a ri%ht of action a%ainst Sophia Alawi. +he law reDuires that he e&ercise that ri%ht with propriety, without malice or vindictiveness, or undue harm to anyone- in a manner consistent with %ood morals, %ood customs, public policy, public order, suprasupra- or otherwise stated, that he 7act with >ustice, %ive everyone his due, and observe honesty and %ood faith.7 @i%hteous indi%nation, or vindication of ri%ht cannot >ustify resort to vituperative lan%ua%e, or downri%ht name5callin%. As As a member of the Shari*a Bar and an officer of a Court, Alawi is sub>ect to a standard of conduct more strin%ent than for most other %overnment wor'ers. As a man of the law, he may not use lan%ua%e which is abusive, offensive, scandalous, menacin%, or otherwise improper. As a >udicial employee, it is e&pected that he accord respect for the person and the ri%hts of others at all times, and that his every act and word should be characteri8ed by prudence, restraint, courtesy, courtesy, di%nity. di%nity. /is radical deviation from these salutary norms mi%ht perhaps be miti%ated, but cannot be e&cused, by his stron%ly held conviction that he had been %rievously wron%ed. As re%ards Alauya*s Alauya*s use of the title of of 7Attorney,7 7Attorney,7 this Court has already had occasion to declare declare that persons who pass the Shari*a Bar are not full5fled%ed members of the "hilippine Bar, hence may only practice law before Shari*a courts. %* hile one who has been admitted to the Shari*a Bar, and one who has been admitted to the "hilippine Bar, may
both be considered 7counsellors,7 in the sense that they %ive counsel or advice in a professional capacity, capacity, only the latter is an 7attorney.7 7attorney.7 +he title of 7attorney7 is reserved to those who, havin% obtained the necessary de%ree in the study of law and successfully ta'en the Bar E&aminations, have been admitted to the nte%rated Bar of the "hilippines and remain members thereof in %ood standin%- and it is they only who are authori8ed to practice law in this >urisdiction.
/E@E01@E, respondent Ashari M. Alauya is hereby @E"@MA$E$ for the use of e&cessively intemperate, insultin% or virulent lan%ua%e, i .e., lan%ua%e unbecomin% a >udicial officer, officer, and for usurpin% the title of attorney- and he is warned that any similar or other impropriety or misconduct in the future will be dealt with more severely.
R0+ R0POR1 O! 1H0 &I!A!CIAL AUDI1 CO!DUC10D O! 1H0 2OO3S O& ACCOU!1S O& A11Y. A11Y. RA4U0L 5. 3HO, CL0R3 O& COUR1 IV, R05IO!AL 1RIAL COUR1, ORAS, 0AS10R! SAMAR .
A.M. !o. P"6"%*$$ 7ue %$, %66 8&or9erl( A.M. !o. 6")"%/"R1C: &ats+ +his administrative case is a result of the audit conducted by the 1ffice of the Court Administrator (1CA) of the boo's of accounts of Atty. @aDuel 6. Fho, former cler' of court of the @e%ional +rial Court, Branch 3, 1ras, Eastern Samar. +he audit covered the period March 24:3 to 1ctober 92, =;;3. +he 1CA, in its memorandum dated April 2:, =;;, had the followin% findin%s< (2) there was a shorta%e of"33.;; in remittances to the 6eneral 0und- (=) a cash shorta%e of "=.;; in the SheriffGs 6eneral 0und- and (9) Atty. Fho did not deposit on time in the authori8ed depository ban' the collections for the 0iduciary 0und (";, ;;;) and Special Allowance for the udiciary 0und ("3,;;;). t also noted that Atty. Fho had already restituted the "33.;; and "=.;; cash shorta%es. 1n anuary =, =;;, the 1CA received a letter5complaint with the information that Fho, alon% with his alle%ed common5law5wife, steno%rapher @i8a Amor #. #ibanan, was en%a%ed in lendin% out to court employees money in his possession as cler' of court, personally derivin% profit from the interest earned. +he 1CA found Fho liable for violatin% 1CA Circular o. :A549 when he 'ept the funds in a safety vault for more than a year. All cler's of lower courts are supposed to deposit all collections from bail bonds, rental deposits and other fiduciary collections with the #and Ban' upon receipt thereof. +hus, it recommended that (2) the audit report be doc'eted as a re%ular administrative complaint a%ainst Fho and (=) a fine in the amount of "2;,;;; be imposed on him. Issue+ 1 failure to remit the funds in due time constitutes %ross dishonesty H %ross misconduct. Ruli-+ "ublic office is a public trust. +hose char%ed with the dispensation of >ustice, from the >ustices and >ud%es to the lowliest cler's, should be circumscribed with the heavy burden of responsibility.3 ot only must their conduct at all times be characteri8ed by propriety and decorum but, above all else, it must be beyond suspicion. A cler' of court, aside from bein% the custodian of the courtGs funds, revenues, property and premises, is also entrusted with the primary responsibility of correctly and effectively implementin% re%ulations re%ardin% fiduciary funds. Safe'eepin% of funds and collections is essential to an orderly administration of >ustice and no protestation of %ood faith can override the mandatory nature of the circulars desi%ned to promote full accountability for %overnment funds. Cler's of court have always been reminded of their duty to immediately deposit the various funds received by them to the authori8ed %overnment depositories for they are not supposed to 'eep funds in their custody. Fho failed to ma'e a timely turn5over of cash deposited with him. +his was ine&cusable because he could have purchased postal money orders from the local post office payable to the chief accountant, Accountin% $ivision, 0M151CA. +he money could have earned interest had he not 'ept them in the vault for over a year. As found by the 1CA, althou%h Fho had restituted all his cash accountabilities, he was nevertheless liable for failin% to immediately deposit the collections for the >udiciary funds. +he failure to re9it the fu;s i ;ue ti9e ostitutes -ross ;ishoest( a; -ross 9iso;ut. t diminishes the faith of the people in the udiciary. $ishonesty, bein% in the nature of a %rave offense, carries the e&treme penalty of dismissal from the service even if committed for the first time. /owever, Fho showed remorse by immediately restitutin% the cash shorta%es and complyin% with the directives of the audit team. And considerin% that this is his first offense, we find that the penalty of "2;, ;;; fine is sufficient.
A!A A. CHUA a; MARC0LI!A HSIA vs. A11Y. SIM0O! M. M0SI!A, 7R., A.C. !o. )#6)
Au-ust *%, %66)
P0R CURIAM+ By a verified complaint 2 received by the 1ffice of the Bar Confidant on May 3, 244:, = Ana Alvaran Chua and Marcelina /sia administratively char%ed Atty. Simeon M. Mesina, r., for breach of professional ethics, %ross professional misconduct, and culpable malpractice. &ats+ @espondent was, for years, Ana Alvaran Chua and her now deceased husband Chua Iap AnGs le%al counsel and adviser upon whom they reposed trust and confidence. +hey were in fact lessees of a buildin% situated at Bur%os Street, Cabanatuan City (Bur%os property) owned by respondentGs family, and another property containin% an area of :3 sD. m., situated at Melencio Street, Cabanatuan City (Melencio property), also owned by respondentGs family whereon they (spouses Chua) constructed their house. +hese two properties were mort%a%ed by the re%istered owner, respondentGs mother 0elicisima Melencio vda. de Mesina (Mrs. Mesina), in favor of the "lanters $evelopment Ban' to secure a loan she obtained. As Mrs. Mesina failed to meet her obli%ation to the ban', respondent convinced complainant Ana Chua and her husband to help Mrs. Mesina by way of settlin% her obli%ation in consideration for which the Melencio property would be sold to them at ":3;.;;HsD. m. Accommodatin% respondentGs reDuest, the spouses Chua and their business partner, herein co5complainant Marcelina /sia, settled Mrs. MesinaGs ban' obli%ation in the amount of "4:9,2=3.;. A $eed of Absolute Sale dated anuary 24, 24:3 9 conveyin% the Melencio property for ":3,;;.;; was thereafter e&ecuted by Mrs. Mesina, whose name appears therein as 70elicisima M. Melencio,7 in favor of complainants. As complainants were later apprised of the amount of capital %ains ta& they were to pay, they consulted respondent about it. @espondent thus su%%ested to them that another $eed of Absolute Sale should be e&ecuted, antedated to 244 before the effectivity of the law mandatin% the payment of capital %ains ta&. As su%%ested by respondent, another $eed of Absolute Sale antedated 0ebruary 4, 244 was e&ecuted by Mrs. Mesina, whose name a%ain appears therein as 70elicisima M. Melencio,7 in favor of complainants wherein the purchase price was also indicated to be ":3,;;.;;. After liDuidatin% the advances made by the Chua spouses 7in the redemption of the MESA properties,7 Mrs. Mesina was found to have 7an e&istin% balance7 due the spouses in the amount of " ;;,;;;.;;, on account of which they advised respondent about it. @espondent, by Affidavit of 0ebruary 2:, 24:, 7ac'nowled%ed such obli%ation7 to be his and undertoo' to settle it within two years. Complainants were subseDuently issued on anuary =2, 24: a title over the Melencio property. ot lon% after the e&ecution of the 0ebruary 4, 244 $eed of Absolute Sale or in 0ebruary 24:, one uanito +ecson (+ecson) filed an Affidavit 3 dated 0ebruary =;, 24: before the Cabanatuan City "rosecutorGs 1ffice char%in% respondentGs mother, the spouses Chua, Marcelina /sia and the two witnesses to the said $eed of Absolute Sale, for 0alsification of "ublic $ocument and violation of the nternal @evenue Code. n his complaint affidavit, +ecson alle%ed that he was also a lessee of the Melencio property and was, alon% with the Chua spouses, supposed to purchase it but that contrary to their a%reement, the property was sold only to complainant and her co5complainant, to his e&clusion. +ecson went on to relate that the 0ebruary 4, 244 $eed of Absolute Sale did not reflect the true value of the Melencio property and was antedated 7to evade payment of capital %ains ta&.7 +ecson submitted documents showin% that indeed the uly 4, 244 $eed of Absolute Sale was antedated. @espondent thereupon hatched a plan to dod%e the falsification char%e a%ainst Mrs. Mesina et al. /e proposed to complainants that they would simulate a deed of sale of the Melencio property wherein complainants would resell it to Mrs. Mesina. /eedin% the proposal of respondent, complainants e&ecuted a $eed of Absolute Sale dated April 2, 24: conveyin% to 70elicisima M. Melencio7 the Melencio property for ":3,;;.;;. A new title was accordin%ly issued on April , 24: in the name of 70elicisima M. Melencio,7 the ownerGs copy of which was entrusted to complainants. +ecson subseDuently filed before the Cabanatuan City "rosecutorGs 1ffice an Affidavit of $esistance dated September 3, 24: alle%in% that his filin% of the criminal complaint 7arose out of mere misunderstandin% and difference7 with herein complainants and their co5respondents and he had no sufficient evidence a%ainst them. Some years later or on May =, 244;, respondent approached complainants and told them that he would borrow the ownerGs copy of Mrs. MesinaGs title with the underta'in% that he would, in four months, let Mrs. Mesina e&ecute a
deed of sale over the Melencio property in complainantsG favor. n fact, respondent %ave complainants a written underta'in%: dated May =, 244; readin%< @eceived the ownerGs duplicate copy of +C+ o. 9:9 issued by the @e%ister of $eeds, Cabanatuan City re%istered in the name of 0elicisima Mesina, widow, consistin% of about :3 sDuare meters more or less located at calle Melencio, Cabanatuan City from Mrs. Ana Chua and Marcelina /sia. promise to and underta'e to have the $eed of Sale of the above5mentioned property in favor of Ana Chua and Marcelina /sia to be si%ned by Mrs. 0elicisima Mesina, within four () months from date hereof so that the above5mentioned property and title maybe transferred in the name of Ana Chua and Macelina /sia. (?nderscorin% supplied) n the meantime, Mrs. Mesina died 7in the early part of 2442.7 $espite respondentGs repeated promises 7to effect7 the transfer of title in complainantsG name, he failed to do so. Complainants were later informed that the Melencio property was bein% offered for sale to the public. +he spouses Chua and complainant Marcelina /sia thus filed on Au%ust =, 244= a Complaint 4 a%ainst respondent and his two siblin%s before the @e%ional +rial Court (@+C) of ueva Eci>a in Cabanatuan City, for 7$eclaration of ullity of Sale and @econveyance of @eal "roperty.7 As of the time of the filin% of the present administrative complaint in 244:, the civil case a%ainst the Mesina siblin%s was still pendin%. +his Court, by @esolution of uly 29, 244:,2; directed respondent to file Comment on the complaint within ten days. By @esolution of $ecember =, 244:, 22 this Court, notin% that the copy of the @esolution of uly 29, 244: reDuirin% respondent to comment on the complaint sent to him at his office address at S. M. Mesina #aw 1ffice, 9; upiter St., "aseo de @o&as, Bel5Air Subd., Ma'ati City was returned unserved with the notation 7Moved,7 considered the @esolution of uly 29, 244: served on respondent by substituted service pursuant to @ule 29, Section : of the 244 @ules of Civil "rocedure. @espondent was accordin%ly deemed to have waived the filin% of the reDuired comment. By the same @esolution of $ecember =, 244:, the case was referred to the nte%rated Bar of the "hilippines (B") for investi%ation, report and recommendation within ninety days. +he B", actin% on the complaint, issued a notice of hearin% on September 2, =;;2, 2= copy of which was sent to respondent at his office address via re%istered mail, covered by @e%istry @eceipt o. =;3 of the Meralco "ost 1ffice.29 1n the scheduled date of hearin%, complainants personally appeared with their counsel. @espondent failed to show up. 6iven the len%th of time that the case remained pendin% from its filin%, the B" Commission on Bar $iscipline, by 1rder of 1ctober 2=, =;;2, 2 directed complainants to >ust file their position paper with affidavits and supportin% documents in lieu of actual presentation of witnesses and to serve a copy thereof to respondent at his last 'nown address. n compliance with the B" 1rder, complainants filed on April 2, =;;= their position paper, 23 anne&ed to which were photocopies of< 2) a May 3, 2449 Certification 2 issued by the Metroban' Cabanatuan Branch certifyin% that 7it issued the demand drafts to the payees enumerated below, which were debited from the account of Mr. Chua Iap An under Savin%s Account o. ;< $H$ o.
