In this petition for certiorari  under Rule 65 of the Revised Rules of Court petitioner assails the decision of public respondent NLRC dated 20 December 1993 ordering the reinstatement of petitioner but without backwages. The NLRC's resolution dated 28 February 1994 denying petitioner's motion for reconsideration is likewise impugned.

The facts are hereunder narrated:

Petitioner began her employment with private respondent JRS Business Corporation (JRS), which is engaged in messengerial services, on 11 June 1991 as a counter-clerk trainee at the rate of P75.00 a day which was increased a week later to P106.00. Petitioner was assigned to the lobby office of the Pines Theater in Baguio City.

On 26 August 1991, petitioner received an inter-office memorandum informing her other appointment as a probationary employee for a period of six (6) months effective on the same date.

On 13 February 1992, JRS, through its personnel manager Mr. Hernany P. Baure, sent petitioner an inter-office memorandum^[1]terminating her services on grounds of unsatisfactory performance stating that petitioner failed "to meet the standard performance set by the company." Said dismissal took effect on 15 February 1992, the same date petitioner received the aforementioned memorandum.

The decision of JRS to terminate petitioner's services was based on the report/recommendation dated 4 February 1992 submitted by its manager Mr. Roseller Layug. The pertinent portion of the aforementioned report read as follows:

I am respectfully recommending that her employment be terminated the soonest. During her employment, she was found to be violating Company rules and regulations despite repeated demand from the management to cease the same. The violations like abandoning her place of work during office hours without prior permission from the management, not wearing the proper dress as prescribed by the Company, always late from work, commission of absences and her attitude and/or character is not suited in our operations. She was inefficient in her work. Productivity is very low and needs prodding to do a job.^[2]

Consequently, petitioner filed a complaint for illegal dismissal, violation of labor standards pertaining to the payment of wages and demanded reinstatement, damages and attorney's fees.

On 30 July 1993, Labor Arbiter Irenarco R. Rimando rendered a decision in favor of petitioner, the dispositive portion of which reads thus:

VIEWED FROM THIS LIGHT, judgment is hereby rendered declaring that complainant was illegally dismissed. Consequently, respondents are hereby directed to reinstate her to her former position, without loss of seniority rights and other privileges and to pay her full backwages and allowances in the amount of FIFTY TWO THOUSAND EIGHT HUNDRED FIFTEEN PESOS and EIGHTY FOUR CENTAVOS (P52,815.84) plus her salary differentials in the amount of TWO THOUSAND AND FIFTEEN PESOS (P2,015.00). Respondents are hereby directed to pay ten percent (10%) of the award as attorney's fees.

SO ORDERED.^[3]

On 20 December 1993, upon appeal by JRS, the NLRC rendered a decision affirming the order of reinstatement of petitioner. However, it deleted the award of backwages and attorney's fees. The dispositive portion states thus:

WHEREFORE, the Decision dated July 30, 1993 is hereby MODIFIED. Respondents are directed to reinstate complainant to her former position or equivalent position without loss of seniority rights but without backwages. The award of attorney's fees is likewise deleted. Other findings stand affirmed.

SO ORDERED.^[4]

Petitioner's motion for reconsideration dated 3 February 1994 was denied by the NLRC in its Resolution of 28 February 1994.

Hence, this appeal civil action for certiorari wherein petitioner assigned the following errors:

1. THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN DENYING PETITIONER'S PAYROLL BACKWAGES AS MANDATED IN ARTICLE 223 OF THE LABOR CODE WHICH MEANS HER BACKWAGES DURING THE PERIOD FOLLOWING THE DECISION REINSTATING HER WHICH IS IMMEDIATELY EXECUTORY EVEN PENDING APPEAL, CONSIDERING THAT PRIVATE RESPONDENT REFUSED PETITIONER TO BE ACTUALLY REINSTATED.

2. THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN DELETING THE BACKWAGES AND ATTORNEY'S FEES AS AWARDED BY THE LABOR ARBITER, IN SPITE OF THE FINDING THAT PETITIONER WAS ILLEGALLY DISMISSED.^[5]

Invoking the third paragraph of Article 223 of the Labor Code which states that:

Art. 223. Appeal.

xxx

In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall be immediately executory, even pending appeal. The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The posting of the bond by the employer shall not stay the execution for reinstatement provided herein.

petitioner insists that she is entitled to payroll backwages from the date of the labor arbiter's decision ordering her reinstatement up to either the finality of the NLRC's decision or her actual reinstatement. Petitioner contends that, by implication, JRS chose payroll reinstatement over actual reinstatement in view of the latter's failure to reinstate petitioner to her former position during the pendency of its appeal before the NLRC. More importantly, petitioner asserts that a motion for execution and a writ of execution are not required to implement the aforequoted provision since the same, by its own terms, is "immediately executory even pending appeal," otherwise, the purpose of the law mandating immediate reinstatement of the dismissed employee would be defeated.

