Republic of the Philippines

COURT OF APPEALS
MANILA

NERISSA D. DEL FIERRO-JUAN,

Petitioner,

-versus- C.A. - G.R. SP. No. ______

For: Certiorari

THE NATIONAL LABOR

RELATIONSCOMMISSION (FIRST
DIVISION), LABOR ARBITER
ROSALINA MARIA O. APITA-
BATTUNG, ASIAN SCHOOL OF
HOSPITALITYARTS, AND RICO
TRINIDAD,

Respondents.
x----------------------------------------------------------x

PETITION FOR CERTIORARI

PETITIONER, by counsel, unto this Honorable Court,

respectfully submits this Petition for Certiorari under Rule 65 of
the Rules of Court to annul and reverse the (1) decision of the
NATIONAL LABOR RELATIONS COMMISSION (NLRC for brevity)
dated 06 February 2017 dismissing petitioners appeal; and (2)
the resolution of NLRC dated 07 April 2017 denying her Motion for
Reconsideration, both of which were issued with grave abuse of
discretion amounting to lack of or in excess of jurisdiction there
being no plain, speedy and adequate remedy in the ordinary
course of law.

I. THE PARTIES

1. Petitioner NERISSA DEL FIERO-JUAN, is of legal age,

with present address at Block 59 Lot 60 La Naval St., Lagro
Novaliches, Quezon City.

2. Public respondent NATIONAL LABOR RELATIONS

COMMISSIONS, FIRST DIVISION, is impleaded herein being a
quasi-judicial body which rendered the assailed Decision and
Resolution which are the subject of this petition. It may be served
with pleadings, orders, notices and other court processes at its
office in Quezon City.

3. Respondent ASIAN SCHOOL OF HOSPITALITY ARTS

is a corporation duly organized and existing under Philippine laws.
It may be served with pleadings, orders, notices and other court
processes through the undersigned counsel at its address
indicated herein below.

4. Respondent RICO TRINIDAD is impleaded for being the

person responsible for the illegal dismissal of complainant. It may
be served with pleadings, orders, notices and other court
processes through the undersigned counsel at its address
indicated herein below.

5. Respondent ROSALINA MARIA O. APITA-BATTUNG,

(the Labor Arbiter) may be served with pleadings, orders,
notices and other court processes at NLRC, Quezon City.

II. TIMELINESS OF THE PETITION

1. On 15 February 2017, petitioner received the assailed

decision of respondent NLRC dated 06 February 2017 dismissing
petitioners appeal from the decision of respondent Labor Arbiter
dated 28 October 2016.

2. On 27 February 2017, petitioner filed a Motion for

Reconsideration of respondent NLRCs assailed decision dated 06
February 2017. On 17 April 2017, petitioner received the assailed
Resolution dated 07 April 2017 of respondent NLRC denying its
Motion for Reconsideration.

3. Thus, petitioner has until 16 June 12017 within which to

file this Petition for Certiorari.

4. Hence, this Petition is filed within the period provided

for under Section 4, Rule 65, as amended, of the 1997 Rules of
Civil Procedure.

III. ATTACHMENTS

In compliance with Revised Circular 1-88, the following

documents and attachments are made integral part of the
foregoing Petition for Certiorari, viz:

1. EXHIBIT A

IV. STATEMENT OF THE FACTS AND CASE

1. This is the second time that this case is before this

Honorable Court.

2. In the first time (CA-G.R. SP No. 67442), this Honorable

Court dismissed the appeal by certiorari from the 2001 NLRC
Resolutions (see above par. 5, I. THE CASE IN BRIEF). The
dismissal was made by this Honorable Court (Fourth Division) in a
Resolution dated July 31, 2002.

3. The case a quo was an illegal dismissal case filed

against petitioners Tuna Export Division before the NLRC Sub-
Regional Arbitration Branch (RAB) XI, General Santos City (the
Illegal Dismissal Case). The NLRC Judgment directed petitioner
to reinstate complainants to their former positions plus payment
of full back wages. Since reinstatement was no longer possible
due to closure of petitioners tuna business, the Supreme Court
modified the NLRC Judgment. In lieu of the reinstatement of
complainants plus payment of their full back wages, the Supreme
Court ordered petitioner to pay separation pay equivalent to one
month pay or one-half month for every year of service, whichever
is higher.

4. As footnoted on page 1 of the Supreme Court Decision

(Annex D), the complaint in the case a quo only specifically
mentioned five employees and the rest as 901 other
employees. Consequently, when the NLRC Judgment was sought
to be executed, the question as to the identities of the employees
entitled to payment arose.