"ayee
Amount
$ate of ssue
=234
"lanters $ev. Ban'
" :;3,=44.3
2=5245:3
=2;
"lanters $ev. Ban'
2;;,;;;.;;
;2525:
=22
Atty. Simeon Mesina, r.
,:=.2;
;2525:7-
=) Affidavit dated 0ebruary 2:, 24: 2 of respondent ac'nowled%in% a debt of ";;,;;;.;; to complainant Ana Alvaran Chua and promisin% to pay interest thereon within = years to commence upon the si%nin% thereof J0ebruary 2, 244:K and, in the event no partial or full payment of the principal is made within = years, Ana Alvaran Chua 7is under no obli%ation to pay any lease rentals over the lot situated in Bur%os Avenue, Cabanatuan City where the 1ceanic /ardware Bld%. is erected-7 9) $eed of Absolute Sale dated anuary 24, 24:3 2: and ) $eed of Absolute Sale dated uly 4, 244, 24 both e&ecuted by 70elicisima M. Melencio7 in favor of complainant- 3) +C+ o. +5 :22=; issued by the Cabanatuan City in the name of complainants on anuary =2, 24:- ) Affidavit of uanito C. +ecson=2 dated anuary =;, 24: char%in% complainants et al. for 0alsification of "ublic $ocuments- ) $eed of Absolute Sale dated April 2, 24: e&ecuted by complainants in favor of Mrs. Mesina- == and :) +C+ o. +5 :9:9issued on April , 24: in the name of 70elicisima M. Melencio-7 =9 and 4) Complaint of spouses Chua Iap An
and Ana Alvaran Chua and Marcelina /sia, for $eclaration of ullity of $eed of Sale and @econveyance of @eal "roperty a%ainst respondent and his two siblin%s. = A copy of complainantGs position paper was sent on March 2:, =;;= to respondent at his office address by re%istered mail covered by @e%istry @eceipt o. 3=:. =3 +here is no showin% if respondent received this mail matter. +he B" once more scheduled, by notice of $ecember 29, =;;=, = a hearin% of the administrative case to anuary 23, =;;9, copy of which notice was sent to respondent at his office address by re%istered mail covered by @e%istry @eceipt o. =439 issued by the Meralco "ost 1ffice. = 1n the scheduled hearin% on anuary 23, =;;9, the B" nvesti%atin% Commissioner, by 1rder of even date, =:noted the presence of complainants, and the absence of respondent, copy of the notice of hearin% to whom was returned unserved with the notation 7@+S5Moved.7 +he case was thereupon deemed submitted for report and recommendation. 1n une =2, =;;9, the B" passed @esolution o. L5=;;959= =4 adoptin% and approvin% the report and recommendation of Atty. @ebecca illanueva5Maala, the nvesti%atin% Commissioner of the case. n her March 9, =;;9 @eport and @ecommendation, 9; nvesti%ation Commissioner Maala observed respondent Atty. Simeon M. Mesina has committed %ross misconduct which shows him to be unfit for the office and unworthy of the privile%e which his license and law confer upon him, and recommended that respondent be suspended for a period of 1ne (2) Iear. Ruli-+ +he Supreme Court finds that respondent is %uilty of %ross misconduct. 0irst, by advisin% complainants to e&ecute another $eed of Absolute Sale antedated to 244 to evade payment of capital %ains ta&es, he violated his duty to promote respect for law and le%al processes, and not to abet activities aimed at defiance of the law- +hat respondent intended to, as he did defraud not a private party but the %overnment is a%%ravatin%. Second, when respondent convinced complainants to e&ecute another document, a simulated $eed of Absolute Sale wherein they made it appear that complainants reconveyed the Melencio property to his mother, he committed dishonesty. +hird, when on May =, 244; respondent invei%led his own clients, the Chua spouses, into turnin% over to him the ownerGs copy of his motherGs title upon the misrepresentation that he would, in four months, have a deed of sale e&ecuted by his mother in favor of complainants, he li'ewise committed dishonesty. +hat the si%nature of 70elicisima M. Melencio7 in the 24:3 document 93 and that in the 244 document 9 are mar'edly different is in fact is a bad%e of falsification of either the 244 or the 24:3 document or even both. A propos is this CourtGs followin% pronouncement in Nakpil v. Valdez 9 As a rule, a lawyer is not barred from dealin% with his client but the business transaction must be characteri8ed with utmost honesty and %ood faith. +he measure of %ood faith which an attorney is reDuired to e&ercise in his dealin%s with his client is a much hi%her standard that is reDuired in business dealin%s where the parties trade at 7arms len%th.7 Business transactions between an attorney and his client are disfavored and discoura%ed by the policy of the law. /ence, courts carefully watch these transactions to assure that no advanta%e is ta'en by a lawyer over his client. +his rule is founded on public policy for, by virtue of his office, an attorney is in an easy position to ta'e advanta%e of the credulity and i%norance of his client. +hus, no presumption of innocence or improbability of wron%doin% is considered in an attorneyGs favor. n fine, respondent violated his oath of office and, more specifically, the followin% canons of the Code of "rofessional @esponsibility< CA1 2. A #AIE@ S/A## ?"/1#$ +/E C1S++?+1, 1BEI +/E #AS 10 +/E #A$ A$ "@1M1+E @ES"EC+ 01@ #A A$ #E6A# "@1CESSES. @ule 2.;2. 5 A lawyer shall not en%a%e in unlawful, dishonest, immoral or deceitful conduct. @ule 2.;=. 5 A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessenin% confidence in the le%al system. CA1 . A #AIE@ S/A## A+ A## +MES ?"/1#$ +/E +E6@+I A$ $6+I 10 +/E #E6A# "@10ESS1 A$ S?""1@+ +/E AC++ES 10 +/E +E6@A+E$ BA@.
@ule .;9. 5 A lawyer shall not en%a%e in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the le%al profession. CA1 23. A #AIE@ S/A## 1BSE@E CA$1@, 0A@ESS A$ #1IA#+I A## /S $EA#6S A$ +@ASAC+1S +/ /S C#E+S. @ule 23.;. 5 A lawyer shall impress upon his client compliance with the laws and the principles of fairness. CA1 2. A #AIE@ 1ES 0$E#+I +1 +/E CA?SE 10 /S C#E+ A$ /E S/A## BE M$0?# 10 +/E +@?S+ A$ C10$ECE @E"1SE$ /M. WH0R0&OR0, respondent A++I. SME1 M. MESA, @. is, for %ross misconduct, hereby $SBA@@E$.