Petitioner's contentions are unmeritorious.

It is judicially settled that in order to implement the Labor Arbiter's order of reinstatement a writ of execution is imperative, either upon motion of the dismissed employee or the Labor Arbiter's own initiative. In the recent case of Archilles Manufacturing Corporation v. NLRC,^[6] we expounded thus:

As regards the first issue, i.e., whether a writ of execution is still necessary to enforce the Labor Arbiter's order of immediate reinstatement even when pending appeal, we agree with petitioners that it is necessary. x x x

We have fully explained the legal basis for this conclusion in Maranaw Hotel Resort Corporation (Century Park Sheraton Manila) v. NLRC and Gina G. Castro thus -

It must be stressed, however, that although the reinstatement aspect of the decision is immediately executory, it does not follow that it is self-executory. There must be a writ of execution which may be issued motu proprio or on motion of an interested party. Article 224 of the Labor Code provides:

Art. 224. Execution of decisions, orders or awards.- (a) The Secretary of Labor and Employment or any Regional Director, the Commission or any Labor Arbiter, or med-arbiter or voluntary arbitrator may, motu proprio or on motion of any interested party, issue a writ of execution on a judgment within five (5) years from the date it becomes final and executory x x x.

The second paragraph of Section 1, Rule XVIII of the New Rules of Procedure of the NLRC also provides:

The Labor Arbiter, POEA Administrator, or the Regional Director, or his duly authorized hearing officer of origin shall, motu proprio or upon motion of any interested party, issue a writ of execution on a judgment only within five (5) years from the date it becomes final and executory x x x. No motion for execution shall be entertained nor a writ be issued unless the Labor Arbiter is in possession of the records of the case which shall include an entry of judgment.

In the absence x x x of an order for the issuance of a writ of execution on the reinstatement aspect of the decision of the Labor Arbiter, the petitioner was under no legal obligation to admit back to work the private respondent under the terms and conditions prevailing prior to her dismissal or, at the petitioner's option, to merely reinstate her in the payroll. An option is a right of election to exercise a privilege, and the option in Article 223 of the Labor Code is exclusively granted to the employer. The event that gives rise for its exercise is not the reinstatement decree of the Labor Arbiter, but the writ for its execution commanding the employer to reinstate the employee, while the final act which compels the employer to exercise the option is the service upon it of the writ of execution when, instead of admitting the employee back to his work, the employer chooses to reinstate the employee in the payroll only. If the employer does not exercise this option, it must forthwith admit the employee back to work, otherwise it may be punished for contempt.

In the case at bench, there was no occasion for petitioners to exercise their option under Art. 223 of the Labor Code in connection with the reinstatement aspect of the decision of the Labor Arbiter. The motions of private respondents for the issuance of a writ of execution were not acted upon by NLRC. It was not shown that respondents exerted efforts to have their motions resolved. They are deemed to have abandoned their motions for execution pending appeal x x x.

Likewise, in Supercars, Inc. v. Minister of Labor and Employment,[7] we held:

Indeed, there is no doubt that the order dated August 1, 1983 is immediately executory. This being the case, the private respondents should have moved for the issuance of a writ of execution of said order even while the motion for reconsideration is still pending. It is significant to note that no mention was made of a motion for execution having been filed and it was only on August 29, 1985 when the Regional Director ordered the issuance of the writ of execution, motu proprio.

It is fitting to mention again our observation in National Steel Corporation vs. National Labor Relations Commission, et al., supra to wit:

What obviously cause the delay was the sheer inaction of private respondent who was entitled to enforce it. Under the circumstances, it would definitely be offensive to justice and fair play to hold petitioner liable for the consequence of such inaction.

In the present case petitioner was similarly negligent. The record is bereft of any evidence that petitioner endeavored to have the Labor Arbiter's order of reinstatement immediately enforced by means of a motion for execution. Absent a writ of execution issued and served upon JRS, the latter was not formally and appropriately given the chance to choose between actual and payroll reinstatement. Hence, due to her own inaction we are constrained to deny petitioner's prayer for payroll backwages.

Proceeding to the second issue, petitioner assails the following findings of the NLRC:

There is no dispute that complainant committed infractions. In fact, complainant admitted the same in her letters of explanations. (Annexes" 8", "9" and "10", Respondent's Position Paper, Records, pp. 50, 51 & 52). But, whether or not such infractions constitute serious misconduct is dubitable.