5. In its Resolution dated February 16, 2001, respondent

NLRC clarified that only thirty five (35) out of the alleged 906
former employees were covered by the NLRC Judgment. The said
2001 NLRC Resolution ruled that only 35 complainants were
proven to be employees of petitioner. In fact, four (4) out of the
alleged 906 complainants listed as employees were established to
be fictitious. The 2001 NLRC Resolution said:
The status of complainants employment is,
therefore, the factum probansxxx. 35 (not 39 since
Junior Macaombao, Alberto Pea, Jr., Carlito Cario and
Nanagda Sal were admittedly not legitimate
complainants in this case) of the 906 listed
complainants submitted their affidavits purportedly
proving that they were regular employees of
respondentxxx. Based on these pieces of evidence, this
Commission, in its decision dated June 30, 1995, found
complainants, without specifically alluding to the 906
workers, to be regular employees of respondent and
consequently illegally dismissed from employment .
On petition for review by certiorari, the Supreme Court
affirmed the said decision, subject to the modification
 that the period for the computation of the monetary
award is until the cessation of respondent
establishments operation in November, 1994. Nothing
therefrom can We even draw the inference that this
Commission and the Supreme Court did rule that the
906 complainants should be entitled to the monetary
awards as complainants-appellant would want to make
it appear. (Underscoring supplied)

5. In a Resolution dated September 17, 2001, respondent

NLRC denied complainants Motion for Reconsideration.
Respondent NLRC affirmed its earlier decision that only 35
complainants were proven to be employees of petitioner. It
explained its decision in this wise:
If at all this Commission and the Supreme Court
mentioned the 906 complainants in the recital of facts
portion of decision, this only refers to the total number
of workers who caused the filing of the instant case.
The act of filing a complaint is one thing, while the task
of proving the cause of action is another thing. As
heretofore said, only the 35 complainants ably proved
their claim that they were regular employees and
therefore, were illegally dismissed. We cannot admit
and consider the pieces of evidence belatedly
presented by the first group of appellant workers,
through representative Mr. Narciso Aguilar, Jr. without
militating against due process the fundamental right of
any person, natural or juridical as in the case of
respondent company herein. Needless to say, said
documents would only proved the employment of the
workers concerned with respondent company.
(Underscoring supplied)

6. On 30 August 2002, this Honorable Courts Resolution

(ANNEX I) dismissing the appeal by certiorari (ANNEX J) from the
2001 NLRC Resolutions of respondent NLRC became final and
executory (ANNEX K). Consequently, the 2001 NLRC Resolutions,
likewise, became final and executory. The alleged 906
complainants did not appeal. On the contrary, Rodolfo Cordova
(Cordova), lead complainant in the Illegal Dismissal Case, filed a
Motion to Dismiss Petition stating that he and Narciso Aguilar, Jr.
filed their Petition without express written conformity to do so
from any of the complainants numbering 906 (ANNEX L).

7. With the finality of the 2001 NLRC Resolutions,

petitioner moved to satisfy the NLRC Judgment. Petitioner then
paid Cordova, the lead complainant and the only complainant who
verified the Complaint and Position Paper, the amount of
P129,722.66. The said amount is the full amount of Cordovas
separation pay as determined by the Labor Arbiter. Cordova
executed a Notice of Satisfaction of Judgment (ANNEX M).

8. Petitioner also offered to pay P65,000.00 to each of the

remaining 34 complainants. The said complainants accepted the
said offer and, through their counsel, executed a Stipulation of
Facts/Compromise Agreement (ANNEX N).

8.1. Of the 34 complainants, 20 have actually received

their payment, namely: Nena A. Capoy, Maria Luz W.
Inventado, Medie S. Coros, Sorohayda M. Diamad, Julieta G.
Utod, Marivic Bendejo, Ireneo S. Montero, Jr., Virgie Ejor,
Ramon D. Canonero, Arsenia H. Concepcion, Natalino
Estacion, Ebenezer Carbonell, Natividad Solano, Simplicia
Dinoy, Fernando Panes, Imelda Manatad, Mustapha Talaguia,
Taingan Panguiuma, Dante Torreda and Teresita Arcadio.

8.2. With respect to the 14 complainants who have not

yet received their payments, namely Ruben G. Agbon,
Eulalia B. Bernil, Fatima Linan, Layba Panudsing, Parida
Maswal, Latya Dimacaling, Mary Jane Cantillo, Evelyn
Catequista, Wenceslao B. Tesara, Jr., Jose Estrella, Ramina
Magalina, Alberto Pacaldo, Arnolfo Tangcawan and Amelia
Romero, the checks prepared for them by petitioner are
ready for release subject to their appearance and production
of documents that would establish their identities.
 9. Petitioner also offered to pay P30,000.00 to each of the
alleged remaining employees EXCLUDING the four (4)
complainants found to be fictitious.