@epublic of the "hilippines SUPR0M0 COUR1 Manila E BAC A.C. !o. /6*6
7ue *, %66#
30LD S10MM0RI3, reudicial atmosphere of familial amity and with the %race of reciprocal concessions. 0ather and son opted instead for >udicial intervention despite the inevitable acrimony and ne%ative publicity. Albeit with distaste, the Court cannot proceed elsewise but to resolve their dispute with the same reasoned detachment accorded any >udicial proceedin% before it. +he records of this case reveal that petitioner was employed by his father, herein private respondent, as farm administrator of /acienda Manucao in /ini%aran, e%ros 1ccidental sometime in April, 24:;. "rior thereto, he was
successively employed as sales mana%er of +riumph nternational ("hil.), nc. and later as operations mana%er of +op 0orm Manufacturin% ("hil.), nc. /is employment as farm administrator was on a fi&ed salary, with other allowances coverin% housin%, food, li%ht, power, telephone, %asoline, medical and dental e&penses. As farm administrator, petitioner was responsible for the supervision of daily activities and operations of the su%arcane farm such as land preparation, plantin%, weedin%, fertili8in%, harvestin%, dealin% with third persons in all matters relatin% to the ha'ienda and attendin% to such other tas's as may be assi%ned to him by private respondent. 0or this purpose, he lived on the farm, occupyin% the upper floor of the house there. 0ollowin% his marria%e on une , 24:=, petitioner moved to Bacolod City with his wife and commuted to wor' daily. /e suffered various ailments and was hospitali8ed on two separate occasions in une and Au%ust, 24:=. n ovember, 24:=, he underwent fistulectomy, or the sur%ical removal of the fistula, a deep sinuous ulcer. $urin% his recuperation which lasted over four months, he was under the care of $r. "atricio +an. n une, 24:9, he was confined for acute %astroenteritis and, thereafter, for infectious hepatitis from $ecember, 24:9 to anuary, 24:. $urin% the entire periods of petitioner*s illnesses, private respondent too' care of his medical e&penses and petitioner continued to receive compensation. /owever, in April, 24:, without due notice, private respondent ceased to pay the latter*s salary. "etitioner made oral and written demands for an e&planation for the sudden withholdin% of his salary from Atty. Apolonio Sumbin%co, private respondent*s auditor and le%al adviser, as well as for the remittance of his salary. Both demands, however, were not acted upon. "etitioner then filed an action with the ational #abor @elations Commission (#@C, for brevity), @e%ional Arbitration Branch o. , Bacolod City, on 1ctober 2, 24:, doc'eted therein as @AB Case o. ;3=5:, a%ainst private respondent for ille%al dismissal with prayer for reinstatement without loss of seniority ri%hts and payment of full bac' wa%es, thirteenth month pay for 24:9, conseDuential, moral and e&emplary dama%es, as well as attorney*s fees. 1n uly 92, 2442, said complaint for ille%al dismissal was dismissed by the #@C, * holdin% that petitioner abandoned his wor' and that the termination of his employment was for a valid cause, but orderin% private respondent to pay petitioner the amount of "3,;;;.;; as penalty f or his failure to serve notice of said termination of employment to the $epartment of #abor and Employment as reDuired b y Batas "ambansa Bl%. 29; and consonant with this Court*s rulin% in )enphil *orporation vs. National +abor elations *ommission" et al . % 1n appeal to the 0ourth $ivision of the #@C, Cebu City, said decision was affirmed in toto. /is motion for reconsideration ) of said decision havin% been denied for lac' of merit, @ petitioner filed this petition presentin% the followin% issues for resolution< (2) whether or not the petitioner was ille%ally dismissed- (=) whether or not he is entitled to reinstatement, payment of bac' wa%es, thirteenth month pay and other b enefits- and (9) whether or not he is entitled to payment of moral and e&emplary dama%es and attorney*s fees because of ille%al dismissal. +he discussion of these issues will necessarily subsume the corollary Duestions presented by private respondent, such as the e&act date when petitioner ceased to function as f arm administrator, the character of the pecuniary amounts received by petitioner from private respondent, that is, whether the same are in the nature of salaries or pensions, and whether or not there was abandonment by petitioner of his functions as farm administrator. n his manifestation dated September 2, 244=, the Solicitor 6 eneral recommended a modification of the decision of herein public respondent sustainin% the findin%s and conclusions of the E&ecutive #abor Arbiter in @AB Case o. ;3=5:, for which reason the #@C was reDuired to submit its own comment on the petition. n compliance with the Court*s resolution of ovember 2, 244=, $ #@C filed its comment on 0ebruary 2=, 244= lar%ely reiteratin% its earlier position in support of the findin%s of the E&ecutive #abor Arbiter. / Before proceedin% with a discussion of the issues, the observation of the labor arbiter is worth notin%< +his case is truly uniDue. hat ma'es this case uniDue is the fact that because of the special relationship of the parties and the nature of the action involved, this case could very well %o down (in) the annals of the Commission as perhaps the first of its 'ind. 0or this case is an action filed by an only son, his father*s namesa'e, the only child and therefore the only heir a%ainst his own father. # Additionally, the Solicitor 6eneral remar'ed< . . . After an e&haustive readin% of the records, two (=) observations were noted that may >ustify why this labor case deserves special considerations. 0irst, most of the complaints that petitioner and private respondent had with each other, were personal matters affectin% father and son relationship. And secondly, if any of the complaints pertain to their wor', they allow their personal relationship to come in the way. *6 . "etitioner maintains that his dismissal from employment was ille%al because of want of >ust cause therefor and non5observance of the reDuirements of due process. /e also char%es the #@C with %rave abuse of discretion in relyin% upon the findin%s of the e&ecutive labor arbiter who decided the case but did not conduct the hearin%s thereof.
"rivate respondent, in refutation, avers that there was abandonment by petitioner of his functions as farm administrator, thereby armin% private respondent with a %round to terminate his employment at /acienda Manucao. t is also contended that it is wron% for petitioner to Duestion the factual findin%s of the e&ecutive labor arbiter and the #@C as only Duestions of law may be appealed for resolution b y this Court. 0urthermore, in see'in% the dismissal of the instant petition, private respondent faults herein petitioner for failure to refer to the correspondin% pa%es of the transcripts of steno%raphic notes, erroneously citin% Sections 23(d) and 2(d), @ule (should be Section 2JcK and JdK, @ule and Section 2J%K, @ule 3;) of the @ules of Court, which provide that want of pa%e references to the records is a %round for dismissal of an appeal. "refatorily, we ta'e advertence of the provisions of Article ==2 of the #abor Code that technical rules of evidence prevailin% in courts of law and eDuity shall not be controllin%, and that every and all reasonable means to speedily and ob>ectively ascertain the facts in each case shall be availed of, without re%ard to technicalities of law or procedure in the interest of due process. t is settled that it is not procedurally ob>ectionable for the decision in a case to be rendered by a >ud%e, or a labor arbiter for that matter, other than the one who conducted the hearin%. +he fact that the >ud%e who heard the case was not the >ud%e who penned the decision does not impair the validity of the >ud%ment, ** provided that he draws up his decision and resolution with due care and ma'es certain that they truly and accurately reflect conclusions and final dispositions on the bases of the facts of and evidence submitted in the case. *% +hus, the mere fact that the case was initially assi%ned to #abor Arbiter @icardo +. 1ctavio, who conducted the hearin%s therein from $ecember 3, 24: to uly 22, 24:3, and was later transferred to E&ecutive #abor Arbiter 1scar S. ?y, who eventually decided the case, presents no procedural infirmity, especially considerin% that there is a presumption of re%ularity in the performance of a public officer*s functions, * which petitioner has not successfully rebutted. e are constrained to heed the underlyin% policy in the #abor Code rela&in% the application of technical rules of procedure in labor cases in the interest of due process, ever mindful of the lon%5standin% le%al precept that rules of procedure must be interpreted to help secure, not defeat, >ustice. 0or this reason, we cannot indul%e private respondent in his tendency to nitpic' on trivial technicalities to boost his ar%uments. +he stren%th of one*s position cannot be hin%ed on mere procedural niceties but on solid bases in law and >urisprudence. +he fundamental %uarantees of security of tenure and due process dictate that no wor'er shall be dismissed e&cept for >ust and authori8ed cause provided by law and after due process. *) Article =:= of the #abor Code enumerates the causes for which an employer may validly terminate an employment, to wit< (a) serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his wor'- (b) %ross and habitual ne%lect by the employee of his duties- (c) fraud or willful breach by the employee of the trust reposed in him by his employer or duly authori8ed representative- (d) commission of a crime or offense by the employee a%ainst the person of his employer or any immediate member of his family or his duly authori8ed representative- and (e) other causes analo%ous to the fore%oin%. +he employer may also terminate the services of any employee due to the installation of labor savin% devices, redundancy, retrenchment to prevent losses or the closin% or cessation of operation of the establishment or underta'in%, unless the closin% is for the purpose of circumventin% the pertinent provisions of the #abor Code, by servin% a written notice on the wor'ers and the $epartment of #abor and Employment at least one (2) month before the intended date thereof, with due entitlement to the correspondin% separation pay rates provided by law. *@ Sufferin% from a disease by reason whereof the continued employment of the employee is prohibited by law or is pre>udicial to his and his co5employee*s health, is also a %round for termination of his services provided he receives the prescribed separation pay. * 1n the other hand, it is well5settled that abandonment by an employee of his wor' authori8es the employer to effect the former*s dismissal from employment. *$ After a careful review of the records of this case, we find that public respondent %ravely erred in affirmin% the decision of the e&ecutive labor arbiter holdin% that petitioner abandoned his employment and was not ille%ally dismissed from such employment. 0or want of substantial bases, in fact or in law, we cannot %ive the stamp of finality and conclusiveness normally accorded to the factual findin%s of an administrative a%ency, such as herein public respondent #@C, */ as even decisions of administrative a%encies which are declared 7final7 by law are not e&empt from >udicial review when so warranted. *# +he followin% perceptive disDuisitions of the Solicitor 6eneral on this point deserve acceptance< t is submitted that the absences of petitioner in his wor' from 1ctober 24:= to $ecember 24:=, cannot be construed as abandonment of wor' because he has a >ustifiable e&cuse. "etitioner was sufferin% from perennial abscess in the peri5anal around the anus and fistula under the medical attention of $r. "atricio +an of @iverside Medical Center, nc., Bacolod City (+sn, ol. , $r. +an, 0ebruary 24, 24: at =;5). +his fact (was) duly communicated to private respondent by medical bills sent to /acienda Manucao (+sn, ol. , $r. +an, anuary ==, 24: at 453;).