The infractions referred to by respondent are:

1) late in reporting for work on January 2, 1992 - 8:5 a.m. (Annex "2", Ibid. Records, p. 37)

2) leaving the place of work during office hour without permission on January 16, 1992 (Annex "3", Ibid, Records, p. 38) and January 17, 1992 (Annex "4-B", Ibid, Records, p. 42).

It appears that complainant was assigned in one of the respondent's stations, specifically at Pines Theater. She has to time-in first at respondent's main office (Session Road) before reporting to her assigned post (See Annex "3"). Allegedly on January 16 and 17, 1992, complainant did not proceed directly to her assigned post after she timed in at the main office. She arrived thereat only at around 9:00 a.m. The reason she gave was that she settled her long overdue account (Annex "10", Supra). She also reasoned out that nevertheless, the Pines Theater usually opens at 8:45 a.m. or even later.

Anent her being late, complainant alleged that it was because she attended to pay long overdue bills and had pre-natal check-up.

To our mind, the above infractions committed by complainant do not constitute serious misconduct as to be meted the capital punishment of dismissal. While complainant is not faultless, capital punishment is not warranted. Hence, under the circumstances we find complainant entitled to reinstatement but without backwages. For it has been held that where a penalty less punitive would suffice, the supreme penalty of dismissal should not be visited (Almira vs. B.F. Goodrich, 58 SCRA 120).^[8]

Petitioner contends that the NLRC committed grave abuse of discretion when it deleted the award of backwages and attorney's fees despite affirming the Labor Arbiter's finding that petitioner was illegally dismissed. To support her argument petitioner cites the case of Salaw v. NLRC^[9] which reiterated the rule laid down in Santos v. NLRC^[10] that "the normal consequences of a finding that an employee has been illegally dismissed are, firstly, that the employee becomes entitled to reinstatement to his former position without loss of seniority rights and, secondly, the payment of backwages corresponding to the period from illegal dismissal up to actual reinstatement."

Petitioner further argues that her tardiness on two occasions is not enough to justify denial of her right to backwages.

On the contrary, the Solicitor General posits that the Salaw ruling does not apply to the instant case because petitioner, by her own admission, violated the company rule against tardiness.

The Solicitor General further argues as follows:

Thus, while the series of infractions committed by the petitioner cannot be considered serious misconduct inimical to the interest of the company, they should be stopped before they exceed the bounds of reason or moderation. Petitioner's conduct should be dealt with by meting out appropriate sanctions if only to imprint deference to company rules and regulations. Considering however that aside from these two minor infractions no other misconduct could be attributed to petitioner, dismissal is too severe a penalty to impose. In the case of Cruz v. Minister of Labor and Employment, 120 SCRA 15, this Honorable Court ruled:

The court is convinced that petitioner's guilt was substantially established. Nevertheless, we agree with respondent Minister's order of reinstating petitioner without backwages instead of dismissal which may be too drastic. Denial of backwages would sufficiently penalize her for her infractions. The bank officials acted in good faith. They should be exempt from the burden of paying backwages. The good faith of the employer, when clear under the circumstances, may preclude or diminish recovery of backwages. Only employees discriminately dismissed are entitled to backpay. . . .

Similarly, the case of Itogon-Suyoc Mines, Inc. v. NLRC, et al., 119 SCRA 528 pronounced:

The ends of social and compassionate justice would therefore be served if private respondent is reinstated but without backwages in view of petitioner's good faith.

Hence, petitioner's reinstatement without backwages is justified.^[11]

As penalty for tardiness on one occasion and for leaving her post without permission in two other instances, does petitioner deserve to lose the backwages awarded to her by the Labor Arbiter? Put simply, this is the question we are tasked to resolved. In so doing we take as our barometer the long standing principle that the penalty imposed must be commensurate to the offense committed.^[12]

We are not unaware of several cases,^[13] (two of which were hereinabove cited) wherein this Court affirmed the deletion of the backwages to serve as appropriate punishment for the employee's infractions or misconduct. However, the factual circumstances of the present case must be distinguished from those of the aforementioned cases. A few minutes' tardiness on two or three instances are only minor infractions, which even the Solicitor General admits. The degree of the infractions, surely, does not warrant and does not justify the total withholding of petitioner's backwages. The more appropriate penalty would have been a warning, reprimand or probably even suspension. To take away petitioner's backwages is also too harsh a punishment.

Moreover, JRS' denial of due process to petitioner negates its (JRS) good faith. As found by the Labor Arbiter and affirmed by the NLRC:

On the aspect of due process, it would now seem that respondents relied merely on the recommendation of Mr. Layug, and the basis of which has not been made known to complainant, except when she received the notice of termination on February 15, 1992.