10. Subsequent to the NLRC Judgment, 804 of the 902

Respondents executed a Stipulation of Facts/Compromise
Agreement with petitioner. With respect to the claimants who
were denied of any award under the 2001 NLRC Decisions, the
parties Stipulation of Facts/Compromise Agreement states:
respondents, as a humanitarian gesture, offered to pay
complainants the amount of THIRTY THOUSAND PESOS
(P30,000.00) each. Complainants have accepted the
offer and each and every one of them affirms that the
payment to him or her of the amount of P30,000.00
shall be a full satisfaction of any and all claims that he
or she has against respondents PFC and Marciano C.
Aganon. xxx The award of P30,000.00 for each
complainant covering back wages and separation pay is
a fair and reasonable amount considering that (i) there
are no specifics and details of employment record of
each and every complainant upon which a fair
computation of complainants back wages and
separation pay may be based (Hon. Enrico Angelo C.
Portillos Resolution and Order dated 20 November
2000), and (ii) the record is insufficient to show when
the tuna cannery division of respondents actually
ceased operations before its closure.

10.1 The 804 claimants consist of all the 712 claimants

represented by Atty. Edwin Torres (the 712 Torres
Principals) and 92 of the 194 claimants represented by
Narciso Aguilar, Jr. (the Aguilar Principals).

10.2.On October 15, 2001, the 712 Torres Principals and

50 Aguilar Principals and petitioner entered into a Stipulation
of Facts/Compromise Agreement (ANNEX O).
 10.3.On November 5, 2001, 31 of the Aguilar Principals
and petitioner entered into a Stipulation of
Facts/Compromise Agreement (ANNEX P).

10.4.On December 5, 2001, another 11 of the Aguilar

Principals and petitioner entered into a Stipulation of
Facts/Compromise Agreement (ANNEX Q).

11. Out of the 804 claimants who executed Stipulation of

Facts/Compromise Agreements with petitioner, 527 already
received their respective payments (ANNEX R). Each of the 527
had executed and filed their individual Notice of Satisfaction of
Judgment with respondent NLRC and copies were furnished to
NLRC, Sub-Regional Arbitration Branch No. XII, General Santos
City. Petitioner expressly reserves the right to submit copies of
the 527 individual Notice of Satisfaction of Judgment should this
Honorable Court require the submission thereof.

12. On 27 December 2002, respondent NLRC approved the

Stipulation of Facts/Compromise Agreements entered into by the
petitioner and the 804 alleged employees and the individual
Notices of Satisfaction of Judgment filed by the 527 alleged
employees (ANNEX S). Respondent NLRC stated in the dispositive
portion of its Resolution dated December 27, 2002 that:
WHEREFORE, the above-entitled case as to these
complainants/workers, less Manuel V. Cario and Mary
Jane O. Yap, is considered Closed and Terminated for
having been amicably settled.

SO ORDERED. (Emphasis and Underscoring

supplied).

13. The 2001 NLRC Resolutions limited the execution

between petitioner and the 35 complainants. The Stipulation of
Facts/Compromise Agreement entered into by petitioner and the
804 alleged employees also limited the entitlement of the said
alleged former employees of petitioner.
 14. But on 5 May 2003, Atty. Remigio Rojas of the Santos
and Rojas Law Offices filed an Omnibus Motion to Submit Affidavit
and to Set New Fiscal Examination (ANNEX T) on behalf of all the
906 listed complainants, including the four (4) complainants
found to fictitious. Atty. Rojas and his firm claimed to represent all
the 906 listed complainants; however, he did not produce any
authority executed by each of the 906 listed complainants
authorizing him or his firm to represent them. As a matter of fact,
the counsels of record of the 906 listed complainants, namely:
Attys. Edwin E. Torres and Claudio Aguilar, have not withdrawn
their appearances in behalf of the said complainants.

15. Due to Atty. Rojas or his firms lack of authority to

represent all the 906 listed complainants, petitioner filed a Motion
to Show Authority (ANNEX U). In its Motion, petitioner maintains
that Atty. Rojas or his firm must specify the names of the parties
they allegedly represent and produce or prove his or his firms
authority to do so. To date, Atty. Rojas and his firm have failed and
refused and still fails and refuses to show their authority.
16. Petitioner filed a Comment to Atty. Rojas Omnibus
Motion (ANNEX V). Petitioner argued that respondent Labor
Arbiter has no power and it is beyond his jurisdiction to alter the
final and executory NLRC Judgment.

17. On January 5, 2005, respondent Labor Arbiter issued his

assailed Order directing each of the individual complainants to
fill-up the form attached to this order, in order to determine the
interest of each individual complainant to this case, verify their
respective claims, the amounts already received from
respondents, and the Authenticity of their persons and
signatures.

18. As respondent Labor Arbiter gravely abused his

discretion in acting upon the Omnibus Motion and in issuing his
Order dated January 5, 2005, petitioner filed an appeal with
respondent NLRC (ANNEX W).

19. Respondent NLRC dismissed petitioners appeal in the

Questioned Resolution dated April 14, 2005 on the ground, which
petitioner submits is erroneous, that the Labor Arbiters Order is
interlocutory and not subject to appeal. Petitioner filed a Motion
for Reconsideration from the dismissal of its appeal (ANNEX X).
But the same was likewise denied by the NLRC in a Resolution
dated June 30, 2005. Hence, this Petition.

