346 Phil. 432
KAPUNAN, J.:
Sec. 5. Failure to comply with official orders and/or perform regular assigned duties or specific instructions related to assigned duty.On August 20, 1987, Fernandez filed a complaint for illegal dismissal with claims for moral and exemplary damages.
Penalty: Reprimand to dismissal, depending upon the gravity of the offense.[2]
x x x.
Sec. 7, par. 8. - Soliciting or receiving money, gift, percentage or benefits from any person, personally or through mediation of another to perform an act prejudicial to the Company.
Penalty: Dismissal.
Sec. 7, par. 11. - All other acts of dishonesty which cause or tend to cause prejudice to the company.
Penalty: Subject to disciplinary action depending upon the gravity of the offense.[3]
WHEREFORE, premises considered, the respondent is hereby declared guilty of illegal dismissal and is hereby ordered to:1. Reinstate the complainant to his former position and to pay him full backwages and other benefits without loss of seniority right.
WHEREFORE, premises considered, the assailed decision of 15 April 1991 in this case is hereby Vacated and Set Aside and a new judgment entered, ordering respondent Manila Electric Company, to pay complainant Jesus (B.) Fernandez, the grand total sum (of) One Hundred Twenty Thousand, Five Hundred Fifty-Two and 80/100 (P120,552.80) Pesos, Philippine Currency broken down as follows:Unsatisfied, both Fernandez and MERALCO appealed the decision of the NLRC, docketed as G.R. Nos. 108444 and 108769, respectively. On May 5, 1993, this Court consolidated the two petitions.[6]
1. separation pay P 96,060.80; 2. emergency cost of living allowance while on payroll reinstatement pending appeal 5,490.00; 3. One (1) month pay mid-year bonus 7,601.00; 4. Proportionate 13th month pay for the period corresponding to his payroll reinstatement pending appeal 11,401.00 Grand Total P120,552.80
The rest of complainant's claim for want of merit are hereby Dismissed.[5]
1) Soliciting or receiving money from any person, personally or through the mediation of another to perform an act prejudicial to the Company (Sec. 7, Par. 8, Company Code on Employee Discipline).(Letter of Termination dated August 6, 1987 Exhibit "P" for petitioner).[8]
2) Load Splitting which is tantamount to failure to comply with official orders and/or to perform regular assigned duties or specific instructions related to duty (Sec. 5, Par. B(6) Code on Employee Discipline).
T 9 - Maari bang sabihin mo kung ano-ano (sic) ang inyong napag-usapan noong magkakaharap kayo sa Barrio Fiesta nina Jesus Fernandez at Felipe Rondez at isa pang electrician?This conspiracy theory does not hold.
S - Bukod doon sa hinihingi nilang P2,000.00 na ibinigay ko naman ay mayroon pa silang isang proposal tungkol din doon sa opisina. Ang sabi nila na ang opisina ay mayroon apat na aircon at itong mga aircon ay naka-jumper na sa loob ng isang taon hanggang ngayon. Ang gusto nila itong paggamit namin ng 4 na aircon ay ibi-bill kami sa loob ng isang taon sa halagang P1,000.00 bawa't aircon isang buwan. Kaya ang sabi nila para hindi kami mahirapan sa pagbayad sa buong halaga ay sina na lang ang aayos sa kondisyon na magbibigay ng ¼ ng total na kabayaran at sila na ang aayos sa loob. (p. 320, Records, Exh. 26-B.)[11]
x x x. While it may be true that the complainant was arrested with the acknowledged perpetrator of the extortion ploy, Felipe Rondez, it was just a classic and ironic case of the complainant being at the right place at the wrong time. Jesus Fernandez was at the right place, the Barrio Fiesta Restaurant to take his lunch. He was there at the wrong time for it was the precise moment when the respondent decided to arrest the extortionist demanding "grease money" from Caballero of Dan-Dan Enterprises. The evidence on record clearly established the absence of conspiracy between Fernandez and Rondez. The spontaneous declaration of Rondez given to the police immediately after their arrest succeeded in persuading this Office that the complainant was just an innocent pawn in the dangerous game of extortion conceived and perpetrated by Rondez (p. 4 Exhibit 'G' for the complainant). In another statement made by Rondez the latter confirmed his earlier statement that Fernandez decline the invitation of Caballero for them to have lunch at Paisano Restaurant. xxx.Neither can we consider Fernandez's failure to report in his Engineer Survey Report (ESR) the use of the illegal jumper in Dan-Dan Enterprises as part of the conspiracy. We give credence to Fernandez's version of the story, to wit:
x x x.
