by Vizcaya were relocated on the northeastern or southeastern side of said property during the flood in 1971-1972; (3) Pursuant to a Decision dated April 2, 1992 in Civil Case No. 4038 of the Regional Trial Court, Nueva Vizcaya a writ of execution was issued ordering that all buildings existing within Lot No. "B-1, subdivision plan PSU-2-0330155756 and Lot "D" of the subdivision plan PSD-02-03-01576 owned defendants-appellees Arturo and Corazon Alejandro, situated in Barrio Magsaysay, Bayombong, Nueva Vizcaya be demolished: (4) Instead of going to Lot "B-1" and Lot "D", defendant-appellee Provincial Sheriff with the assistance of policemen went to the northeastern and southeastern side of Lot "2", Ccs-2-03-000178-D owned by plaintiff-appellant NVSIT and threatened to demolish the houses thereat despite the latter's objections; and (5) The lands owned by defendants-appellees Arturo and Corazon Alejandro are situated far from the land owned by plaintiff-appellant NVSIT.3 In an Order dated June 29, 2000, the executive Judge issued a TRO, effective for seventy-two hours from issuance, directing defendants-appellees and their agents "to cease and desist from disturbing the status quo and from committing any act of disposition (sic) in the premises of plaintiff."4 However, the extension of said TRO to twenty days was thereafter denied by the trial court in an Order dated July 3, 2000.5 In the same Order, the trial court denied the complaint, the dispositive portion of which reads as: "WHEREFORE, finding no basis for extending the TRO and issuing an injunction against the Office of the Provincial Sheriffs, the extension of the TRO is hereby denied and the Complaint filed is hereby denied. Costs against the plaintiffs. So ORDERED."6 Hence, the present appeal which is premised on the following assignment of errors: 3 Records, pp. 1-4 4 Records, p. 28 5 Records, pp. 32-33 6 Records, p. 33 1. THE HONORABLE COURT A QUO SERIOUSLY ERRED IN DENYING THE MOTION FOR THE ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION II. THE HONORABLE COURT A QUO COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN DISMISSING THE COMPLAINT The appeal is partly meritorious. The trial court's denial of the extension of the temporary restraining order to 20 days, initially issued by the Executive Judge for 72 hours, lies within its sound discretion. The Court sees no reason to disturb the same as there is absence of any showing that the trial court gravely erred in denying the extension. However, the trial court's dismissal or denial of the complaint in the same Order dated July 3, 2000, as a result of the denial of the extension of the TRO, violates due process as it deprived plaintiffs-appellants of their right to present their case on its Notably, plaintiffs-appellants are not assailing the Decision in Civil Case No. 4038, as their complaint in Civil Case No. 6364 is premised on the alleged threatened demolition of their houses and structures by defendants-appellees on the lots not covered by Civil case No. 4038. The trial court should not have denied or dismissed the complaint even before defendants-appellees could file their responsive pleading to the complaint so that the issues may be defined with certainty and the case allowed to proceed further, if warranted. The quantum of evidence required in the application for TRO or writ of preliminary injunction is separate and distinct from that of the main case and the denial of the application for TRO or writ of preliminary injunction does not carry with it the denial of the complaint. Simply put, the trial court's denial of the complaint as a consequence of the denial of the extension of the TRO was too precipitate. It has been held that: "Due process consideration dictate that the (assailed) injunctive writs are not judgments of the merits but merely orders for the grant of a provisional and ancillary remedy to preserve the status quo until the merits of the case can be heard. The hearing on the application for issuance of a writ of preliminary injunction is separate and distinct from the trial on the merits of the main case. The quantum of evidence required for one is different from that of the other, ***. The main case should be allowed to proceed according 050775- -3 [SP No. 69941. March 15, 2006] ALBAY ELECTRIC COOP., INC., represented by NEA Project Supervisor/Acting General Manager DANILO M. CRUZ, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION (First Division) and ARSENIO B. BIGLETE, respondents. 1. LABOR LAW; ILLEGAL DISMISSAL; LOST OF TRUST AND CONFIDENCE AS BASIS FOR TERMINATION OF EMPLOYMENT MUST BE CLEARLY AND CONVINCINGLY ESTABLISHED BY SUBSTANTIAL EVI DENCE.