V. GROUNDS FOR ALLOWANCE OF THIS PETITION

RESPONDENT NLRC COMMITTED GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN ISSUING THE QUESTIONED
RESOLUTIONS ALLOWING RESPONDENT LABOR
ARBITER TO EXECUTE THE NLRC JUDGMENT:

A. IN A WAY THAT VARIES THE NLRC JUDGMENT;

B. IN FAVOR OF CLAIMANTS WHOSE CLAIMS

WERE DISMISSED BY THE NLRC JUDGMENT;

C. IN FAVOR OF CLAIMANTS IN WHOSE RESPECT

RESPONDENT NLRC HAD CONSIDERED
CLOSED AND TERMINATED FOR HAVING
BEEN AMICABLY SETTLED; AND
D. UPON MOTION OF COUNSEL NOT
AUTHORIZED TO ACT FOR PARTIES HE
CLAIMS TO REPRESENT.

II

THE HONORABLE NLRC COMMITTED GRAVE ABUSE

OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN IT DISMISSED
PETITIONERS APPEAL ON THE GROUND THAT THE
ORDER OF THE EXECUTIVE LABOR ARBITER DATED
5 JANUARY 2005 WAS INTERLOCUTORY

VI. DISCUSSION

RESPONDENT NLRC COMMITTED GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN ISSUING THE QUESTIONED
RESOLUTIONS ALLOWING RESPONDENT LABOR
ARBITER TO EXECUTE THE NLRC JUDGMENT:

A. IN A WAY THAT VARIES THE NLRC JUDGMENT;

B. IN FAVOR OF CLAIMANTS WHOSE CLAIMS

WERE DISMISSED BY THE NLRC JUDGMENT;

C. IN FAVOR OF CLAIMANTS IN WHOSE RESPECT

RESPONDENT NLRC HAD CONSIDERED
 CLOSED AND TERMINATED FOR HAVING
BEEN AMICABLY SETTLED; AND

D. UPON MOTION OF COUNSEL NOT

AUTHORIZED TO ACT FOR PARTIES HE
CLAIMS TO REPRESENT.

The NLRC Judgment had long became FINAL and EXECUTORY.

It is fundamental that a final and executory decision cannot be
amended or corrected1 except for clerical errors or mistakes. 2 A
definitive judgment is no longer subject to change,
revision, amendment, or reversal3 and the court loses
jurisdiction over it, except to order its execution.4

Thus, when the NLRC Judgment became final and executory,

respondent Labor Arbiter lost jurisdiction over it, except to order
its execution (PY Eng Chong v. Herrera, 70 SCRA 130). Thus,
respondent Labor Arbiter committed grave abuse of discretion
and acted in excess or without jurisdiction in executing the NLRC
Judgment in a way that varies its terms and in favor of claimants
whose claims were already rejected by respondent NLRC.
Respondent Labor Arbiters grave abuse of discretion is so patent
and gross because he clearly and unquestionably evaded his
duty, which is merely to execute a FINAL and EXECUTORY
decision.

Respondent Labor Arbiters Order dated January 5, 2005

varies the final and executory NLRC Judgment. Respondent Labor
Arbiters Order directed the complainants to accomplish the form
he devised in order to determine their alleged interest, respective
claims, amounts already received and identities. Undoubtedly,
respondent Labor Arbiters Order will eventually lead to the re-
opening and re-examination of the issue of whether or not the
alleged former employees numbering 867 are entitled to
monetary award.

1 First Integrated Bonding and Insurance Company, Inc. v. Hernando, 199 SCRA 796 (1991).
2 Maramba v. Lozano, 20 SCRA 474 (1967); Reyes v. Court of Appeals, 189 SCRA 46 (1990).
3 Miranda v. Court of Appeals, 71 SCRA 295 (1976).
4 PY Eng Chong v. Herrera, 70 SCRA 130 (1976).
 But this issue had long been decided with finality by
respondent NLRC. As abovementioned, the 2001 NLRC
Resolutions had decreed that only 35 out of the 906 listed
complainants were proven to be employees of petitioner; hence,
they are the only ones entitled to monetary award adjudged in
the NLRC Judgment. Respondent Labor Arbiter cannot, in any way,
execute the NLRC Judgment in favor of claimants whose claims
were already rejected by respondent NLRC.