The respondent theorizes that conspiracy existed between Rondez and the complainant. This theory is premised on the failure of the complainant to explain why Caballero showed up at the Barrio Fiesta at the precise moment Rondez and the complainant were to take their lunch. The answer is glaring in its simplicity. Fernandez cannot be expected to explain something which he does not know of. Lack of knowledge absolves a person from the obligation of explaining. Fiscal Mena Ojeda of the Fiscal's Office of Rizal saw the logic when he opined that such question may be more appropriately answered by Rondez himself and not by Jesus Fernandez. (Exhibit "Q" for the Complainant).[15]
x x x. [S]ometime in August 1986 acting on the report of Mrs. Beth Hilvano Operating Clerk at Meralco, San Juan Branch, wherein complainant was then Senior Branch Engineer, he inspected the apartment of Mr. Senen Arabaca of Dan-Dan Enterprises consisting of six (6) units. He found a jumper and the line side partly concealed with the conduits embedded in the cement wall. The complainant removed the jumper and advised the caretaker of the premises one Celso Bianan to expose the conduits and renew the Certificate of Electrical Inspection (CEI). The complainant further advised him that the names of actual occupants of the apartment units should be reflected in the applications for electric meter connection. To compel the customer to follow his instructions, the complainant removed the terminal screw.Confirming Fernandez's innocence of the alleged extortion scheme is Rondez's statement made on November 8, 1986:
The complainant states that after a week he again inspected the premises and found the concealed conduits already exposed. On said occasion, complainant met the administrator of the building, Mr. Ed Leoncio, whom he required to submit the lease contracts between the owner of the apartment and the six (6) tenants so that the connection orders will be issued in the names of the actual occupants. Connection orders were issued to the occupants of five (5) units on September 1, 1986. (Exhibits "II", "JJ", "KK", "LL", and "MM"). The sixth (6th) unit was not issued a connection order because of the occupant's failure to install a fixed partition separating the sixth (6th) from the fifth (5th) unit (Exhibit "H"). Complainant's findings were reflected in his Engineer Survey Report (ESR).
The complainant alleges that on October 6, 1986, he assigned the ESR to Mr. Felipe Rondez, Senior Branch Fieldman and instructed him to inspect the remaining unit to check whether the applicant had already installed the required fixed partition.
On October 9, 1986 the complainant was approached by Rondez and was informed that one Mariano Caballero, the new Administrator of the apartments of Mr. Senen Arabaca of Dan-Dan Enterprises was inviting the two of them for lunch at the Paisano Restaurant on the following day; that the complainant told Rondez to decline the invitation; that on that occasion the complainant asked Rondez of his findings regarding the sixth (6th) unit of Senen Arabaca's apartment; that Rondez told complainant that the required fixed partition has not yet been installed; that the complainant told Rondez that Mr. Caballero, the building administrator of Senen Arabaca/Dan-Dan Enterprises must see him the following week since on October 10, 1986 he was to attend the "Communication Development Course" at respondent's main office; that complainant suggested to Rondez that since the latter will also be going to the main office to file his loan with MESALA on that day, they can have lunch together at the expense of the complainant; that Rondez told complainant that the lunch would be at his expense for he was expecting to get a substantial loan; that the two agreed to have lunch at the Barrio Fiesta Restaurant.
On October 10, 1986 the complainant together with Rondez and one Angelito Licuanan proceeded to Barrio Fiesta Restaurant; that after being seated, they ordered three bottles of beer and cold cuts; that a little later two men came near their table, one of whom greeted Rondez; that the two men joined the complainant and his companions on the table but Rondez failed to introduce these men to the complainant; that the complainant took the initiative of introducing himself and was surprised to learn that one of these men was Mariano Caballero whose invitation he declined; that to avoid embarrassment the complainant remained silent.
