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[G.R. NO. 146212 : September 5, 2007]




Petitioner Fred N. Bello seeks the reversal of the Resolution1 of the Court of Appeals (CA) dated July 5, 2000, which dismissed his Petition for Certiorari for being filed out of time, and the CA Resolution2 dated November 24, 2000, which denied his motion for reconsideration.

It appears that on April 30, 1997, petitioner was employed as Operations Manager by respondent Corpuz Moya Security and Services, Inc. (CMSSI), a security agency. As such, he was in charge of all operational matters of the agency.3

On July 15, 1997, CMSSI's Vice-President for Administration issued an Order limiting petitioner's functions to monitoring the formation of security guards assigned at Robinson's Galleria and Robinson's Ermita.4 The petitioner protested the change of assignment; however, CMSSI insisted that the petitioner should follow the same. The petitioner agreed on the condition that he will be given a transportation allowance of not less than P60.00 and not more than P100.00 daily effective July 15, 1997.5 Later, he sent a memorandum to CMSSI, questioning the change of his assignment and making some suggestions on how to improve CMSSI's operations.6

In a Letter7 dated August 28, 1997, the respondent CMSSI informed the petitioner that he was being dismissed:

In view of the termination of our contract with the ROBINSONS ANTIPOLO HOMES and the need to adapt a policy of strict retrenchment due to loss of a substantial amount of a revenue by our company we are obliged much to our regret to inform you that we are dispensing with your services effective August 31, 1997 until such time as we shall be in a financial position to avail once more of your assistance.8

The petitioner received the letter on September 1, 1997.

On September 15, 1997, the petitioner filed a Complaint9 against CMSSI for illegal dismissal, unpaid salaries, nightshift differential, overtime pay and other money claims. In his Affidavit, the complainant admitted that the agency could hardly cope with its financial obligations, for which reason he has not yet requested for the reimbursement of his transportation expenses.

For their part, the respondents explained that in the months of August and September 1997, Robinsons's Land Corporation cancelled its contracts with CMSSI. In order to cope with the huge loss of revenue, CMSSI was forced to adopt strict austerity measures. These measures included the retrenchment of employees, particularly the petitioner, whose services had become unnecessary. Moreover, based on the evaluation of the petitioner's performance, they found that he was incapable of discharging his duties and responsibilities, and that he was frequently absent for several days.10

On September 15, 1998, the Executive Labor Arbiter rendered a Decision11 finding that the complainant was illegally dismissed. The Labor Arbiter held that the respondents failed to observe the procedure for the termination of employment, particularly the twin requirements of notice and hearing. He likewise noted that the reason for the retrenchment is not supported by substantial evidence. The dispositive portion of the decision states:

WHEREFORE, premises considered, judgment is hereby rendered declaring complainant as illegally and unjustly dismissed and respondents are jointly and severally ordered to pay complainant ONE HUNDRED EIGHT THOUSAND PESOS (P108,000.00) representing his full backwages including 13th month pay and ordering respondents to reinstate complainant Fred N. Bello to his former position without loss of seniority rights. However, in case reinstatement is no longer practicable, complainant shall be paid separation pay of one-month pay for every year of service in addition to his full backwages. The reinstatement aspect is immediately executory even pending appeal.


On July 29, 1999, the National Labor Relations Commission (NLRC) reversed the Decision of the Labor Arbiter.13 It found that there was sufficient basis for the petitioner's retrenchment in light of the financial difficulties being experienced by the Company at that time and the fact that petitioner was frequently absent. The NLRC ruled, thus:

WHEREFORE, premises considered, the Decision dated 15 September 1998 is hereby REVERSED.

Respondent CORPUZ MOYA SECURITY & SERVICES, INC. is however ordered to indemnify complainant FRED N. BELLO the amount of P1,000.00.