Since respondent Labor Arbiter had already lost jurisdiction

over the case, except to order its execution, his ministerial duty is
merely to execute the NLRC Judgment in accordance with what is
contained in the dispositive portion thereof, as subsequently
modified by the parties Stipulation of Facts/Compromise
Agreement. This is in accordance with the well-settled rule that:
It is basic that only portion of the decision that
becomes the subject of execution is that ordained in
the dispositive portion. Whatever may be found in the
body of the decision can only be considered as part of
the reasons or conclusions of the court and while they
may serve as guide for enlightenment to determine the
ratio decidendi, what is controlling is what appears in
the dispositive part of the decision. The lower court
cannot vary the mandate of the superior court or
reexamine it for any other purpose than execution;
much less may it review the same upon any matter
decided on appeal or error apparent; nor interfere with
it further than to settle so much as has been
demanded.5

In one case, it was held that it was beyond the power and
competence of a labor arbiter to issue a writ of execution which
ordered the company to reinstate the employees whereas the
decision does not so decree.6 Citing Chief Justice Moran, the
Supreme Court held:
The writ of execution must conform to the
judgment which is to be executed, as it may vary the
terms of the judgment it seeks to enforce. Nor it may go
5 Tropical Homes, Inc. v. Fortun, 169 SCRA 81 (1989).
6 Yu v. NLRC, G.R. Nos. 111810-11, June 16, 1995.
 beyond the terms of the judgment, sought to be
executed. Where the execution is not harmony
with the judgment which gives it life and exceeds
it, it has pro tanto no validity. To maintain
otherwise would be to ignore the constitutional
provision against depriving a person of his
property without due process of law. (Emphasis
and underscoring supplied)

It is axiomatic that every litigation must come to an end.

While access to the court is guaranteed, there must be a limit to
it. Thus, in Ngo Bun Tiong v. Judge Sayo,7 the Supreme Court had
occasion to reiterate the often cited principle that:
Once a litigants right has been adjudicated in a valid
final judgment of a competent court, he should not be
granted an unbridled license to come for another try.
The prevailing party should not be harassed by
subsequent suits. For, if endless litigation were to be
encouraged, unscrupulous litigations will multiply in a
number to the detriment of the administration of
justice.

To discourage endless and unscrupulous litigations, it is

firmly established jurisprudence in our jurisdiction that once a
decision had already become final and executory, the same
cannot be disturbed, altered or modified. It becomes immutable
and unalterable. Thus, in the case of Aboitiz Shipping Employees
Association v. Trajano,8 it was pointed out that:
x x x except for correction of clerical errors or the
making of nunc pro tunc entries which cause no
prejudice to any party or where the judgment is void,
after the judgment has become final and executory, the
same can neither be amended nor altered even if the
purpose is to correct perceived to be an erroneous
conclusion of fact or law. This is true regardless of
whether the modification is to be made by the
7 G.R. No. 45825, June 30, 1988.
8 G.R. No. 112955, Sept. 1, 1997.
 magistrate that rendered the judgment, or by the
appellate magistrate that reviewed the same. Indeed,
all litigation must come to an end however unjust the
result of error may appear. Otherwise, litigation would
even be more intolerable than the wrong or injustice it
is designed to correct.

Respondent Labor Arbiter also committed grave abuse of

discretion in executing the NLRC Judgment in favor of claimants in
whose respect respondent NLRC had considered Closed and
Terminated. The petitioner had already executed the NLRC
Judgment. As abovementioned, petitioner had paid complainant
Cordova his full monetary award. The remaining 34 complainants
had already executed, through their counsel, Stipulation of
Fact/Compromise Agreement and individually executed and filed a
Notice of Satisfaction of Judgment, which was approved by
respondent NLRC. With regards to the alleged former employees
of petitioner, they had likewise executed Stipulation of
Fact/Compromise Agreement with petitioner and filed their
respective Notice of Satisfaction of Judgment. In view of the
foregoing, there is nothing more to execute. In fact, respondent
NLRC decreed that insofar as the complainants/workers who have
executed their respective Notice of Satisfaction of Judgment, the
case is considered Closed and Terminated. Significantly, none
of the 902 Respondents appealed the Resolution of respondent
NLRC. Thus, for all intents and purposes, the said Resolution
became final and executory.
The case a quo having been decreed Closed and
Terminated by final and executory Resolution of respondent
NLRC, respondents Labor Arbiter and NLRC cannot again revive or
re-open it. Definitely, the Stipulation of Facts/Compromise
Agreements entered by petitioner and the 804 claimants was in
the nature of a compromise agreement, i.e., an agreement
between two or more persos, who, for preventing or putting an
end to a lawsuit, adjust their difficulties by neutral consent in the
manner which they agree on, and which every of them prefers to
the hope of gaining balanced by the danger of losing.
 In Reformist Union of R.B. Liner v. NLRC,9 the Supreme Court
held that a compromise agreement voluntarily entered into binds
the parties. On this score, the Supreme Court said, the Labor
Code bestows finality to unvitiated Compromise Agreements. In
light of Article 2037 of the Civil Code, which gives compromise
agreements the effect and authority of res judicata upon the
parties to the same, even when effected without judicial approval,
respondents Labor Arbiter and NLRC therefore erroneously
revived an issue which had already been laid to rest by the
parties themselves, and which applying the principle of res
judicata, they could no longer relitigate.

