h Y

This petition for certiorari assails the Decision1 [Rollo, pp. 32-36.] dated July 21, 1992 and the Resolution dated August 25, 1992 of herein public respondent National Labor Relations Commission (NLRC) which affirmed with modification the Labor Arbiters’ Decision2 [Rollo, pp. 40-43.] dated June 15, 1991, ordering herein petitioners to reinstate private respondent, Ruben Mariñas, "without loss of seniority rights and privileges with full backwages". The assailed Decision of the NLRC deleted the award of attorney’s fees in favor of the private respondent Ruben Mariñas for lack of sufficient basis.

The antecedents are summarized by the Solicitor General as follows: Jksm

The labor arbiter deemed herein petitioners’ non-appearance as a continued failure on their part to controvert the facts as claimed by private respondent, Ruben Mariñas. Thus, on June 15, 1991 it rendered a decision finding the dismissal unjustified. The dispositive portion of the decision reads:

Aggrieved by the aforequoted Decision, the petitioners appealed to the NLRC on July 19, 1991.

On July 21, 1992, the NLRC rendered a decision in favor of private respondent, Ruben Mariñas, the dispositive portion of the decision reads, to wit:

On August 13, 1992, private respondent, Ruben Mariñas filed a Motion for Reconsideration, with respect to the deletion of the award of attorney’s fees. Herein petitioners also filed a Motion for Reconsideration arguing that they were deprived of their constitutional right to due process of law; that the labor arbiter failed to acquire jurisdiction over their person; and that they have a meritorious defense.

On August 25, 1992, the NLRC denied both motions for reconsideration for lack of merit.

On October 5, 1992, herein petitioners appealed to this Court by petition for certiorari under Rule 65 of the Rules of Court assailing the aforesaid resolutions of the NLRC on grounds of grave abuse of discretion amounting to lack of excess of jurisdiction and raising the following assignment of errors:

In brief, petitioners allege that both decisions of the labor arbiter and herein public respondent NLRC are void for the following reasons, to wit: (1) that there was no valid service of summons; (2) that the labor arbiter did not acquire jurisdiction over their persons; and (3) that private respondent, Ruben Mariñas abandoned his job, thus, he was not illegally dismissed.

In this case, the service of summons or notices was governed by Sections 4 and 5 of Rule IV of the then Revised Rules of Procedure of the National Labor Relations Commission6 [This is has been amended and is now known as "The New Rules of Procedure of the National Labor Relations Commission" which took effect on December 5, 1996. It now provides that: Missdaa

"Section 5. Proof and completeness of service.-- The return is prima facie proof of the facts indicated therein. Service by registered mail is complete upon receipt by the addressee or his agent; but if the addressee fails to claim his mail from the post office within five (5) days from the date of first notice of the postmaster, service shall take effect after such time."] which took effect fifteen (15) days after its approval on November 5, 1986. They respectively provide:

Thus, under the NLRC Rules of Procedure, summons on the respondent shall be served personally or by registered mail on the party himself. Such service is deemed completed upon receipt by the addressee or his agent.

Herein petitioners do not deny the fact that the notices or summons served upon them by registered mail were correctly addressed at their business address. However, they claim that even though said notices or summons were correctly sent by registered mail to their business address these notices or summons were received by "impostors or persons unknown to them." As a result, petitioners assert that they were not properly served with notices or summons in the scheduled hearings before the labor arbiter, and the labor arbiter did not acquire jurisdiction over their persons. They were not afforded due process when the labor arbiter found them liable for illegal dismissal.

Petitioners’ contention has no merit. Misoedp

Well-settled is the rule that in quasi-judicial proceedings, before the NLRC and its arbitration branch, procedural rules governing service of summons are not strictly construed. Substantial compliance thereof is sufficient.7 [Pison-Arceo Agrircultural and Development Corporation v. NLRC, 279 SCRA 312; Santos v. NLRC, 254 SCRA 673 citing Eden v. Ministry of Labor and Employment, 182 SCRA 840.] The constitutional requirement of due process with respect to service of summons, only exacts that the service of summons be such as may reasonably be expected to give the notice desired.8 [Toyota Cubao, Inc. vs. CA, 281 SCRA 198.] It is also a fundamental rule that unless the contrary is proved, official duty is presumed to have been performed regularly and judicial proceedings regularly conducted.9 [Section 3, Rule 131 of the Rules of Court.] This presumption of the regularity of the court proceedings includes presumptions of regularity of service of summons.10 [Associated Ins. & Surety Co. v. Banzon, 26 SCRA 268.] It is therefore incumbent upon herein petitioners to rebut these presumptions with competent and proper evidence. For the return is prima facie proof of the facts indicated therein.11 [Section 5, Rule IV, Revised Rules of Procedure of the National Labor Relations Commission.]