On September 13, 1999, the petitioner filed a motion for the reconsideration of the said decision, which the NLRC denied in a Resolution dated September 30, 1999.15 The petitioner's counsel, Atty. Aileen Tagaban, received a copy of the Resolution on November 4, 1999. On the other hand, the petitioner's copy of the Resolution was returned unserved after three notices. The petitioner was only informed about the denial of his motion for reconsideration on April 18, 2000, through the Letter of the Deputy Executive Clerk, Second Division of the NLRC, dated April 10, 2000.16

On June 2, 2000, the petitioner filed a Petition for Certiorari with the CA. On July 5, 2000, the CA issued a Resolution17 dismissing the Petition for Certiorari for having been filed out of time. On August 4, 2000, the petitioner filed a motion for the reconsideration of the Resolution, which the appellate court denied on November 24, 2000.18

The petitioner then filed this Petition for Review questioning the outright dismissal of his petition and praying that the Court grant his prayer for reinstatement and backwages. The Court required the respondents to file their comment but they failed to do so. In a Resolution19 dated December 8, 2003, the Court resolved to inform the respondents that they are deemed to have waived their right to file a comment and that the case will be resolved based on the pleadings submitted by the petitioner.

The petitioner contends that the CA erred in finding that the petition for certiorari was filed out of time. He avers that, in labor cases, both the party and counsel must be furnished separately with copies of orders, decisions or resolutions of the NLRC; hence, the period within which to file the Petition for Certiorari must be counted from the time the counsel of record and the party shall have received their respective copies of the decision whichever comes later. To buttress this stance, he cites the case of PNOC Dockyard and Engineering Corporation v. NLRC20 wherein the Court declared that "in labor cases, both the party and its counsel must be duly served their separate copies of the order, decision or resolution; unlike in ordinary judicial proceedings where notice to counsel is deemed notice to the party." The petitioner further urges the relaxation of the rules of procedure in view of the merits of his case. He avers that the respondents failed to substantiate their claim that the company is suffering from serious business losses to justify its policy of retrenchment.

The Court agrees with the CA that the petition was filed out of time.

The right to appeal is neither a natural right nor a part of due process. The perfection of an appeal within the period and in the manner prescribed by law is mandatory; noncompliance with this legal requirement is fatal and has the effect of making the judgment final and executory.21

Here, the petitioner insists that he filed the Petition for Certiorari on time, which should be reckoned from the moment he was informed about the Resolution denying his motion for reconsideration, and not from the date his counsel received a copy of the said Resolution.

The Court was confronted with the same issue in Ginete v. Sunrise Manning Agency.22 In that case, the Court held that the period for filing a Petition for Certiorari should be reckoned from the time the counsel of record received a copy of the Resolution denying the motion for reconsideration. The following discussion on this point is instructive:

The case of PNOC Dockyard and Engineering Corporation v. NLRC cited by petitioner enunciated that "in labor cases, both the party and its counsel must be duly served their separate copies of the order, decision or resolution; unlike in ordinary judicial proceedings where notice to counsel is deemed notice to the party." Reference was made therein to Article 224 of the Labor Code. But, as correctly pointed out by private respondent in its Comment to the petition, Article 224 of the Labor Code does not govern the procedure for filing a petition for certiorari with the Court of Appeals from the decision of the NLRC but rather, it refers to the execution of "final decisions, orders or awards" and requires the sheriff or a duly deputized officer to furnish both the parties and their counsel with copies of the decision or award for that purpose. There is no reference, express or implied, to the period to appeal or to file a Petition for Certiorari as indeed the caption is "execution of decisions, orders or awards." Taken in proper context, Article 224 contemplates the furnishing of copies of "final decisions, orders or awards" and could not have been intended to refer to the period for computing the period for appeal to the Court of Appeals from a non-final judgment or order. The period or manner of "appeal" from the NLRC to the Court of Appeals is governed by Rule 65 pursuant to the ruling of the Court in the case of St. Martin Funeral Homes v. NLRC. Section 4 of Rule 65, as amended, states that the "petition may be filed not later than sixty (60) days from notice of the judgment, or resolution sought to be assailed."