$urin% the period of his illness and recovery, petitioner stayed in Bacolod City upon the instruction(s) of private respondent to recuperate thereat and to handle only administrative matters of the hacienda in that city. As a mana%er, petitioner is not really obli%ed to live and stay = hours a day inside /acienda Manucao. &&& &&& &&& After evaluatin% the evidence within the conte&t of the special circumstances involved and basic human e&perience, petitioner*s illness and strained family relation with respondent on de Isasi may be considered as >ustifiable reason for petitioner on de Isasi *s absence from wor' durin% the period of 1ctober 24:= to $ecember 24:=. n any event, such absence does not warrant outri%ht dismissal without notice and hearin%. &&& &&& &&& +he elements of abandonment as a %round for dismissal of an employee are as follows< (2) failure to report for wor' or absence without valid or >ustifiable reason- and (=) clear intention to sever the employer5employee tie (Samson Alcantara, evie,er in +abor and $o'ial +egislation, 24:4 edition, p. 299). +his /onorable Court, in several cases, illustrates what constitute abandonment. n Dagupan #us *ompan v . N+* (242 SC@A 9=:), the Court rules that for abandonment to arise, there must be a concurrence of the intention to abandon and some overt act from which it may be inferred that the employee has no more interest to wor'. Similarly, in Nueva 'i/a ( le'tri' *ooperative" (n' . v . N+* (2: SC@A =3), for abandonment to constitute a valid cause for termination of employment, there must be a deliberate, un>ustified refusal of the employee to resume his employment. . . Mere absence is not sufficient- it must be accompanied by overt acts unerrin%ly pointin% to the fact that the employee simply does not want to wor' anymore. +here are si%nificant indications in this case, that there is no abandonment. 0irst, petitioner*s absence and his decision to leave his residence inside /acienda Manucao, is >ustified by his illness and strained family relations. Second he has some medical certificates to show his frail health. +hird, once able to wor', petitioner wrote a letter (Anne& 77) informin% private respondent of his intention to assume a%ain his employment. #ast, but not the least, he at once instituted a complaint for ille%al dismissal when he reali8ed he was un>ustly dismissed. All these are indications that petitioner had no intention to abandon his employment. %6 +he records show that the parties herein do not dispute the fact of petitioner*s confinement in the hospital for his various afflictions which reDuired medical treatment. either can it be denied that private respondent was well aware of petitioner*s state of health as the former admittedly shouldered part of the medical and hospital bills and even advised the latter to stay in Bacolod City until he was fit to wor' a%ain. +he disa%reement as to whether or not petitioner*s ailments were so serious as to necessitate hospitali8ation and correspondin% periods for recuperation is beside the point. +he fact remains that on account of said illnesses, the details of which were amply substantiated by the attendin% physician, %* and as the records are bereft of any su%%estion of malin%erin% on the part of petitioner, there was >ustifiable cause for petitioner*s absence from wor'. e repeat, it is clear, deliberate and un>ustified refusal to resume employment and not mere absence that is reDuired to constitute abandonment as a valid %round for termination of employment. %% ith his position as farm administrator of /acienda Manucao, petitioner unmista'ably may be classified as a mana%erial employee % to whom the law %rants an amount of discretion in the dischar%e of his duties. +his is why when petitioner stated that 7 assi%ned myself where want to %o,7 %) he was simply bein% candid about what he could do within the sphere of his authority. /is duties as farm administrator did not strictly reDuire him to 'eep re%ular hours or to be at the office premises at all times, or to be sub>ected to specific control from his employer in every aspect of his wor'. hat is essential only is that he runs the farm as efficiently and effectively as possible and, while petitioner may definitely not Dualify as a model employee, in this re%ard he proved to be Duite successful, as there was at least a showin% of increased production durin% the time that petitioner was in char%e of farm operations. f, as private respondent contends, he had no control over petitioner durin% the years 24:9 to 24:, this is because that was the period when petitioner was recuperatin% from illness and on account of which his attendance and direct involvement in farm operations were irre%ular and minimal, hence the supervision and control e&ercisable by private respondent as employer was necessarily limited. t %oes without sayin% that the control contemplated refers only to matters relatin% to his functions as farm administrator and could not e&tend to petitioner*s personal affairs and activities. hile it was ta'en for %ranted that for purposes of dischar%in% his duties as farm administrator, petitioner would be stayin% at the house in the farm, there really was no e&plicit contractual stipulation (as there was no formal employment contract to be%in with) reDuirin% him to stay therein for the duration of his employment or that any transfer of residence would >ustify the termination of his employment. +hat petitioner chan%ed his residence should
not be ta'en a%ainst him, as this is undeniably amon% his basic ri%hts, nor can such fact of transfer of residence per se be a valid %round to terminate an employer5employee relationship. "rivate respondent, in his pleadin%s, asserted that as he was yet uncertain of his son*s intention of returnin% to wor' after his confinement in the hospital, he 'ept petitioner on the payroll, reported him as an employee of theha'ienda for social security purposes, and paid his salaries and benefits with the mandated deductions therefrom until the end of $ecember, 24:=. t was only in anuary, 24:9 when he became convinced that petitioner would no lon%er return to wor' that he considered the latter to have abandoned his wor' and, for this reason, no lon%er listed him as an employee. Accordin% to private respondent, whatever amount of money was %iven to petitioner from that time until April, 24: was in the nature of a pension or an allowance or mere %ratuitous doles from a father to a son, and not salaries as, in fact, none of the usual deductions were made therefrom. t was only in April, 24: that private respondent completely stopped %ivin% said pension or allowance when he was an%ered by what he heard petitioner had been sayin% about sendin% him to >ail. "rivate respondent capitali8es on the testimony of one Manolo 6ome8 ta'en on oral deposition re%ardin% petitioner*s alle%ed statement to him, 7 0he uemado los 0pue0ntes de 3anu'ao7 (7 have burned my brid%es with Manucao7) as e&pressive of petitioner*s intention to abandon his >ob. n addition to insinuations of sinister motives on the part of petitioner in wor'in% at the farm and thereafter abandonin% the >ob upon accomplishment of his ob>ectives, private respondent ta'es the novel position that the a%reement to support his son after the latter abandoned the administration of the farm le%ally converts the initial abandonment to implied voluntary resi%nation. %@ As earlier mentioned, petitioner ripostes that private respondent undoubtedly 'new about petitioner*s illness and even paid for his hospital and other medical bills. +he assertion re%ardin% abandonment of wor', petitioner ar%ues, is further belied by his continued performance of various services related to the operations of the farm from May to the last Duarter of 24:9, his persistent inDuiries from his father*s accountant and le%al adviser about the reason why his pension or allowance was discontinued since April, 24:, and his indication of havin% recovered and his willin%ness and capability to resume his wor' at the farm as e&pressed in a letter dated September 2, 24:. % ith these, petitioner contends that it is immaterial how the monthly pecuniary amounts are desi%nated, whether as salary, pension or allowance, with or without deductions, as he was entitled thereto in view of his continued service as farm administrator. %$ +o stress what was earlier mentioned, in order that a findin% of abandonment may >ustly be made there must be a concurrence of two elements, viz .< (2) the failure to report for wor' or absence without valid or >ustifiable reason, and (=) a clear intention to sever the employer5employee relationship, with the second element as the more determinative factor and bein% manifested by some overt acts. Such intent we find dismally wantin% in this case. t will be recalled that private respondent himself admitted bein% unsure of his son*s plans of returnin% to wor'. +he absence of petitioner from wor' since mid524:=, prolon%ed thou%h it may have been, was not without valid causes of which private respondent had full 'nowled%e. As to what convinced or led him to believe that petitioner was no lon%er returnin% to wor', private respondent neither e&plains nor substantiates by any reasonable basis how he arrived at such a conclusion. Moreover, private respondent*s claim of abandonment cannot be %iven credence as even after anuary, 24:9, when private respondent supposedly 7became convinced7 that petitioner would no lon%er wor' at the farm, the latter continued to perform services directly reDuired by his position as farm administrator. +hese are duly and correspondin%ly evidenced by such acts as pic'in% up some farm machineryHeDuipment from 6.A. Machineries, nc., %/ claimin% and payin% for additional farm eDuipment and machinery shipped by said firm from Manila to Bacolod throu%h Nip 0orwarders, %# %ettin% the payment of the additional cash advances for molasses for crop year 24:9524: from A%rote& Commodities, nc., 6 and remittin% to private respondent throu%h Atty. Sumbin%co the sums collected alon% with receipts for medicine and oil. * t will be observed that all of these chores, which petitioner too' care of, relate to the normal activities and operations of the farm. +rue, it is a father*s prero%ative to reDuest or even command his child to run errands for him. n the present case, however, considerin% the nature of these transactions, as well as the property values and monetary sums involved, it is unli'ely that private respondent would leave the matter to >ust anyone. "rudence dictates that these matters be handled by someone who can be trusted or at least be held accountable therefor, and who is familiar with the terms, specifications and other details relative thereto, such as an employee. f indeed petitioner had abandoned his >ob or was considered to have done so by private respondent, it would be aw'ward, or even out of place, to e&pect or to obli%e petitioner to concern himself with matters relatin% to or e&pected of him with respect to what would then be his past and terminated employment. t is hard to ima%ine what further authority an employer can have over a dismissed employee so as to compel him to continue to perform wor'5related tas's< t is also si%nificant that the special power of attorney % e&ecuted by private respondent on une =, 24:; in favor of petitioner, specifically statin% &&& &&& &&&
+hat , 1 de ISAS, 0ilipino, of le%al a%e, married, and a resident of /da. Manucao, hereinafter called and referred to as "@C"A#, am a su%arcane planter, BSC1M Mill $istrict, and a duly accredited planter5member of the BA#BA6A5SABE#A "#A+E@S* ASS1CA+1, C.+hat as such planter5member of B"A, have chec'Hchec's with B"A representin% payment for all chec's and papers to which am entitled to (sic) as such planter5member+hat have named, appointed and constituted as by these presents /E@EBI AME, A""1+ A$ C1S++?+E as my true and lawful A++1@EI550AC+ 1 de ISAS whose specimen si%nature is hereunder affi&ed, +1 6E+ 01@ ME and in my name, place and stead, my chec'Hchec's aforementioned, said A++1@EI550AC+ bein% herein %iven the power and authority to si%n for me and in my name, place and stead, the receipt or receipts or payroll for the said chec'Hchec's. "@1$E$, /1EE@, that my said A++1@EI550AC+ cannot cash the said chec'Hchec's, but to turn the same over to me for my proper disposition. +hat /E@EBI @A+0I A$ C10@M the acts of my Attorney5in50act in %ettin% the said chec'Hchec's and si%nin% the receipts therefor. +hat further reDuest that my said chec'Hchec's be made a 7C@1SSE$ C/ECF7. &&& &&& &&& remained in force even after petitioner*s employment was supposed to have been terminated by reason of abandonment. 0urthermore, petitioner*s numerous reDuests for an e&planation re%ardin% the stoppa%e of his salaries and benefits, the issuance of withholdin% ta& reports, ) as well as correspondence reportin% his full recovery and readiness to %o bac' to wor', @ and, specifically, his filin% of the complaint for ille%al dismissal are hardly the acts of one who has abandoned his wor'. e are li'ewise not impressed by the deposition of Manolo 6ome8, as witness for private respondent, ascribin% statements to petitioner supposedly indicative of the latter*s intention to abandon his wor'. e perceive the irre%ularity in the ta'in% of such deposition without the presence of petitioner*s counsel, and the failure of private respondent to serve reasonably advance notice of its ta'in% to said counsel, thereby foreclosin% his opportunity to cross5e&amine the deponent. "rivate respondent also failed to serve notice thereof on the @e%ional Arbitration Branch o. of the #@C, as certified to by Administrative Assistant Celestina 6. 1ve>era of said office. 0air play dictates that at such an important sta%e of the proceedin%s, which involves the ta'in% of testimony, both parties must be afforded eDual opportunity to e&amine and cross5e&amine a witness. As to the monthly monetary amounts %iven to petitioner, whether denominated as salary, pension, allowance or e4 gratia handout, there is no Duestion as to petitioner*s entitlement thereto inasmuch as he continued to perform services in his capacity as farm administrator. +he chan%e in description of said amounts contained in the pay slips or in the receipts prepared by private respondent cannot be deemed to be determinative of petitioner*s employment status in view of the peculiar circumstances above set out. Besides, if such amounts were truly in the nature of allowances %iven by a parent out of concern for his child*s welfare, it is rather unusual that receipts therefor $ should be necessary and reDuired as if they were ordinary business e&penditures. either can we subscribe to private respondent*s theory that petitioner*s alle%ed abandonment was converted into an implied voluntary resi%nation on account of the father*s a%reement to support his son after the latter abandoned his wor'. As we have determined that no abandonment too' place in this case, the monthly sums received by petitioner, re%ardless of desi%nation, were in consideration for services rendered emanatin% from an employer5 employee relationship and were not of a character that can Dualify them as mere civil support %iven out of parental duty and solicitude. e are also hard put to ima%ine how abandonment can be impliedly converted into a voluntary resi%nation without any positive act on the part of the employee conveyin% a desire to terminate his employment. +he very concept of resi%nation as a %round for termination by the employee of his employment / does not sDuare with the elements constitutive of abandonment. 1n procedural considerations, petitioner posits that there was a violation by private respondent of the due process reDuirements under the #abor Code for want of notice and hearin%. # "rivate respondent, in opposition, ar%ues that Section =, @ule L, Boo' of the 1mnibus @ules mplementin% the #abor Code applies only to cases where the employer see's to terminate the services of an employee on any of the %rounds enumerated under Article =:= of the #abor Code, but not to the situation obtainin% in this case where private respondent did not dismiss petitioner on a ny %round since it was petitioner who alle%edly abandoned his employment. )6 +he due process reDuirements of notice and hearin% applicable to labor cases are set out in @ule L, Boo' of the 1mnibus @ules mplementin% the #abor Code in this wise<