-Loss of trust and confidence to be a valid ground for an employee's dismissal must be based on a willful breach and founded on clearly established facts (Asia Pacific Chartering [Phils.], Inc. vs. Fardan, 393 SCRA 454). The employer's evidence, although not required to be of such degree as that required in criminal case, i.e., proof beyond reasonable doubt, must be substantial it must clearly and convincingly establish the facts upon which loss of confidence in the employee may be made to rest (Felix vs. National Labor Relations Commission, 442 SCRA 465, 466). 2. ID.; ID.; BURDEN OF PROOF RESTS UPON THE EMPLOYER TO SHOW THAT THE DISMISSAL IS FOR JUST AND VALID BAR.—In termination cases the burden of proof ORIGINAL ACTION in the Court of Appeals. The facts are stated in the opinion of the Court. Muñoz Law Office for petitioner. Judar, Vega and Associates for respondent. BARRIOS, J.: In this petition for certiorari, the petitioner Albay Electric Coop., Inc. (or ALECO for brevity) represented by Danilo M. Cruz asks that the Resolution dated July 16, 2000 of the National Labor Relations Commission (or NLRC) affirming the Decision dated October 30, 2000 of the labor Arbiter as well as its Resolution dated December 14, 2002 denying the motion for its reconsideration, be reversed and set aside for having been issued with grave abuse of discretion. The respondent Arsenio B. Biglete (or Biglete) was hired by ALECO on February 2, 1975. When Biglete was terminated on February 4, 2000 he was holding the position of Special Equipment Section Head in the Technical Service Department. ALECO's ground for terminating Biglete was breach of trust and confidence as well as habitual violation of the Code of Ethics and Discipline for ALECO Employees. The breach of trust was rooted from an incident when Biglete ordered removed 3 units of capacitors measuring about 1 feet in height and 7 inches in width, and which he then kept in his possession for 3 years, 3 months and 16 days before he turned over and returned these. To establish its claim that Biglete has committed theft, ALECO presented the Sworn Statement of Teodoro Peñalosa who declared that he was with Biglete on October 12, 1996 on board a Mitsubishi van on their way to Ligao. Reaching the vicinity of Batang, Biglete ordered the van stopped and directed him to disconnect 3 capacitors and these were then taken by Biglete. Aleco stated that when it had discovered the theft by Biglete, it issued a memorandum directing him to explain in writing why dismissal should not be imposed upon him and at the same time placing him on a 30day preventive suspension. Because Biglete was to appear in an administrative investigation, he returned the 3 capacitors on January 28, 2000. On February 4, 2000 Biglete submitted a written explanation admitting the delay in returning the capacitors and his negligence in this, and stated that he was sorry. Acording to ALECO, his being the Special Equipment Section head of the Technical Services Department gave Biglete access and authority in the disposition of ALECO's numerous electrical equipments, materials and devices, and the fact that he failed to report, turn over or return the capacitors till after more than 3 years, consummated the crime of qualified theft. To further support the termination of his employment, ALECO also added that Biglete habitually violated the Company Code of Ethics and Discipline and had been suspended/reprimanded or issued warning for these violation which included among others serious misconduct, unauthorized undertime, refusal to follow lawful instructions, excessive tardiness and incurring absences without official leave. Asserting that his dismissal was illegal Biglete filed this case against ALECO and sought to recover moral and exemplary damages, and reinstatement plus backwages. Biglete averred that on January 28, 2000 he received a memorandum requiring him to explain why he should not be dismissed he turned these over without a demand made on him. To show that he was blameless, Biglete asserted that he did not appropriate or dispose of these capacitors for his own personal gain and the capacitors were returned in the original state that they were when dismounted. This belies criminal intent and there could have been no theft. Finding the cause of Biglete meritorious, the Labor Arbiter on October 30, 2000 ruled that there was illegal dismissal, and disposed that: hereby rendered, finding complainant to have been WHEREFORE, premises considered, a decision is illegally dismissed by respondent and the latter is hereby ordered to immediately reinstate complainant to his former position without loss of seniority rights and to pay complainant backwages, which as of date amounts to NINETY THREE THOUSAND ONE HUNDRED SIXTY ONE and 25/100 (P93,161.25) as computed above. All other claims are hereby dismissed for lack of merit. (p. 68, rollo) ALECO appealed to the NLRC, but to no avail for in the