Respondents Labor Arbiter and NLRC, therefore, grievously

erred when they executed the NLRC judgment in favor of
claimants whose cases have been decreed Closed and
Terminated for having been amicably settled. Applying the
principle of res judicata, the NLRC judgment cannot anymore be
re-opened, re-litigated or revived either by respondent Labor
Arbiter or respondent NLRC.
Also, the failure of the respondent Labor Arbiter to require
Atty. Rojas or his firm to submit or prove his or its authority to act
for any of the 906 alleged former employees of petitioner
amounts to an evasion of his positive duty or to a virtual refusal
to perform a duty enjoined by law. Since Atty. Rojas or his firm
cannot show any authority to act for any of the 906 alleged
former employees of petitioner, his motion should have been
treated as a mere scrap of paper.

It is well settled that any judicial proceeding conducted by or

participated in by a counsel who is not duly authorized is null and
void. It will be recalled that petitioner had directly and expressly
questioned the authority of Atty. Rojas or his firm to act for any of
the 906 alleged former employees of petitioner. In New York
Marine Managers, Inc., v. Court of Appeals,10 the Supreme Court
held:
True, a lawyer is generally presumed to be properly
authorized to represent any cause in which he appears,

9 G.R. No. 120482, Jan. 27, 1997.

10 G.R. No. 111837, Oct. 24, 1995, citing Tan Lua v. OBrien, 55 Phil. 53 (1930).
 and no written power of attorney is required to
authorize him to appear in court for his client. But this
presumption is disputable. Where said authority has
been challenged or attached by the adverse party the
lawyer is required to show proof of such authority or
representation in order to bind his client. The
requirement of the production of authority is essential
because the client will be bound by his acquiescence
resulting from his knowledge that he was being
represented by said attorney. In the instant case, the
extent of authority of counsel for petitioner has been
expressly and continuously assailed but he has failed to
show competent proof that he was indeed duly
authorized to represent petitioner. (Underscoring
supplied).

Conformably with the above-cited case, it was incumbent

upon the respondent Labor Arbiter to order Atty. Rojas or his firm
to show competent proof that he or his firm was indeed duly
authorized to represent the 906 alleged former employees of
petitioner. Inexplicably, respondent Labor Arbiter did not do what
is required of him by Section 21, Rule 138 of the Rules of Court,
which has suppletory application to labor cases (Sec. 3, Rule I,
The New Rules of Procedure of the NLRC), to wit:
An attorney is presumed to be properly
authorized to represent any cause in which he appears,
and no written power of attorney is required to
authorize him to appear in court for his client, but the
presiding judge may, on motion of either party and on
reasonable grounds therefore being shown, require any
attorney who assumes the right to appear in a case to
produce or prove the authority under which he appears,
and to disclose, whenever pertinent to any issue, the
name of the person who employed him, and may
thereupon make such order as justice requires. An
attorney willfully appearing in court for a person
without being employed, unless by leave of court, may
be punished for contempt as an officer of the court
who has misbehaved in
 his official transactions.

For utter failure of Atty. Rojas or his firm to show any

authority to act for any of the 906 alleged former employees
either in collaboration with or independently from the counsels of
record of the alleged 906 former employees, his Omnibus Motion
should have been slain at sight and, after due notice and
hearing, he should be punished for contempt in view of his
misrepresentation.

II

THE HONORABLE NLRC COMMITTED GRAVE ABUSE

OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN IT DISMISSED
PEREMPTORILY PETITIONERS APPEAL ON THE
MERE PRETEXT THAT THE ORDER OF THE
EXECUTIVE LABOR ARBITER DATED 5 JANUARY
2005 IS MERELY INTERLOCUTORY IN NATURE

With all due respect, the finding of respondent NLRC that the
Order dated January 5, 2005 of Executive Labor Arbiter Baustista
was merely an interlocutory order, hence, not within the appellate
jurisdiction of respondent NLRC has no basis both in substantive
law and jurisprudence.
Article 223 of the Labor Code of the Philippines, provides,
that:

ART. 223. Appeal Decisions, awards, or

orders of the Labor Arbiter are final and executory
unless appealed to the Commission by any or both
parties within ten (10) days from receipt of such
decisions, awards, or orders. Such appeal may be
entertained only on any of the following grounds:
 (a) If there is prima facie evidence of abuse of
discretion on the part of the Labor Arbiter;
(b) If the decision, order, or award was secured
through fraud or coercion, including graft and
corruption;
(c) If made purely on questions of law;
(d) If serious errors in the finding of facts are raised
which would cause grave or irreparable damage or
injury to the appellant.
Xxx (Italics, emphasis and underscoring ours.)

The above provisions have conferred upon the respondent

NLRC the appellate jurisdiction of the decisions, awards, orders
of the labor arbiter. The said provisions do not make any
distinction as to whether the order is interlocutory or final. We
should not distinguish where the law does not distinguish. Ubi lex
non distinguit, nec nos distinguere debemus.