Sec. =. Noti'e o! Dismissal . Any employer who see's to dismiss a wor'er shall furnish him a written notice statin% the particular acts or omission(s) constitutin% the %rounds for his dismissal. n cases of abandonment of wor', notice shall be served at the wor'er*s last 'nown address. &&& &&& &&& Sec. 3. &ns,er and hearing . +he wor'er may answer the alle%ations as stated a%ainst him in the notice of dismissal within a reasonable period from receipt of such notice. +he employer shall afford the wor'er ample opportunity to be heard and to defend himself with the assistance of his representative, if he so desires. Sec. . De'ision to dismiss. +he employer shall immediately notify a wor'er in writin% of a decision to dismiss him statin% clearly the reasons therefor. Sec. . ight to 'ontest dismissal . Any decision ta'en by the employer shall be without pre>udice to the ri%ht of the wor'er to contest the validity or le%ality of his dismissal by filin% a complaint with the @e%ional Branch of the Commission. &&& &&& &&& Sec. 22. eport o! dismissal . +he employer shall submit a monthly report to the @e%ional 1ffice havin% >urisdiction over the place of wor' at all dismissals effected by him durin% the month, specifyin% therein the names of the dismissed wor'ers, the reasons for their dismissal, the dates of commencement and termination of employment, the positions last held by them and such other information as may be reDuired by the Ministry for policy %uidance and statistical purposes. "rivate respondent*s ar%ument is without merit as there can be no Duestion that petitioner was denied his ri%ht to due process since he was never %iven any notice about his impendin% dismissal and the %rounds therefor, much less a chance to be heard. Even as private respondent controverts the applicability of the mandatory twin reDuirements of procedural due process in this particular case, he in effect admits that no notice was served by him on petitioner. +his fact is corroborated by the certification issued on September 3, 24: by the @e%ional $irector for @e%ion of the $epartment of #abor that no notice of termination of the employment of petitioner was submitted thereto. )* 6rantin% arguendo that there was abandonment in this case, it nonetheless cannot be denied that notice still had to be served upon the employee sou%ht to be dismissed, as the second sentence of Section = of the pertinent implementin% rules e&plicitly reDuires service thereof at the employee*s last 'nown address, by way of substantial compliance. hile it is conceded that it is the employer*s prero%ative to terminate an employee, especially when there is >ust cause therefor, the reDuirements of due process cannot be li%htly ta'en. +he law does not countenance the arbitrary e&ercise of such a power or prero%ative when it has the effect of underminin% the fundamental %uarantee of security of tenure in favor of the employee. )% 1n the e&ecutive labor arbiter*s misplaced reliance on the )enphil case, the Solicitor 6eneral re>oins as follows< +he #abor Arbiter held thus< hile we are in full a%reement with the respondent as to his defense of implied resi%nation andHor abandonment, records somehow showed that he failed to notify the $epartment of #abor and Employment for his sons* (sic)Hcomplainants* (sic) aba(n)donment as reDuired by B" 29;. And for this failure, the other reDuisite for a valid termination by an employer was not complied with. +his however, would not wor' to invalidate the otherwise (sic) e&istence of a valid cause for dismissal. +he validity of the cause of dismissal must be upheld at all times provided however that sanctions must be imposed on the respondent for his failure to observe the notice on due process reDuirement. (enphil Corp. v. #@C, 6.@. o. :;3:). ($ecision #abor Arbiter, at 2252=, Anne& 7C7 "etition), . . . +his is thus a very different case from )enphil *orporation v . N+* , 2; SC@A 4. n )enphil" the rule applied to the facts is< once an employee is dismissed for >ust cause, he must not be rewarded re5employment and bac'wa%es for failure of his employer to observe procedural due process. +he public policy behind this is that, it may encoura%e the employee to do even worse and render a moc'ery of the rules of discipline reDuired to be observed. /owever, the employer must be penali8ed for his infraction of due process. n the present case, however, not only was petitioner dismissed without due process, but his dismissal is without >ust cause. "etitioner did not abandon his employment because he has a >ustifiable e&cuse. ) . "etitioner avers that the e&ecutive labor arbiter erred in disre%ardin% the mandatory provisions of Article =4 of the #abor Code which entitles an ille%ally dismissed employee to reinstatement and bac' wa%es and, instead,
affirmed the imposition of the penalty of "3,;;;.;; on private respondent for violation of the due process reDuirements. "rivate respondent, for his part, maintains that there was error in imposin% the fine because that penalty contemplates the failure to submit the employer*s report on dismissed employees to the $1#E re%ional office, as reDuired under Section 3 (now, Section 22), @ule L of the implementin% rules, and not the failure to serve notice upon the employee sou%ht to be dismissed by the employer. Both the Constitution and the #abor Code enunciate in no uncertain terms the ri%ht of every wor'er to security of tenure. )) +o %ive teeth to this constitutional and statutory mandates, the #abor Code spells out the relief available to an employee in case of its denial< Art. =4. $e'urit o! 5enure. n cases of re%ular employment, the employer shall not terminate the services of an employee e&cept for a >ust cause or when authori8ed by this +itle. An employee who is un>ustly dismissed from wor' shall be entitled to reinstatement without loss of seniority ri%hts and other privile%es and to his full bac'wa%es, inclusive of allowances, and to his other benefits of their monetary eDuivalent computed from the time his compensation was withheld from him up to the time of actual reinstatement. Clearly, therefore, an employee is entitled to reinstatement with full bac' wa%es in the absence of >ust cause for dismissal. )@ +he Court, however, on numerous occasions has tempered the ri%id application of said provision of the #abor Code, reco%ni8in% that in some cases certain events may have transpired as would militate a%ainst the practicability of %rantin% the relief thereunder provided, and declares that where there are strained relations between the employer and the employee, payment of bac' wa%es and severance pay may be awarded instead of reinstatement, ) and more particularly when mana%erial employees are concerned. )$ +hus, where reinstatement is no lon%er possible, it is therefore appropriate that the dismissed employee be %iven his fair and >ust share of what the law accords him. )/ e note with favor and %ive our imprimatur to the Solicitor 6eneral*s ratiocination, to wit< As a %eneral rule, an employee who is un>ustly dismissed from wor' shall be entitled to reinstatement without loss of seniority ri%hts and to his bac'wa%es computed from the time his compensation was withheld up to the time of his reinstatement. (Morales vs. #@C, 2:: SC@A =43). But in Pa'i!i' *ement *ompan" (n' . vs. N+* , 29 SC@A 24=, this /onorable Court held that when it comes to reinstatement, differences should be made between mana%ers and the ordinary wor'in%men. +he Court concluded that a company which no lon%er trusts its mana%ers cannot operate freely in a competitive and profitable manner. +he #@C should 'now the difference between mana%ers and ordinary wor'in%men. t cannot imprudently order the reinstatement of mana%ers with the same ease and liberality as that of ran' and file wor'ers who had been terminated. Similarly, a reinstatement may not be appropriate or feasible in case of antipathy or anta%onism between the parties (Morales, vs. #@C, 2:: SC@A =43). n the present case, it is submitted that petitioner should not be reinstated as farm administrator of /acienda Manucao. +he present relationship of petitioner and private respondent (is) so strained that a harmonious and peaceful employee5employer relationship is hardly possible. )# . 0inally, petitioner insists on an award of moral dama%es, ar%uin% that his dismissal from employment was attended by bad faith or fraud, or constituted oppression, or was contrary to morals, %ood customs or public policy. /e further prays for e&emplary dama%es to serve as a deterrent a%ainst similar acts of un>ust dismissal by other employers. Moral dama%es, under Article ==2 of the Civil Code, may be awarded to compensate one for diverse in>uries such as mental an%uish, besmirched reputation, wounded feelin%s, and social humiliation, provided that such in>uries sprin% from a wron%ful act or omission of the defendant which was the pro&imate cause thereof. @6E&emplary dama%es, under Article ===4, are imposed by way of e&le or correction for the public %ood, in addition to moral, temperate, liDuidated or compensatory dama%es. +hey are not recoverable as a matter of ri%ht, it bein% left to the court to decide whether or not they should be ad>udicated. @* e are well aware of the Court*s rulin%s in a number of cases in the past allowin% recovery of moral dama%es where the dismissal of the employee was attended b y bad faith or fraud, or constituted an act oppressive to labor, or was done in a manner contrary to morals, %ood customs or public policy, @% and of e&emplary dama%es if the dismissal was effected in a wanton, oppressive or malevolent manner. @ e do not feel, however, that an award of the dama%es prayed for in this petition would be proper even if, seemin%ly, the facts of the case >ustify their allowance. n the aforestated cases of ille%al dismissal where moral and e&emplary dama%es were awarded, the dismissed employees were %enuinely without fault and were undoubtedly victims of the errin% employers* capricious e&ercise of power. n the present case, we find that both petitioner and private respondent can eDually be faulted for fannin% the flames which %ave rise to and ultimately a%%ravated this controversy, instead of sincerely ne%otiatin% a peaceful settlement of their disparate claims. +he records reveal how their actuations seethed with mutual anta%onism and the undeniable enmity between them ne%ates the li'elihood that either of them acted in %ood faith. t is apparent that each one has a cause for dama%es a%ainst the other. 0or this reason, we hold that no moral or e&emplary dama%es can ri%htfully be awarded to petitioner.
1n this score, we are once a%ain persuaded by the validity of the followin% recommendation of the Solicitor 6eneral< +he #abor Arbiter*s decision in @AB Case o. ;3=5: should be modified. +here was no voluntary abandonment in this case because petitioner has a >ustifiable e&cuse for his absence, or such absence does not warrant outri%ht dismissal without notice and hearin%. "rivate respondent, therefore, is %uilty of ille%al dismissal. /e should be ordered to pay bac'wa%es for a period not e&ceedin% three years from date of dismissal. And in lieu of reinstatement, petitioner may be paid separation pay eDuivalent to one (2) month(*s) salary for every year of service, a fraction of si& months bein% considered as one (2) year in accordance with recent >urisprudence (+an, r. vs. #@C, 2:9 SC@A 32). But all claims for dama%es should be dismissed, for both parties are eDually at fault. @) +he conduct of the respective counsel of the parties, as revealed by the records, sorely disappoints the Court and invites reproof. Both counsel may well be reminded that their ethical duty as lawyers to represent their clients with 8eal @@ %oes beyond merely presentin% their clients* respective causes in court. t is >ust a s much their responsibility, if not more importantly, to e&ert all reasonable efforts to smooth over le%al conflicts, preferably out of court and especially in consideration of the direct and immediate consan%uineous ties between their clients. 1nce a%ain, we reiterate that the useful function of a lawyer is not only to conduct liti%ation but to avoid it whenever possible by advisin% settlement or withholdin% suit. /e is often called upon less for dramatic forensic e&ploits than for wise counsel in every phase of life. /e should be a mediator for concord and a conciliator for compromise, rather than a virtuoso of technicality in the conduct of liti%ation. @ @ule 2.; of the Code of "rofessional @esponsibility e&plicitly provides that 7(a) lawyer shall encoura%e his client to avoid, end or settle the controversy if it will admit of a fair settlement.7 1n this point, we find that both counsel herein fell short of what was e&pected of them, despite their avowed duties as officers of the court. +he records do not show that they too' pains to initiate steps %eared toward effectin% a rapprochement between their clients. 1n the contrary, their acerbic and protracted e&chan%es could not but have e&acerbated the situation even as they may have found favor in the eDually hostile eyes of their respective clients. n the same manner, we find that the labor arbiter who handled this re%rettable case has been less than faithful to the letter and spirit of the #abor Code mandatin% that a labor arbiter 7shall e&ert all efforts towards the amicable settlement of a labor dispute within his >urisdiction.7 @$ f he ever did so, or at least entertained the thou%ht, the copious records of the proceedin%s in this controversy are barren of any reflection of the same. 1ne final word. +his is one decision we do not particularly relish havin% been obli%ed to ma'e. +he tas' of resolvin% cases involvin% disputes amon% members of a family leaves a bad taste in the mouth and an aversion in the mind, for no truly meanin%ful and endurin% resolution is really achieved in such situations. hile we are convinced that we have ad>udicated the le%al issues herein sDuarely on the bases of law and >urisprudence, sanssentimentality, we are saddened by the thou%ht that we may have failed to brin% about the reconciliation of the father and son who fi%ured as parties to this dispute, and that our adherence here to law and duty may unwittin%ly contribute to the brea'in%, instead of the stren%thenin%, of familial bonds. n fine, neither of the parties herein actually emer%es victorious. t is the Court*s earnest hope, therefore, that with the impartial e&position and e&tended e&planation of their respective ri%hts in this decision, the parties may eventually see their way clear to an ultimate resolution of their differences on more convivial terms. /E@E01@E, the decision of respondent ational #abor @elations Commission is hereby SE+ AS$E. "rivate respondent is 1@$E@E$ to pay petitioner bac' wa%es for a period not e&ceedin% three (9) years, without Dualification or deduction, @/ and, in lieu of reinstatement, separation pay eDuivalent to one (2) month for every year of service, a fraction of si& () months bein% considered as one (2) whole year. S1 1@$E@E$.