Corollarily, Section 4, Rule III of the New Rules of Procedure of the NLRC expressly mandates that "(F)or the purpose(s) of computing the period of appeal, the same shall be counted from receipt of such decisions, awards or orders by the counsel of record." Although this rule explicitly contemplates an appeal before the Labor Arbiter and the NLRC, we do not see any cogent reason why the same rule should not apply to petitions for certiorari filed with the Court of Appeals from decisions of the NLRC. This procedure is in line with the established rule that notice to counsel is notice to party and when a party is represented by counsel, notices should be made upon the counsel of record at his given address to which notices of all kinds emanating from the court should be sent. It is to be noted also that Section 7 of the NLRC Rules of Procedure provides that "(A)ttorneys and other representatives of parties shall have authority to bind their clients in all matters of procedure"' a provision which is similar to Section 23, Rule 138 of the Rules of Court. More importantly, Section 2, Rule 13 of the 1997 Rules of Civil Procedure analogously provides that if any party has appeared by counsel, service upon him shall be made upon his counsel.23

Accordingly, the 60-day period for filing the Petition for Certiorari with the CA should be counted from the receipt by the petitioner's counsel of a copy of the NLRC Decision reversing the Labor Arbiter. It should be noted that when the petitioner filed his motion for reconsideration on September 13, 1999, only 48 days remained of the 60-day period for filing a Petition for Certiorari.24 The petitioner, however, filed his Petition for Certiorari only on June 2, 2000, or 211 days from the receipt by his counsel of the Resolution denying the motion for reconsideration on November 4, 1999. In other words, the Petition for Certiorari was filed 163 days late.

We are mindful of the Court's rulings that, as much as possible, appeals should not be dismissed on a mere technicality in order to afford the litigants the maximum opportunity for the adjudication of their cases on the merits.25 However, the failure to perfect an appeal is not a mere technicality as it raises a jurisdictional problem which deprives the appellate court of jurisdiction over the appeal.26 After a decision is declared final and executory, vested rights are acquired by the winning party. Just as a losing party has the right to appeal within the prescribed period, the winning party has the correlative right to enjoy the finality of the decision in the case.27

WHEREFORE, premises considered, the petition is DENIED. The Resolutions of the Court of Appeals, dated July 5, 2000 and November 24, 2000, are AFFIRMED.


Ynares-Santiago, J., Chairperson, Austria-Martinez, Chico-Nazario, Reyes, JJ., concur.


1 Penned by Associate Justice Edgardo P. Cruz, with Associate Justices Ramon A. Barcelona and Marina L. Buzon, concurring; rollo, pp. 89-91.

2 Rollo, pp. 98-99.

3 Id. at 42.

4 Id. at 43.

5 Id. at 50.

6 Id. at 44.

7 Id. at 45.

8 Id.

9 Id. at 47-48.

10 Id. at 61.

11 Id. at 66-72.

12 Id. at 71-72.

13 Id. at 74-81.

14 Id. at 80-81.

15 Id. at 86.

16 Id. at 83.

17 Id. at 89-91.

18 Id. at 98-99.

19 Id. at 136.

20 353 Phil. 431, 445-446 (1998).

21 Allied Banking Corporation v. Eserjose, G.R. No. 161776, October 22, 2004, 441 SCRA 199, 208.

22 411 Phil. 953 (2001).

23 Id. at 957-958.

24 At that time, Section 4, Rule 65 of the Rules of Civil Procedure, as amended by Supreme Court Circular No. 38-98, read:

SEC. 4. Where and when petition to be filed. -

x x x

If the petitioner had filed a motion for new trial or reconsideration in due time after notice of said judgment, order or resolution, the period herein fixed shall be interrupted. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of such denial.No extension of time to file the petition shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days.

25 Mendoza v. David, G.R. No. 147575, October 22, 2004, 441 SCRA 172, 181.

26 Zaragoza v. Nobleza, G.R. No. 144560, May 13, 2004, 428 SCRA 410, 419.

27 Allied Banking Corporation v. Eserjose, supra note 21, at 208.

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