In fact, the Supreme Court in FEMs Elegance Lodging House,

Et Al., vs. Leon Murillo11 has ruled that all orders of labor arbiters
should be appealed to respondent NLRC including interlocutory
ones before any petition for certiorari may be entertained under
Rule 65 of the Rules of Court.

Be that as it may, it is respectfully submitted that the

questioned Order dated January 5, 2005 of respondent Labor
Arbiter is not an interlocutory order but an order that finally and
completely disposes the contentions of the parties.
A final order is one that finally disposes a cases leaving
nothing more to be done by the court in respect thereto, while an
order that does not finally dispose of the case, and does not end
the courts task of adjudicating the parties contention and
determining their rights and liabilities as regards each other, but
obviously indicates that other things remain to be done by the
court, is interlocutory.12

11 G.R. Nos. 11744-43, Jan. 11, 1995

12 Investment, Inc. vs. Court of Appeal, G.R. No. 60036, Jan. 27, 1987.
 In the case the bar the questioned order itself indubitably
shows the final and complete adjudication of the contentions of
the parties, to wit:

This resolves the issues raised by the

complainants in their position paper dated
December 3, 2003, to wit:

1. That this Branch has the jurisdiction to

implement the final and executory decision in this
case;

2. That the November 20, 2000 Order of

Labor Arbiter Enrico Portillo cannot alter the
decision of the Supreme Court;

3. That there is no legal basis to the argument

that only those covered in the November 20,
2000 resolution are entitled to the monetary
award (The resolution granted only the awards of
the 39 complainants).

xxx xxx xxx

In fine, to put things in its proper

perspective, this Executive Labor Arbiter hereby
orders each individual complainants in this
case to fill-up the form attached to this
order, inorder to determine the interest of
each individual complainant in this case,
verify there respective claims, the amounts
already received from respondents, and the
Authencity of their persons and signatures.
All the existing complainants are hereby required
to submit the respective accomplished forms until
March 31, 2005 or otherwise submit a formal
explanation for their late submission.

SO ORDERED.
 General Santos City, Philippines, January 5,
2005.

(SGD.) TOMAS B. BAUTISTA, JR. CESO III

Executive Labor Arbiter
(Emphasis Supplied)

Clearly, in ordering the individual complainants to fill-up the

attached form in order to determine the interest of each
individual complainant in this case, verify there respective claims,
the amounts already received from respondents, and the
Authencity of their persons and signatures, the respondent Labor
Arbiter has undoubtedly passed upon the issues of jurisdiction
and the validity of the November 20, 2000 Order of Labor Arbiter
Enrico Portillo. Otherwise, it would be a useless and futile exercise
to allow the submission of the attached form, if respondent Labor
Arbiter has no jurisdiction or the 2001 NLRC Resolutions do limit
the complainants to 35.

The respondent Labor Arbiter in allowing the individual

complainants to fill-up the attached form has effectively ruled that
it has jurisdiction to take cognizance of the incident and there
were other complainants aside from the 35 complainants
recognized by the 2001 NLRC Resolutions. The questioned order
leaves nothing more to be done to settle the contentions raised
by the parties. Hence, it defies elementary logic and common
sense to say that the questioned order did not pass upon the said
contentions.

Having passed upon the said contentions, the petitioner is

left with no other option but to appeal the questioned order to
respondent NLRC, pursuant to Article 223 of the Labor Code of the
Philippines.

VII. ALLEGATIONS IN SUPPORT OF THE PRAYER FOR

ISSUANCE OF TEMPORARY RESTRAINING ORDER AND
WRIT OF PRELIMINARY INJUNCTION
 Injunction is a preservative remedy aimed at protecting
substantive rights and interests. The writ of preliminary injunction
is issued by the court to prevent threatened or continuous
irremediable injury to some of the parties before their claims can
be thoroughly studied and adjudicated.13

It has been adequately shown that respondents Labor Arbiter

and NLRC have committed capricious, arbitrary, despotic and
whimsical exercise of their power, which is the very antithesis of
the judicial prerogative. After respondent NLRC had rendered a
final judgment that the case a quo is Closed and Terminated for
having been amicably settled, respondents Labor Arbiter and
NLRC are now attempting to execute again the NLRC Judgment.
Worst, the execution attempted to be done by respondents Labor
Arbiter and NLRC are in favor of complainants whose claims have
been rejected by respondents themselves. If respondents Labor
Arbiter and NLRC will not be stopped from executing the NLRC
Judgment in an unlawful and oppressive way, as above discussed,
petitioner will suffer grave and irreparable injury. For sure,
petitioner will be deprived of its property without and in gross
violation of its right to due process of law.

All the foregoing show and establish that the petitioner is

entitled to the measures of relief demanded, and that the whole
or part of such relief consists in prohibiting respondent Labor
Arbiter or any other Labor Arbiter of NLRC Sub-Regional
Arbitration Branch (RAB) XII, General Santos City, from acting
upon any motion or application pending or to be filed by any or all
of herein 902 respondents seeking to execute in their favor or
their successors-in-interest the NLRC Judgment.