@epublic of the "hilippines SUPR0M0 COUR1 Manila E BAC A.C. !o. %$#$
Otoer ), %66%
ROSAURA P. CORDO!, complainant, vs. 70SUS 2ALICA!1A, respondent. @ES1#?+1 P0R CURIAM+ 1n Au%ust =2, 24:3, herein complainant @osaura Cordon filed with this Court a complaint for disbarment, doc'eted as Administrative Case o. =4, a%ainst Atty. esus Balicanta. After respondentGs comment to the complaint and complainantGs reply thereto, this Court, on March =4, 2443 referred the matter to the nte%rated Bar of the "hilippines (B", for brevity) for investi%ation, report and recommendation within 4; days from notice. Commissioner 6eor%e Briones of the B" Commission on Bar $iscipline was initially tas'ed to investi%ate the case. Commissioner Briones was later on replaced by Commissioner @enato Cunanan. Complainant filed a supplemental complaint which was duly admitted and, as a%reed upon, the parties filed their respective position papers. Based on her complaint, supplemental complaint, reply and position paper, the complainant alle%ed the followin% facts< hen her husband 0eli&berto C. aldon died, herein complainant @osaura Cordon and her dau%hter @osemarie inherited the properties left by the said decedent. All in all, complainant and her dau%hter inherited =2 parcels of
land located in Namboan%a City. +he lawyer who helped her settle the estate of her late husband was respondent esus Balicanta. Sometime in the early part of 24:2, respondent enticed complainant and her dau%hter to or%ani8e a corporation that would develop the said real properties into a hi%h5scale commercial comple& with a beautiful penthouse for complainant. @elyin% on these apparently sincere proposals, complainant and her dau%hter assi%ned 24 parcels of land to @osaura Enterprises, ncorporated, a newly5formed and duly re%istered corporation in which they assumed ma>ority ownership. +he sub>ect parcels of land were then re%istered in the name of the corporation. +hereafter, respondent sin%le5handedly ran the affairs of the corporation in his capacity as Chairman of the Board, "resident, 6eneral Mana%er and +reasurer. +he respondent also made complainant si%n a document which turned out to be a votin% trust a%reement. @espondent li'ewise succeeded in ma'in% complainant si%n a special power of attorney to sell and mort%a%e some of the parcels of land she inherited from her deceased husband. She later discovered that respondent transferred the titles of the properties to a certain +ion Suy 1n% who became the new re%istered owner thereof. @espondent never accounted for the proceeds of said transfers. n 24:2, respondent, usin% a spurious board resolution, contracted a loan from the #and Ban' of the "hilippines (#B", for brevity) in the amount of +wo Million +wo /undred +wenty "esos ("=,==;,;;;) usin% as collateral 4 of the real properties that the complainant and her dau%hter contributed to the corporation. +he respondent ostensibly intended to use the money to construct the Baliwasan Commercial Center (BCC, for brevity). Complainant later on found out that the structure was made of poor materials such as sawali, coco lumber and bamboo which could not have cost the corporation anythin% close to the amount of the loan secured. 0or four years from the time the debt was contracted, respondent failed to pay even a sin%le installment. As a result, the #B", in a letter dated May ==, 24:3, informed respondent that the past due amorti8ations and interest had already accumulated to Seven /undred +wenty5nine +housand 0ive /undred +hree "esos and +wenty5five Centavos ("=4,3;9.=3). +he #B" made a demand on respondent for payment for the tenth time. Meanwhile, when the BCC commenced its operations, respondent started to earn revenues from the rentals of BCCGs tenants. 1n 1ctober =:, 24:, the #B" foreclosed on the 4 mort%a%ed properties due to non5payment of the loan. @espondent did not e&ert any effort to redeem the foreclosed properties. orse, he sold the corporationGs ri%ht to redeem the mort%a%ed properties to a certain /ad>i Mahmud amman% throu%h a fa'e board resolution dated anuary 2, 24:4 which clothed himself with the authority to do so. Complainant and her dau%hter, the ma>ority stoc'holders, were never informed of the alle%ed meetin% held on that date. A%ain, respondent never accounted for the proceeds of the sale of the ri%ht to redeem. @espondent also sold to amman% a parcel of land belon%in% to complainant and her dau%hter which was conti%uous to the foreclosed properties and evidenced by +ransfer Certificate of +itle o. =:;. /e never accounted for the proceeds of the sale. Sometime in 24:9, complainantGs dau%hter, @osemarie, discovered that their ancestral home had been demolished and that her mother, herein complainant, was bein% detained in a small nipa shac' in a place called Culianan. +hrou%h the help of Atty. #inda #im, @osemarie was able to locate her mother. @osemarie later learned that respondent too' complainant away from her house on the prete&t that said ancestral home was %oin% to be remodeled and painted. But respondent demolished the ancestral home and sold the lot to +ion Suy 1n%, usin% another spurious board resolution desi%nated as Board @esolution o. 2, series of 244=. +he resolution contained the minutes of an alle%ed or%ani8ational meetin% of the directors of the corporation and was si%ned by Ale&ander ee, An%el 0ernando, Erwin 0ernando and 6abriel Solivar. Complainant and her dau%hter did not 'now how these persons became stoc'holders and directors of the corporation. @espondent a%ain did not account for the proceeds of the sale. Complainant and her dau%hter made several demands on respondent for the delivery of the real properties they alle%edly assi%ned to the corporation, for an accountin% of the proceeds of the #B" loan and as well as the properties sold, and for the rentals earned by BCC. But the demands remained unheeded. /ence, complainant and her dau%hter, in a letter dated une , 24:3, terminated the services of respondent as their lawyer and repeated their demands for accountin% and turn5over of the corporate funds, and the return of the 24 titles that respondent transferred to the corporation. +hey also threatened him with le%al action in a letter dated Au%ust 9, 24:3. Soon after, complainant found out from the Securities and E&chan%e Commission (SEC, for brevity) that @osaura Enterprises, nc., due to respondentGs refusal and ne%lect, failed to submit the corporationGs annual financial statements for 24:2, 24:= and 24:9- SEC 6eneral nformation Sheets for 24:=, 24:9 and 24:- Minutes of Annual Meetin%s for 24:=, 24:9 and 24:- and Minutes of Annual Meetin%s of $irectors for 24:=, 24:9 and 24:. Complainant also discovered that respondent collected rental payments from the tenants of BCC and issued handwritten receipts which he si%ned, not as an officer of the corporation but as the attorney5at5law of complainant. @espondent also used the tennis court of BCC to dry his palay and did not 'eep the buildin%s in a satisfactory state, so much so that the divisions were losin% plywood and other materials to thieves. Complainant li'ewise accused respondent of circulatin% rumors amon% her friends and relatives that she had become insane to prevent them from believin% whatever complainant said. Accordin% to complainant, respondent
proposed that she le%ally separate from her present husband so that the latter would not inherit from her and that respondent be adopted as her son. 0or his defense, respondent, in his comment and position paper, denied employin% deceit and machination in convincin% complainant and her dau%hter to assi%n their real properties to the corporation- that they freely and voluntary e&ecuted the deeds of assi%nment and the votin% trust a%reement that they si%ned- that he did not sin%le5 handedly mana%e the corporation as evidenced by certifications of the officers and directors of the corporation- that he did not use spurious board resolutions authori8in% him to contract a loan or sell the properties assi%ned by the complainant and her dau%hter- that complainant and her dau%hter should be the ones who should render an accountin% of the records and revenues inasmuch as, since 24: up to the present, the part5time corporate boo'5 'eeper, with the connivance of the complainant and her dau%hter, had custody of the corporate records- that complainant and her dau%hter sabota%ed the operation of BCC when they ille%ally too' control of it in 24:- that he never poc'eted any of the proceeds of the properties contributed by the complainant and her dau%hter- that the demolition of the ancestral home followed le%al procedures- that complainant was never detained in Culianan but she freely and voluntarily lived with the family of ";9 oel Constantino as evidenced by complainantGs own letter denyin% she was 'idnapped- and that the instant disbarment case should be dismissed for bein% premature, considerin% the pendency of cases before the SEC and the @e%ional +rial Court of Namboan%a involvin% him and complainant. Based on the pleadin%s and position papers submitted by the parties, Commissioner @enato Cunanan, in his report2 dated uly 2, 2444, recommended respondentGs disbarment based on the followin% findin%s< 7A. +he complainant, @osaura aldon5Cordon and her dau%hter, @osemarie were stoc'holders of a corporation, to%ether with respondent, named @osaura Enterprises, nc. 7"er the Articles of ncorporation mar'ed as Anne& AG of ComplainantGs "osition "aper, complainantGs subscription consists of 33R of the outstandin% capital stoc' while her dau%hterGs consists of 2:R, %ivin% them a total of 9R. @espondentGs holdin%s consist of =R while three other incorporators, @osauro #. Alvare8, icente +. MaTalac and $arhan S. 6raciano each held 2R of the capital stoc' of the corporation. 7B. 1n April 3, 24:2, complainant and her dau%hter @osemarie aldon e&ecuted two $eeds of +ransfer and Assi%nment conveyin% and transferrin% to the corporation 24 parcels of land in e&chan%e for shares of stoc' in the corporation. 7& & &
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7C. Both $eeds of Assi%nment particularly pa%e 9 thereof indicate that respondent accepted said assi%nment of properties and titles in behalf of the corporation as +reasurer. +he deeds were si%ned on April 3, 24:2. 7& & &
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&&&
7+o%ether, therefore, complainant and her dau%hter owned 2,22 shares of the 2,3; shares comprisin% the authori8ed capital stoc' of the corporation of 4R thereof. 7o increase in capitali8ation was applied for by the corporation. 70. @espondent claims in his Comment, his Answer and his "osition "aper that on April , 24:2 he was elected as Chairman and $irector and on April 3, 24:2 he was elected "resident of the corporation. @espondentGs own Anne&es mar'ed as 6G and 652G of his Comment show that on April , 24:2 he was not only elected as Chairman and $irector as he claims but as $irector, Board Chairman and "resident.G +he purported minutes was only si%ned by respondent and an actin% Secretary by the name of icente MaTalac. 7Said Anne& does not show who was elected +reasurer. 7@espondentGs Anne& /G and /52G shows that in the alle%ed or%ani8ational meetin% of the directors on April 3, 24:2 a certain 0arnacio Bucoy was elected +reasurer. BucoyGs name does not appear as an incorporator nor a stoc'holder anywhere in the documents submitted. 7+he purported minutes of the or%ani8ational meetin% of the directors was si%ned only by respondent Balicanta and a Secretary named erisimo Martin. 76. Since respondent was elected as $irector, Chairman and "resident on April , 24:2 as respondentGs own Anne&es 6G to 652G would show, then complainantGs claim that respondent was li'ewise actin% as +reasurer of two corporations bear truth and credence as respondent si%ned and accepted the titles to 24 parcels of land ceded by the complainant and her dau%hter, as +reasurer on April 3, 24:2 after he was already purportedly elected as Chairman, "resident and $irector.