The complainant was separated on the very day that she received the notice of termination. Now, even if she was a probationer, she can only be removed for cause, as outlined in Article 282 of the Labor Code, and after due process.^[14]

Even the NLRC, in its assailed decision, stated thus:

In the termination letter of complainant, the ground invoked by respondent was her alleged failure to meet the performance standard (Annexes "E" and "15", supra). However, in its position paper, respondent capitalizes on her infractions contending that the same amounted to serious misconduct that would justify her dismissal.^[15]

The backwages awarded to petitioner cover merely the period from her dismissal up to July 1993 the date the Labor Arbiter rendered his decision. That petitioner will not receive any backwages from August 1993 until her actual reinstatement is sufficient punishment for her infractions.

Anent the award of attorney's fees, the NLRC deleted the same in the absence of evidence showing that JRC acted in bad faith or with malice.^[16]

The NLRC proceeded from the wrong premise. The Labor Arbiter, whose findings on this score were not disputed, awarded attorney's fees based on Art. 2208 (7) of the Civil Code which states that:

Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except:

xxx

(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;

xxx

In her original complaint petitioner explicitly included the recovery of her salary differentials and the Labor Arbiter ruled in this wise:

The record shows that, from June 11 up to August 26 the complainant was only paid P75.00 per day. At that time the prevailing rate was already P106.00 pesos. Article 1419 of the Civil Code provides:

When the law sets, or authorizes the setting of a minimum wage for laborers, and a contract is agreed upon by which a laborer accepts a lower wage, he shall be entitled to recover the deficiency.

In line with the above-cited law, complainant is entitled to recover the deficiency. Respondents should therefore pay the deficiency for sixty five (65) days in the amount of Two Thousand Fifteen Pesos (P2,015.00).

The undersigned Labor Arbiter shall refrain from awarding moral and exemplary damages to maintain a wholesome working atmosphere between complainant and respondents. Respondents are however directed to pay ten percent (10%) of the totality of the award, considering that at one time, they have withheld part of the wages that complainant should have earned, when they paid her only P75. 00 per day.^[17] (Italics ours.)

Hence, based on the foregoing, the award of backwages is hereby restored.

WHEREFORE, premises considered, the petition is partly GRANTED. The assailed resolution and decision of the NLRC are SET ASIDE and the decision of the Labor Arbiter is hereby REINSTATED. However, petitioner's prayer for salaries through payroll reinstatement is DENIED.

SO ORDERED.

Padilla, Bellosillo, Vitug, and Hermosisima, Jr., JJ., concur.

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[1] JRS BUSINESS CORPORATION

INTER-OFFICE MEMORANDUM
TO  : MS. PURIFICACION RAM/BAGUIO BRANCH
FROM: PERSONNEL MANAGER
SUBJECT: TERMINATION
DATE: FEBRUARY 13,1992

Result of the appraisal of your performance as a Counter Clerk covering period from August 26, 1991 up to the present is unsatisfactory. You failed to meet the standard performance set forth by the company.

In view thereof, your services is hereby terminated effective at the close of office hours on Saturday, February 15, 1992.

Please turn over to your Branch Manager, Mr. Roseller Layug, all accountable properties that may have been issued to you during your period of employment.

(Sgd.) Illegible

HERNANY P. BAURE
cc:Office of the Pres.
Accounting Dept.

Mr. R. Layug
Personnel/201 File
HPB/vmf   Signed: Virgie 2/17

Signed: Josie 2-17-92.

^[2] Rollo, p. 13.

^[3] Id., at 57-58.

^[4] Id., at 21.

^[5] Id., at 6.

^[6] 244 SCRA 750 (1995); see also Maranaw Hotel Resort Corporation v. NLRC, 238 SCRA 190 (1994).

^[7] 171 SCRA 667 (1989).

^[8] Rollo, pp. 19-20.

^[9] 202 SCRA 7 (1991).

^[10] 154 SCRA 166 (1987).

^[11] Rollo, pp. 201-202.

^[12] Caltex Refinery Employees Association (CREA) v. NLRC, 246 SCRA 271 (1995); Tanduay Distillery Labor Union v. NLRC, 239 SCRA 1 (1994); Catalan v. Genilo, 209 SCRA 544 (1992).

^[13] Pepsi Cola Distributors of the Philippines, Inc. v. NLRC 247 SCRA 386 (1995); Philippine Telegraph and Telephone Corporation v. NLRC, 183 SCRA 451 (1990); Manila Electric Company v. NLRC, 175 SCRA 277 (1989).

^[14] Rollo, pp. 55-56.

^[15] Id., at 19.

^[16] Id., at 21.

^[17] Id., at 57.