It has been shown that the commission of the acts

complained of during the litigation would work injustice and cause
grave and irreparable injury to petitioner. Unless respondents
Labor Arbiter and NLRC are immediately restrained by this
Honorable Court, petitioner stands to suffer grave injustice and
irreparable injury that cannot be fully compensated for the
damages which it stands to suffer.

13 Del Rosario v. Court of Appeals, 255 SCRA 152.

 Petitioner is ready, willing and able to post a bond in such
amount as may be fixed by this Honorable Court to the effect that
petitioner will pay the 902 Respondents the damages which they
may sustain by reason of the issuance of such injunction if this
Honorable Court should finally decide that petitioner is not
entitled thereto.

In view of petitioners prayer for Temporary Restraining

Order and Preliminary Injunction, it is paying additional filing fee
in the sum of P1,000.00 through postal money order.

PRAYER

WHEREFORE, petitioner respectfully prays that upon the

filing of this Petition, a Temporary Restraining Order and/or
Preliminary Injunction be issued prohibiting respondent Labor
Arbiter or any other Labor Arbiter of NLRC Sub-Regional
Arbitration Branch (RAB) XII, General Santos City, from acting
upon any motion or application to execute the NLRC Judgment.

Petitioner respectfully prays that, after due hearing, the writs

of certiorari and prohibition be issued:

(1) nullifying and setting aside the Order dated January 5,

2005 of respondent Labor Arbiter;

(2) nullifying and setting aside the Resolutions dated April

14, 2005 and June 30, 2005 of respondent NLRC;

(3) declaring the NLRC Judgment satisfied and executed in

respect of Cordova and the other 20 out of the 34
complainants who have already received their
payment, namely: Nena A. Capoy, Maria Luz W.
Inventado, Medie S. Coros, Sorohayda M. Diamad,
Julieta G. Utod, Marivic Bendejo, Ireneo S. Montero, Jr.,
Virgie Ejor, Ramon D. Canonero, Arsenia H.
Concepcion, Natalino Estacion, Ebenezer Carbonell,
Natividad Solano, Simplicia Dinoy, Fernando Panes,
 Imelda Manatad, Mustapha Talaguia, Taingan
Panguiuma, Dante Torreda and Teresita Arcadio.

(4) ordering the execution of the NLRC Judgment as

modified/novated by the compromise agreement with
14 of the 34 complainants who have not yet received
their payment, namely: Ruben G. Agbon, Eulalia B.
Bernil, Fatima Linan, Layba Panudsing, Parida Maswal,
Latya Dimacaling, Mary Jane Cantillo, Evelyn
Catequista, Wenceslao B. Tesara, Jr., Jose Estrella,
Ramina Magalina, Alberto Pacaldo, Arnolfo Tangcawan
and Amelia Romero;

(4) declaring Atty. Remigio P. Rojas and Santos Rojas de

Pedro & Associates without authority to represent the
902 Respondents; and

(5) prohibiting respondent Labor Arbiter or any other Labor

Arbiter of NLRC Sub-Regional Arbitration Branch (RAB)
XII, General Santos City, from acting upon any motion
or application pending or to be filed by any or all of
herein 902 respondents seeking to execute in their
favor or their successors-in-interest the NLRC Judgment.

Other measures of relief, just and equitable in the premises,

are likewise prayed for.

Makati City for Cagayan De Oro City, 20 September 2005.

QUIAL GINEZ & BELTRAN

th
5 Floor, M.G. Building, 150 Amorsolo St.
Legaspi Village, 1229 Makati City
By:

SANTIAGO C. QUIAL
Roll No. 40082
IBP No. 591557; PPLM Chapter; 1/11/05
PTR No. 0048862; Pasay City; 1/11/05
 WINSTON M. GINEZ
Roll No. 41114
IBP No. 635491/01-10-05/Zambales
PTR No. 9451668/01/12/05/Makati

CRISOSTOMO CHAN BELTRAN

Roll No. 45423
IBP No. 02911; Lifetime Member
PTR No. 3633538; 1/18/05; Manila

RICHELDA C. NATANAUAN
Roll No. 50202
IBP Bo. 649722/04-13-05/PPLM
PTR No. 6786769/05-13-05/Las Pias

Copy furnished:

National Labor Relations Commission

Fifth Division
Cagayan De Oro City

Santos Rojas De Pedro & Associates

Pantua Compound, Mabini Extension
Koronadal City, South Cotabato.

Hon. Tomas B. Bautista, Jr.

Executive Labor Arbiter
NLRC Sub-Regional Arbitration Branch XII
General Santos City

EXPLANATION
Copies of the foregoing Petition were filed and served by
registered mail due to distance of the place where the same will
be filed and served.
RICHELDA C. NATANAUAN