7/. @espondent misleads the Commission into believin% that all the directors si%ned the minutes mar'ed as E&hibit /G to /52G by statin% that the same was duly si%ned by all the Board of $irectorsG when the document itself shows that only he and one erisimo Martin si%ned the same. 7/e also claims that all the stoc'holders si%nedG the minutes of or%ani8ational meetin% mar'ed as Anne&es 6G and 652G of his Comment yet the same shows that only the actin% Chairman and actin% Secretary si%ned. 7. @espondent claims that the Board or its representative was authori8ed by the stoc'holders comprisin% =H9 of the outstandin% capital stoc', as reDuired b y law, to mort%a%e the parcels of land belon%in% to the corporation, which were all assi%ned to the corporation by complainant and her dau%hter, by virtue of Anne& G and 52G< attached to his Comment. 7+he sub>ect attachment however reveals that only the followin% persons si%ned their conformity to the said resolution< respondent Balicanta who owned 2;4 shares, icente MaTalac (2 share), $aihan 6raciano (2 share). 7Complainants who collectively held a total of 2,22 shares out of the 2,3; outstandin% capital stoc' of the corporation were not represented in the purported stoc'holdersG meetin% authori8in% the mort%a%e of the sub>ect properties. 7+he =H9 vote reDuired by law was therefore not complied with yet respondent proceeded to mort%a%e the sub>ect 4 parcels of land by the corporation. 7. @espondent further relies on Anne& G of his Comment, purportedly the minutes of a special meetin% of the Board of $irectors authori8in% him to obtain a loan and mort%a%e the properties of the corporation dated Au%ust =4, 24:2. +his claim is baseless. +he reDuired ratification of =H9 by the stoc'holders of records was not met. A%ain, respondent attempts to mislead the Commission and Court. 7F. 0urther, the constitution of the Board is dubious. +he alle%ed minutes of the or%ani8ational meetin% of the stoc'holders electin% the members of the Board, have not been duly si%ned by the stoc'holders as shown in respondentGs anne& 6G which was purportedly the or%ani8ational meetin% of the stoc'holders. 7#. Also, Anne& G of respondentGs Comment which purportedly authori8ed him to obtain a loan and to mort%a%e the 4 parcels of land was only si%ned by himself and a secretary. 7M. n said Anne& ** of respondentGs Comment he stated that complainant @osaura Cordon was on leave by virtue of a votin% trust a%reement alle%edly e&ecuted by complainant in his favor coverin% all her shares of stoc'.G +he claim is baseless. +he votin% trust referred to by respondent (anne& $G of his Comment), even if it were assumed to be valid, covered only = shares of complainants yet she owned a total of 2,;94 shares after she and her dau%hter ceded in favor of the corporation 24 parcels of land. 7Bein% a former lawyer to complainant, respondent should have ensured that her interest was safe%uarded. Iet, complainant was apparently and deliberately left our (sic) on the prete&t that, she had e&ecuted a votin% trust a%reement in favor of respondent. 7t is suspicious that complainant was made to si%n a votin% trust a%reement on =2 Au%ust 24:2 and immediately thereafter, the resolutions authori8in% respondent to obtain a loan and to mort%a%e the 4 parcels of land were passed and approved. 7. t is also hi%hly irre%ular for respondent who is a lawyer, to allow a situation to happen where, with the e&clusion of complainant as director the result was that there remained only members of the Board,. 71. @espondentGs own pleadin%s submitted to the Commission contradict each other. 72. 0or instance, while in his Comment respondent $EES that he employed deceit and machination in convincin% the complainant and her dau%hter to si%n the articles of incorporation of @osaura Enterprises and in cedin% to the corporation 24 parcels of land in Namboan%a City, because they freely, intelli%ently and voluntarily si%nedG the same, yet, in his "osition "aper, respondent too' another stance. 7n para%raphs 2.2 and 2.= of his "osition "aper which was submitted 2= years later, respondent claimed that it was actually the idea of Atty. @osaura #. Alvare8G that a corporation be put up to incorporate the estate of the late 0eli&berto $. aldon. 7=. #i'ewise, respondent claimed that complainant and her dau%hter were not directors, hence they were not notified of meetin%s, in para%raph =5 (c) of his Comment he blamed the other stoc'holders and directors for the corporationGs inability to comply with the #and Ban'Gs demands sayin% that they
have consistently failed since 24:= to convene (2.) for the annual stoc'holdersG meetin%s and (i.i) for the monthly board meetin%G. 7/is own pleadin%s claim that he had been the ChairmanH"resident since 24:2 to the present. f (sic) so, it was his duty to convene the stoc'holders and the directors for meetin%s. 7@espondent appeared able to convene the stoc'holders and directors when he needed to ma'e a loan of p=.= million- when he sold the corporationGs ri%ht of redemption over the foreclosed properties of the corporation to amman%, when he sold one parcel of land covered by +C+ =,:; to amman% in addition to the 4 parcels of land which were foreclosed, and when he sold the complainantGs ancestral home covered by +C+ o. =,;;. 7t is thus stran%e why respondent claims that the corporation could not do anythin% to save the corporationGs properties from bein% foreclosed because the stoc'holders and directors did not convene. 7+his assertion of respondent is clearly evident of dishonest, deceitful and immoral conduct especially because, in all his acts constitutin% conveyances of corporate property, respondent used minutes of stoc'holdersG and directorsG meetin%s si%ned only by him and a secretary or si%ned by him and persons who were not incorporators much less stoc'holders. 7t is worthy of note that in respondentGs E&hibits 23, 2, 2 and 2: of his position paper, there were new stoc'holders and complainant appeared to have only = shares to her name while her dau%hter @osemarie had no shares at all. @espondent did not present any proof of conveyance of shares by complainant and her dau%hter. 7t is further worth notin% that complainantGs votin% trust (anne& $G of respondentGs Comment) where she alle%edly entrusted = shares to respondent on Au%ust =2, 24:2 had only a validity of 3 years. +hus, she should have had her entire holdin%s of 2,=:9 shares bac' in her name in Au%ust 24:. 7@espondentGs purported minutes of stoc'holdersG meetin% (E&hs. 23G and 2G) do not reflect this. 7+here was no e&planation whatsoever from respondent on how complainant and her dau%hter lost their 4R control holdin% in the corporation. 79. As a further contradiction in respondentGs pleadin%s, we note that in para%raph =..C of his Comment he said that only recently, this year, 24:3, the complainant and her aforenamed dau%hter e&amined said voluminous supportin% receiptsHdocuments which had previously been e&amined by the #and Ban' for loan releases, durin% which occasion respondent su%%ested to them that the corporation will have to hire a full5time boo'5'eeper to put in order said voluminous supportin% receiptsHdocuments, to which they adversely reacted due to lac' of corporate money to pay for said boo'5'eeper.G But in respondentGs "osition "aper par. .9 he stated that< Anyway, it is not the respondent but rather the complainant who should render a detailed accountin% to the corporation of the corporate records as well as corporate revenuesHincome precisely becausesince 244 to the present< (a). +he corporate part5time boo'5'eeper Edilberto Benedicto, with the indispensable connivance and insti%ation of the complainant and her dau%hter, amon% others, has custody of the corporate records, &&&G 7. n other contradictory stance, respondent claims in par. .9 of his position paper that complainant and her dau%hter sabota%ed the BCC operations of the corporation by ille%ally ta'in% over actual control and supervision thereof sometime in 24:, &&&G 7Iet respondentGs own e&hibits in his position paper particularly E&hibit 23 and 2 where the sub>ect of the foreclosed properties of the corporation comprisin% the Baliwasan Commercial Center (BCC) was ta'en up, complainant and her dau%hter were not even present nor were they the sub>ect of the discussion, belyin% respondentGs claim that the complainant and her dau%hter ille%ally too' actual control of BCC. 73. 1n the matter of the receipts issued by respondent evidencin% payment to him of rentals by lessees of the corporation, attached to the complaint as Anne&es /G to /52G, respondent claims that the receipts are temporary in nature and that subseDuently re%ular corporate receipts were issued. 1n their face however the receipts clearly appear to be official receipts, printed and numbered duly si%ned by the respondent bearin% his printed name. 7t is difficult to believe that a lawyer of respondentG stature would issue official receipts to lessees if he only meant to issue temporary ones.
7. ith re%ard to respondentGs claim that the complainant consented to the sale of her ancestral home, covered by +C+ o. +5=,;; to one +ion Suy 1n% for which he attached as E&hibit == to his "osition "aper the minutes of an annual meetin% of the stoc'holders, it behooves this Commission why complainantGs si%nature had to be accompanied b y her thumb mar'. 0urthermore, complainantGs si%nature appears unstable and sha'y. +his 1ffice is thus persuaded to believe complainantGs alle%ation in para%raph 9b of her position paper that since September 244= up to March 2449 she was bein% detained by one "1U (sic) oel Constantino and his wife under instructions from respondent Balicanta. 7+his conclusion is supported by a letter from respondent dated March 2449, Anne& /G of complainantGs position paper, where respondent ordered "olice 1fficer Constantino to allow Atty. #inda #im and @osemarie aldon to tal' to +ita @osin%.G 7+he complainantGs thumb mar' to%ether with her visibly unstable sha'y si%nature lends credence to her claim that she was detained in the far flun% barrio of Culianan under instructions of respondent while her ancestral home was demolished and the lot sold to one +ion Suy 1n%. 7t appears that respondent felt compelled to over5ensure complainantGs consent by %ettin% her to affi& her thumb mar' in addition to her si%nature. 7. @espondent li'ewise denies that he also acted as Corporate Secretary in addition to bein% the Chairman, "resident and +reasurer of the corporation. Iet, respondent submitted to this commission documents which are supported to be in the possession of the Corporate Secretary such as the stoc' and transfer boo' and minutes of meetin%s. 7+he fore%oin% findin%s of this Commission are virtual smo'in% %uns that prove on no uncertain terms that respondent, who was the le%al counsel of complainant in the latter part of the settlement of the estate of her deceased husband, committed unlawful, immoral and deceitful conduct proscribed by @ule 2.;2 of the code of professional responsibility. 7#i'ewise, respondent clearly committed a violation of Canon 23 of the same code which provides that A lawyer should observe candor fairness and loyalty in all his dealin%s and transactions with his client.G 7@espondentGs acts %ravely diminish the publicGs respect for the inte%rity of the profession of law for which this Commission recommends that he be meted the penalty of disbarment. 7+he pendency of the cases at the SEC and the @e%ional +rial Court of Namboan%a filed by complainant a%ainst respondent does not preclude a determination of respondentGs culpability as a lawyer. 7+his Commission cannot further delay the resolution of this complaint filed in 24:3 by complainant, and old widow who deserves to find hope and recover her confidence in the >udicial system. 7+he findin%s of this office, predominantly based on documents adduced by both parties lead to only one rather unpalatable conclusion. +hat respondent Atty. esus 0. Balicanta, in his professional relations with herein complainant did in fact employ unlawful, dishonest, and immoral conduct proscribed in no uncertain terms by @ule 2.;2 of the Code of "rofessional @esponsibility. n addition, respondentGs actions clearly violated Canon 23 to 2 of the same Code. 7t is therefore our unpleasant duty to recommend that respondent, havin% committed acts in violation of the Canons of "rofessional @esponsibility, thereby causin% a %reat disservice to the profession, be meted the ultimate sanction of disbarment.7 = 1n September 9;, 2444, while Commissioner CunananGs recommendation for respondentGs disbarment was pendin% review before E&ecutive ice5"resident and orthern #u8on 6 overnor +eofilo "ilando, respondent filed a motion reDuestin% 7for a full5blown investi%ation and for invalidation of the entire proceedin%s andHor remedial action under Section 22, @ule 2945B, @evised @ules of Court,7 alle%in% that he had evidence that Commissioner CunananGs report was drafted by the lawyers of complainant, Attys. Antonio Cope and @ita #inda imeno. /e presented two unsi%ned anonymous letters alle%edly comin% from a dis%runtled employee of Attys. Cope and imeno. /e claimed to have received these letters in his mailbo&. 9 @espondentGs motion alle%in% that Attys. Antonio Cope and @ita #inda imeno drafted Commissioner CunananGs report was accompanied by a complaint prayin% for the disbarment of said lawyers includin% Commissioner Cunanan. +he complaint was doc'eted as CB$ Case o. 4453:. After Attys. Cope and imeno and Commissioner Cunanan filed their answers, a hearin% was conducted by the nvesti%atin% Committee of the B" Board of 6overnors.