The records disclose that:

In the instant case, the bare assertion of the petitioners that the summons and/or notices of the scheduled hearings sent by registered mail were received by "impostors or persons unknown to them," requires substantiation by competent evidence. Mere allegation is neither equivalent to proof13 [Philippine National Bank v. CA, 266 SCRA 136.] nor evidence.14 [Martinez v. NLRC, 272 SCRA 793.] The registry return receipt states that "a registered article must not be delivered to anyone but the addressee, or upon the addressee’s written order."15 [Rollo, p. 46.] Thus, the persons who received the notice were presumably able to present a written authorization to receive the same and we can assume that the notices were duly received in the ordinary course of events. It is a legal presumption, born of wisdom and experience, that official duty has been regularly performed; that the proceedings of a judicial tribunal are regular and valid, and that judicial acts and duties have been and will be duly and properly performed.16 [Bordador v. Luz, 283 SCRA 374.] The burden of proving the irregularity in official conduct, if any, is on the part of petitioners who in this case clearly failed to discharge the same.

Petitioners had the opportunity to substantiate their claim that the notices were received by impostors or unknown persons by submitting necessary supporting documents in their memorandum of appeal which they seasonably filed before the respondent NLRC. Article 223 (d) of the Labor Code allows an appeal from a decision of the Labor Arbiter "if serious errors in the findings of facts are raised which would cause grave or irreparable injury to the appellant." The NLRC, in the exercise of its appellate powers, is authorized to correct, amend or waive any error, defect or irregularity in substance or in form.17 [Cebu Engineering and Development Company, Inc. v. NLRC, 289 SCRA 425.] Thus, this Court has allowed evidence to be submitted on appeal,18 [Article 221 of the Labor Code allows the Commission and its members to use every and all reasonable means to ascertain the facts in each case speedily and objectively without regard to technicalities of law or procedure, all in the interest of due process.] emphasizing that, in labor cases, technical rules of evidence are not binding.19 [Iran v. NLRC, 289 SCRA 433; Judy Philippines, Inc. v. NLRC, 289 SCRA 755.] Petitioners failed to adduce their evidence on appeal. Supreme

Notably, notwithstanding the allegation that the notices have not been received, petitioners actually received a copy of the labor arbiter’s adverse decision and then seasonably pleaded their case before the NLRC despite the fact that nobody purportedly signed or received the registry return receipt20 ["A copy of the decision was sent to respondent Alfredo Chua by registered mail and while the Registry Return Receipt (p. 53, Rollo) was unsigned, respondent filed their appeal on July 19, 1991" (NLRC Decision, p. 3; Rollo, p. 34)] in their behalf. As aptly opined by public respondent NLRC, viz:

We agree that there was sufficient compliance with the procedure for service of summons and/or notices of the scheduled hearings upon the petitioners. The return is prima facie proof of the facts indicated therein and service by registered mail is deemed completed even only upon receipt by an agent of the addressee.

It must be pointed out that the determination of whether the persons who actually signed the proof of return were employees, impostors or persons unknown to petitioners is a factual issue clearly beyond the ambit of a petition for certiorari. A petition for certiorari under Rule 65 of the Rules of Court does not include a correction of its evaluation of the evidence upon which the proper labor officer or office based on his or its determination but is confined to issues of jurisdiction or grave abuse of discretion.22 [Toyota Autoparts, Philippines, Inc. v. The Director of the Bureau of Labor Relation of the Department of Labor and Employment, et al., G.R. No. 131047, March 2, 1999, citing Flores v. NLRC & Premier Development Bank, 253 SCRA 494.] We find no basis from the records to hold that the NLRC went beyond its jurisdiction or gravely abused its discretion when it rejected the claim of petitioners that they were never served any copy of the notices and summons of the scheduled hearings before the Labor Arbiter and that the persons who allegedly signed the registry return cards correspondingly attached thereto were total strangers to herein petitioners. Edpsc

Equally without merit is herein petitioners’ contention that they were not afforded due process when the Labor Arbiter rendered its decision based only on the evidence adduced by private respondent Ruben Mariñas. The authority of the labor arbiter to render judgment based solely on the evidence adduced by a complainant is explicitly sanctioned by then Section 1023 [Now Section 11 (b & c) of Rule V of the New Rules of Procedure of the NLRC, it provides:

In Helpmate Inc. v. NLRC citing M. Ramirez Industries and/or Manny Ramirez v. Secretary of Labor, et al., 266 SCRA 111, the Court stated:

Herein petitioners’ failure to present their defense was due to their neglect to participate in the proceedings at the arbitration level. In any event, petitioners were able to seek the reconsideration of the adverse decision of the Labor Arbiter when they filed their timely appeal before the NLRC. A party who has availed of the opportunity to present his position cannot claim to have been denied due process.25 [Naguiat v. NLRC, 269 SCRA 564.] Despite such opportunity, petitioner failed to convincingly establish that their defense is meritorious.

As regards the issue on illegal dismissal, petitioners contend that private respondent Ruben Mariñas was not illegally dismissed, rather private respondent Ruben Mariñas abandoned his job by simply failing to work starting December 1990.

The contention is without merit. Abandonment as a just and valid ground for dismissal requires the deliberate, unjustified refusal of the employee to resume his employment.26 [Brew Master International, Inc. v. National Federation of Labor Unions (NAFLU), 271 SCRA 275.] Mere absence or failure to report for work, after notice to return, is not enough to amount to such abandonment.27 [Tan v. NLRC, 271 SCRA 216; Samahan ng mga Manggagawa sa Bandolino-LMLC v. LRC, 275 SCRA 633.] For a valid finding of abandonment, two factors must be present, viz: (1) the failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever employer-employee relationship,28 [Isabelo v. NLRC, 276 SCRA 141.] with the second element as the more determinative factor being manifested by some overt acts.29 [Trendline Employees Association-Southern Philippines Federation of Labor v. NLRC, 272 SCRA 172.] In abandonment, there must be a concurrence of the intention to abandon and some overt acts from which an employee may be deduced as having no more intention to work.30 [Toogue v. NLRC, 238 SCRA 241.] The intent to discontinue the employment must be shown by clear proof that it was deliberate and unjustified31 [C. Alcantara & Sons, Inc. v. NLRC, 229 SCRA 109.] a fact that herein petitioners failed to show. Jurismis

As gathered from the factual findings of the labor arbiter, Mariñas’ absence from work was not without valid or justifiable reason. He was prevented from returning to work after he was accused by petitioner Alfredo Chua, owner and manager of both Masagana Concrete Products and Kingstone Concrete Products, of tampering a "vale sheet" on November 30, 1990. On the next day, he was not allowed entry. In his letter dated December 3, 1990 Mariñas pleaded to be allowed to return to work, but this was not heeded. No investigation was conducted to determine his liability in connection with the tampering incident and Mariñas was not allowed any opportunity to controvert the accusation against him. Surprisingly, it was only after eight (8) days or on December 15, 1990, when the complaint for illegal dismissal had already been filed on December 7, 1990, that petitioner Chua advised him to report for work provided that the former admit in writing his mistake in a "vale sheet." While there was no formal termination of his services, Mariñas was constructively dismissed when he was accused of tampering the "vale sheet" and prevented from returning to work. Constructive dismissal does not always involve forthright dismissal or diminution in rank, compensation, benefit and privileges.32 [Philippine Advertising Counselors, Inc. v. NLRC, 263 SCRA 395.] For an act of clear discrimination, insensibility, or disdain by an employer may become so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment.33 [Ibid.] In this case, Mariñas had to resign from his job because he was prevented from returning back to work unless he admitted his mistake in writing and he was not given any opportunity to contest the charge against him. It is a rule often repeated that unsubstantiated accusation without anything more are not synonymous with guilt and unless a clear, valid, just or authorized ground for dismissing an employee is established by the employer the dismissal shall be considered unfounded.34 [RDS Trucking v. NLRC, 294 SCRA 623.] justice

The filing of the complaint for illegal dismissal on December 7, 1990, or six (6) days after his alleged abandonment negates the charge of abandonment. The fact that Mariñas eventually resigned from his job and is presently employed in another company35 [Memorandum for Petitioners, p. 2, Rollo, pp. 220-221.] does not run counter to this Court’s finding that no intent to abandon or sever the employer-employee relationship was clearly established to support the claim of a valid and justified dismissal. It is highly illogical for an employee to "abandon" his employment and thereafter file a complaint for illegal dismissal.36 [See Note 29; Jackson Building Condominium Corporation v. NLRC, 246 SCRA 329.] Abandonment is not compatible with constructive dismissal.37 [Philippine Advertising Counselors, Inc. v. NLRC, supra.]