Resolution dated July 16, 2001 it was resolved that: WHEREFORE, finding no cogent reason to modify, alter, much less reverse the decision appealed from, the same is AFFIRMED en toto and the instant appeal DISMISSED for lack of merit. (p. 100, rollo) A motion for its reconsideration did not assailed Resolution dated December 14, 2001 (pp. 110-111. Rollo). from service for masterminding the taking help any and was denied in the other of company properties, namely 3 nonenergized or non-operational capacitor. In the same memorandum, he preventively suspended for 30 days without pay. was In traverse, Biglete contended that it was to prevent loss and further deterioration that he directed his subordinate Teodoro Peñalosa to retrieve these capacitors because these were already non-operating. Admittedly there was no office order to dismount and detach the capacitors, but this was with the prior knowledge of his superior. He held the capacitors in good faith for safekeeping and his only fault was that he inadvertently forgot to turn them over to ALECO but justified that the delay was unintentional. He stated too that it is not true that an investigation was first conducted before he returned the capacitors because Firm on its stand that the dismissal of Biglete was with basis, ALECO is now before Us through this petition for certiorari stating the following grounds for its grant: I. THE HONORABLE PUBLIC RESPONDENT II. THE HONORABLE PUBLIC RESPONDENT III. PUBLIC RESPONDENT DISREGARDED AND SET We cannot grant the petition for lack of merit. Loss of trust and confidence to be a valid ground for an employee's dismissal must be based on a willful breach and founded on clearly established facts (Asia Pacific Chartering [Phils.], Inc. vs. Farolan, 393 SCRA 454). The employer's evidence, although not required to be of such degree as that required in criminal cases, i.e., proof beyond reasonable doubt, must be substantial it must clearly and convincingly establish the facts upon which loss of confidence in the employee may be made to rest (Felix vs. National Labor Relations Commission, 442 SCRA 465, 466). In the case at bar, indeed Biglete's dismissal was not founded on clearly established facts sufficient to warrant separation from employment. The evidence relied upon by ALECO Teodoro's Sworn Statement, did not establish Biglete's culpability. We quote the Labor Arbiter's observation: Complainant admits that he ordered Teodoro Peñalosa to detach the three (3) capacitors from the post, but strongly asserts that the same was done only to prevent their loss or further deterioration. While respondent, also asserts that complainant committed qualified estafa. Under these circumstances, respondent needs to prove intent to gain on part of the complainant. Intent cannot be presumed from mere act of giving order to a subordinate to disconnect and detach a capacitor. The act of giving order to detach a capacitor and complainant's failure to immediately turn over the same in respondent's warehouse, are not per se unlawful, considering the nature of complainant's work. Intent is a mental state, the existence of which is shown by the overt or external acts of a person. In this case there is nothing in the Sworn Statement of Teodoro Peñaloso *** or in his testimonies during clarificatory hearing, which clearly and convincingly prove complainant's intent to gain in ordering the disconnection of the capacitors and in the delay in its turn over. (p. 66, rollo) In termination cases the burden of proof rest upon the employer to show that the dismissal is for just and valid cause, and failure to do so would necessarily mean that the dismissal was illegal (Solidbank Corporation vs. Court of Appeals, 409 SCRA 554). It should be emphasized that Biglete's failure to immediately turn over or return the capacitors should not be taken as thievery or be tantamount to it. For one thing, he did not use, dispose nor in any manner profit from these. Dismissal severs employment ties and could well be the economic death sentence of an employee. Dismissal prejudices the socio-economic well being of the employee's family and threatens the industrial peace. Due to its far reaching implications, our Labor Code decrees that an employee cannot be dismissed, except for the most serious causes (Felix vs. NLRC, supra), and which must be established with certitude. As factual findings of the NLRC affirming those of the labor Arbiter, are accorded respect, if not finality, and are considered binding in this Court (China Banking Corporation vs. Borromeo, 440 SCRA 621) WHEREFORE, the petition is DENIED DUE COURSE and DISMISSED. So ORDERED. Guariña III and Ranada, JJ., concur. Petition denied due course and dismissed. CERTIFICATION Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. (SGD.) ROBERTO A. BARRIOS |