1n May =, =;;2, the B" Board of 6 overnors issued a resolution dismissin% for lac' of merit the complaint for disbarment a%ainst Attys. Cope and imeno and Commissioner Cunanan. And in Adm. Case o. =4, the Board adopted and approved the report and recommendation of Commissioner Cunanan, and meted a%ainst herein respondent Balicanta the penalty of suspension from the practice of law for 3 years 7for commission of acts of misconduct and disloyalty by ta'in% undue and unfair advanta%e of his le%al 'nowled%e as a lawyer to %ain material benefit for himself at the e&pense of complainant @osaura ". aldon5Cordon and caused serious dama%e to the complainant.73 +o support its decision, the Board uncovered respondentGs fraudulent acts in the very same documents he presented to e&onerate himself. t also too' note of respondentGs contradictory and irreconcilable statements in the pleadin%s and position papers he submitted. /owever, it re%arded the penalty of disbarment as too severe for respondentGs misdeeds, considerin% that the same were his first offense. "ursuant to Section 2= (b), @ule 2945B of the @ules of Court, the said resolution in Administrative Case o. =4 imposin% the penalty of suspension for 3 years on respondent was automatically elevated to this Court for final action. 1n the other hand, the dismissal of the complaint for disbarment a%ainst Attys. Cope and imeno and Commissioner Cunanan, doc'eted as CB$ Case o. 4453:, became final in the absence of any petition for review. +his Court confirms the duly supported findin%s of the B" Board that respondent committed condemnable acts of deceit a%ainst his client. +he fraudulent acts he carried out a%ainst his client followed a well thou%ht of plan to misappropriate the corporate properties and funds entrusted to him. At the very outset, he embar'ed on his devious scheme by ma'in% himself the "resident, Chairman of the Board, $irector and +reasurer of the corporation, althou%h he 'new he was prohibited from assumin% the position of "resident and +reasurer at the same time. : As +reasurer, he accepted in behalf of the corporation the 24 titles that complainant and her dau%hter co5owned. +he other treasurer appointed, 0arnacio Bucoy, did not appear to be a stoc'holder or director in the corporate records. +he minutes of the meetin%s supposedly electin% him and Bucoy as officers of the corporation actually bore the si%natures of respondent and the secretary only, contrary to his claim that they were si%ned by the directors and stoc'holders. /e li'ewise misled the B" investi%atin% commission in claimin% that the mort%a%e of 4 of the properties of the corporation previously belon%in% to complainant and her dau%hter was ratified by the stoc'holders ownin% two5thirds or R of the outstandin% capital stoc' when in fact only three stoc'holders ownin% 222 out of 2,3; outstandin% shares or .9R assented thereto. +he alle%ed authori8ation %rantin% him the power to contract the #B" loan for +wo Million +wo /undred +wenty "esos ("=,==;,;;;) was also not approved by the reDuired minimum of two5thirds of the outstandin% capital stoc' despite respondentGs claim to the contrary. n all these transactions, complainant and her dau%hter who both owned 2,22 out of the 2,3; outstandin% shares of the corporation or 4.R never had any participation. either were they informed thereof. Clearly, there was no Duorum for a valid meetin% for the discussion and approval of these transactions. @espondent cannot ta'e refu%e in the contested votin% trust a%reement supposedly e&ecuted by complainant and her dau%hter for the reason that it authori8ed respondent to represent complainant for only = shares. Aside from the dishonest transactions he entered into under the cloa' of sham resolutions, he failed to e&plain several discrepancies in his version of the facts. e hereby reiterate some of these statements noted by Commissioner Cunanan in his findin%s. 0irst, respondent blamed the directors and the stoc'holders who failed to convene for the reDuired annual meetin%s since 24:=. /owever, respondent appeared able to convene the stoc'holders and directors when he contracted the #B" debt, when he sold to amman% the corporationGs ri%ht of redemption over the foreclosed properties of the corporation, when he sold one parcel of land covered by +C+ o. =:; to amman%, when he mort%a%ed the 4 parcels of land to #B" which later foreclosed on said mort%a%e, and when he sold the complainantGs ancestral home covered by +C+ o. =;;. Second, the factual findin%s of the investi%atin% commission, affirmed by the B" Board, disclosed that complainant and her dau%hter own 2,22 out of 2,3; shares of the outstandin% capital stoc' of the corporation, based on the Articles of ncorporation and deeds of transfer of the properties. But respondentGs evidence showed that complainant had only = shares of stoc' in the corporation while her dau%hter had none, notwithstandin% the fact that there was nothin% to indicate that complainant and her dau%hter ever conveyed their shares to others. @espondent li'ewise did not e&plain why he did not return the certificates representin% the = shares after the lapse of 3 years from the time the votin% trust certificate was e&ecuted in 24:2. 4 +he records show that up to no w, the complainant and her dau%hter own 4R of the outstandin% shares but respondent never bothered to e&plain why they were never as'ed to participate in or why they were never informed of important corporate decisions. +hird, respondent, in his comment, alle%ed that due to the ob>ection of complainant and her dau%hter to his proposal to hire an accountant, the corporation had no formal accountin% of its revenues and income. /owever, respondentGs
position paper maintained that there was no accountin% because the part5time boo''eeper of the corporation connived with complainant and her dau%hter in 'eepin% the corporate records. 0ourth, respondentGs claim that complainant and her dau%hter too' control of the operations of the corporation in 24: is belied by the fact that complainant and her dau%hter were not even present in the alle%ed meetin% of the board (which too' place after 24:) to discuss the foreclosure of the mort%a%ed properties. +he truth is that he never informed them of such meetin% and he never %ave control of the corporation to them. 0ifth, Commissioner Cunanan found that< 73. on the matter of the receipts issued by respondent evidencin% payment to him of rentals by lessees of the corporation, attached to the complaint as Anne&es /G to /52G, respondent claims that the receipts are temporary in nature and that subseDuently re%ular corporate receipts were issued. 1n their face however the receipts clearly appear to be official receipts, printed and numbered duly si%ned by the respondent bearin% his printed name. 7t is difficult to believe that a lawyer of respondentGs stature would issue official receipts to lessees if he only meant to issue temporary ones.7 2; Si&th, respondent denies that he acted as Corporate Secretary aside from bein% the Chairman, "resident and +reasurer of the corporation. Iet respondent submitted to the investi%atin% commission documents which were supposed to be in the official possession of the Corporate Secretary alone such as the stoc' and transfer boo' and minutes of meetin%s. Seventh, he alle%ed in his comment that he was the one who proposed the establishment of the corporation that would invest the properties of the complainant but, in his position paper, he said that it was a certain Atty. @osauro Alvare8 who made the proposal to put up the corporation. After a thorou%h review of the records, we find that respondent committed %rave and serious misconduct that casts dishonor on the le%al profession. /is misdemeanors reveal a deceitful scheme to use the corporation as a means to convert for his own personal benefit properties left to him in trust by complainant and her dau%hter. ot even his deviousness could cover up the wron%doin%s he committed. +he documents he thou%ht could e&culpate him were the very same documents that revealed his immoral and shameless ways. +hese documents were e&tremely revealin% in that they unmas'ed a man who 'new the law and abused it for his personal %ain without any Dualms of conscience. +hey painted an intricate web of lies, deceit and opportunism beneath a carefully crafted smo'escreen of corporate maneuvers. +he Code of "rofessional @esponsibility mandates upon each lawyer, as his duty to society, the obli%ation to obey the laws of the land and promote respect for law and le%al processes. Specifically, he is forbidden to en%a%e in unlawful, dishonest, immoral or deceitful conduct. 22 f the practice of law is to remain an honorable profession and attain its basic ideal, those enrolled in its ran's should not only master its tenets and principles but should also, in their lives, accord continuin% fidelity to them. 2= +hus, the reDuirement of %ood moral character is of much %reater import, as far as the %eneral public is concerned, than the possession of le%al learnin%. 29 #awyers are e&pected to abide by the tenets of morality, not only upon admission to the Bar but also throu%hout their le%al career, in order to maintain oneGs %ood standin% in that e&clusive and honored fraternity.2 6ood moral character is more than >ust the absence of bad character. Such character e&presses itself in the will to do the unpleasant thin% if it is ri%ht and the resolve not to do the pleasant thin% if it is wron%. 23 +his must be so because 7vast interests are committed to his care- he is the recipient of unbounded trust and confidence- he deals with his clientGs property, reputation, his life, his all.72 ndeed, the words of former "residin% ustice of the Court of Appeals "ompeyo $ia8 cannot find a more relevant application than in this case< 7+here are men in any society who are so self5servin% that they try to ma'e law serve their selfish ends. n this %roup of men, the most dan%erous is the man of the law who has no conscience. /e has, in the arsenal of his 'nowled%e, the very tools by which he can poison and disrupt society and brin% it to an i%noble end.7 2 6ood moral standin% is manifested in the duty of the lawyer 7to hold in trust all moneys and properties of his client that may come into his possession.7 2: /e is bound 7to account for all money or property collected or received for or from the client.7 24 +he relation between an attorney and his client is hi%hly fiduciary in nature. +hus, lawyers are bound to promptly account for money or property received by them on behalf of their clients and failure to do so constitutes professional misconduct. =; +his Court holds that respondent cannot invo'e the separate personality of the corporation to absolve him from e&ercisin% these duties over the properties turned over to him by complainant. /e blatantly used the corporate veil to defeat his fiduciary obli%ation to his client, the complainant. +oleration of such fraudulent conduct was never the reason for the creation of said corporate fiction.
+he massive fraud perpetrated by respondent on the complainant leaves us no choice but to set aside the veil of corporate entity. 0or purposes of this action therefore, the properties re%istered in the name of the corporation should still be considered as properties of complainant and her dau%hter. +he respondent merely held them in trust for complainant (now an ailin% :95year5old) and her dau%hter. +he properties conveyed fraudulently andHor without the reDuisite authority should be deemed as never to have been transferred, sold or mort%a%ed at all. @espondent shall be liable, in his personal capacity, to third parties who may have contracted with him in %ood faith. Based on the aforementioned findin%s, this Court believes that the %ravity of respondentGs offenses cannot be adeDuately matched by mere suspension as recommended by the B". nstead, his wron%doin%s deserve the severe penalty of disbarment, without pre>udice to his criminal and civil liabilities for his dishonest acts. /E@E01@E, respondent Attorney esus +. Balicanta is hereby $SBA@@E$. +he Cler' of Court is directed to stri'e out his name from the @oll of Attorneys. S1 1@$E@E$.
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