Even assuming that there was abandonment, which is a just cause for dismissal, there was non-compliance with the statutory requirement of notice. The law requires that the employer must furnish the worker sought to be dismissed with two written notices before termination of employment can be legally effected, to wit: 1) notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice which informs the employee of the employer’s decision to dismiss him.38 [Nath vs. NLRC, 274 SCRA 379; Tingson, Jr. vs. NLRC, 185 SCRA 498.] Thus, if there is truth to the claim that Mariñas abandoned his job, petitioners should have formally notified Mariñas that such abandonment is the cause of his termination from service. No written notice was given to private respondent that his services were being terminated and there was violation of his right to security of tenure and his right to due process.39 [Labor Congress of the Philippines v. NLRC, 290 SCRA 509 citing Pepsi Cola Distributors of the Philippines, Inc. v. NLRC, 272 SCRA 267; Samar II Electric v. NLRC, 270 SCRA 290; Reformist Union of R.B. Liner, Inc. v. NLRC, 266 SCRA 713; Dela Cruz v. NLRC, 268 SCRA 458.] Our ruling in Premier Development Bank, et al. v. NLRC and Teodoro Labanda40 [G.R. No. 114695, July 23, 1998.] is instructive: Sjcj

The failure to comply with the requirement of procedural due process taints herein petitioners’ dismissal with illegality. In all termination cases, strict compliance by the employer with the demands of both procedural and substantive due process is a condition sine qua non for the same to be declared valid.41 [Philippine Airlines, Inc. v. NLRC (4th Division), 279 SCRA 553.] Mariñas is thus entitled to reinstatement as well as full backwages, as decreed by public respondent for having been illegally dismissed from employment. Scjj

In connection with the foregoing, this Court notes petitioners’ claim in their Reply42 [Rollo, p. 140.] dated April 12, 1994 to Private Respondent’s Comment dated December 29, 1993, that both Masagana Concrete Products and Kingstone Concrete Products have ceased operations due to losses since March 1990 and December 24, 1992, respectively. However, whether the alleged business losses sustained by petitioners affected the company’s financial health so as to compel it to close shop is a factual issue that should have been raised at the earliest possible time so that it could have been properly litigated. Be that as it may, herein petitioners cannot exculpate itself from the consequences of illegally dismissing an employee. Sccalr

An illegally dismissed employee is entitled to: 1) either reinstatement, if viable, or separation pay if reinstatement is no longer viable, and 2) backwages.43 [Aurora Land Projects Corporation v. NLRC, 266 SCRA 48.] Backwages and separation pay are distinct reliefs given to alleviate the economic damage suffered by an illegally dismissed employee.44 [Lopez, Jr. v. NLRC, 245 SCRA 644.] Hence, an award of separation pay in lieu of reinstatement does not bar an award of backwages, computed from the time of illegal dismissal, in this case on November 30, 1990, up to the date of the finality of the Supreme Court decision, without qualification or deduction.45 [De Guzman v. NLRC, G.R. No. 130617, August 11, 1999; Cañete v. NLRC, G.R. No. 131467, April 21, 1999; Bustamante v. NLRC; 265 SCRA 61.] Separation pay, equivalent to one month’s salary for every year of service, is awarded as an alternative to reinstatement when the latter is no longer an option. Separation pay is computed from the commencement of employment up to the time of termination, including the imputed service for which the employee is entitled to backwages, with the salary rate prevailing at the end of the period of putative service being the basis for computation.46 [Reformist Union of R.B. Liner, Inc. v. NLRC, 266 SCRA 713.] Sclawä

WHEREFORE, premises considered, the petition is hereby DISMISSED. The assailed Resolutions of public respondent NLRC are hereby AFFIRMED with the MODIFICATION that:

In case reinstatement is no longer feasible, private respondent Ruben Mariñas shall be entitled, in the alternative, to separation pay and backwages. The separation pay shall be equivalent to one month’s salary for every year of service, a fraction of at least six (6) months being considered as one whole year, computed from the commencement of employment up to the time of termination, on November 30, 1990, including the imputed service for which the employee is entitled to backwages, with the salary rate prevailing at the end of the period of putative service being the basis for computation. The backwages shall be computed from the time of illegal dismissal up to the date of the finality of the Supreme Court decision, without qualification or deduction.

Melo (Chairman), Vitug, Panganiban, and Purisima, JJ., concur. 10/6/99 2:33 PM