The complainant declares that after they finished their lunch Mr. Caballero excused himself, after which plain-clothesmen appeared frisking complainant and his companion. The frisking stopped when one of the plainclothesmen said "Tsip, eto na".
The complainant narrates that they were first brought to the Tomas B. Karingal Police Station, then to F. Bonifacio of the Southern Police District where they were detained up to midnight of October 11, 1986.
The complainant avers that he was shocked when he was informed by the investigating policemen that the reason for their apprehension and subsequent detention was, that they were caught while in the act of extorting P2,000.00 from Caballero and that the marked money was taken from the pocket of his companion, Rondez. The complainant claims that he did not see the money but he was only shown xerox copies thereof.[16]
S - Noong 9 ng Oktubre, 1986, bumalik ako sa opisina at sinabi ko kay Jess Fernandez na kinukumbida tayo ni Caballero para kumain ng tanghalian bukas Biyernes, sa Paisano. Sabi ni Jess Fernandez ay hindi puwede kasi may problema ang application nila. Mabuti pa sabi ni Jess kaysa sa niyayaya tayo sa Paisano ikaw na lang Philip ang kukumbidahin ko at pakainin. Sabi ko naman, sige kako, tamang tama sa tanghali magpa file ako ng loan application. At kami ay nagkasundo na magkita sa lobby ng Lopez Building noong tanghali ng Biyernes pinatawag ako ni Caballero kung ano ang resulta ng pinag-usapan namin ni Fernandez kung siya ay pumayag sa pangungumbida sa Paisano. Tinawagan ko si Caballero noong Biyernes ng umaga at ang sabi ko hindi pumayag si Fernandez at biniro pa ako na ibo-blow-out na lang ako sa Barrio Fiesta ni Fernandez kung kaya't mamayang tanghali ay kakain kami. Tumuloy kami ni Jess Fernandez noon tanghali.
T - Kailan at saan unang nagkita si Caballero at si Jess Fernandez?
S - Sa San Juan Branch Office sila nagkita pero hindi ko sila naipakilala sa isat-isa. Una silang nagkakilala doon sa Barrio Fiesta (Exhibit "B" p. 2).[17]
September 18, 1986
M E M O R A N D U M
To : MR. RAOUL A. VILLANUEVA
From : COMMITTEE ON PENALTY FOR INFRACTIONS
Subject : PENALTY FOR INFRACTIONS ON LOAD SPLITTING
After a thorough discussion, the committee headed by Mr. P. U. Costales, recommend the following penalties for infractions on Load Splitting:
A. Penalty for infractions on load splitting committed prior
to September 1, 1986.
1. one offense - 10 working days suspension
2. other similar offense - 3 working days suspension for every offense, will not be considered as repetition.
B. Penalty for infractions on load
splitting committed after September 1, 1986
With in
12 month Period
1st 2nd
3rd 4th
1. If the approval of the split loading 10 days 15 days Dismissal
after due investigation is clearly intentional
violating Section 5, 'Neglect of Duty' &
Section 7, Dishonesty:
11. All other acts of dishonesty which cause
or tend to cause prejudice to the Company,
which is subject to disciplinary action
depending upon the gravity of the offense.
2. If the approval of the split loading Reprimand 3 days 5 days 10 days
after due investigation is found out to be
in good faith, considering the case, its
gray area of right or wrong.Violation of
Section 5, Neglect of Duty:
b-6 Failure to comply with official orders
and/or perform regular assigned duties
or specific instruction related to his duty,
which is punishable from reprimand to
dismissal, depending upon the gravity of
the offense.
b-7 Knowingly furnishing false, xxx data
or information to persons duly authorized
to receive the same, arising out of the
employee's neglect or failure to discharge
his duty xxx, or xxx, which act causes
prejudice to the Company, 'which is
punishable from reprimand to dismissal
depending upon the gravity of the offense.
All offenses committed prior to September 1, 1986, will be considered as 1st offense, regardless of number of days suspension after due notice of suspension has been rendered.
Suspension of 3 days will be imposed continuously for every infraction committed prior to September 1, 1986, as just similar offense as in (A) and not as a repetition.
For your approval.
(SGD.) R. L. SANTIAGO