G.R. No.

L-16600 December 27, 1961

ILOILO CHINESE COMMERCIAL SCHOOL, petitioner,
vs.
LEONORA FABRIGAR and THE WORKMEN'S COMPENSATION COMMISSION, respondents.

Luis G. Hofileña for petitioner.

J. T. de Leon for respondents.

PAREDES, J.:

As a result of the death of Santiago Fabrigar, on June 28, 1956, his heirs in the person of Leonora Fabrigar (common-law wife) and
their children, filed a claim for compensation with the Workmen's Compensation Commission, Case No. 1085, W.C.C., entitled
"Leonora Fabrigar, et al., Claimants, vs. Iloilo Chinese Commercial School, Respondent." In this claim, it was alleged that the cause of
death was " pulmonary tuberculosis contracted during and as a result of his employment as janitor." The Hearing Officer of the WCC
denied the claim and dismissed the case, finding that the claimant failed to prove the casual effect of employment and death; nothing
was shown that the disease was contracted in line of duty; that whatever evidence claimant presented about the cause of death was
only a mere suggestion that progressively developed from tuberculosis with heart trouble to a sudden fatal turn, ending up for the cause
of "beriberi adult" at the time of death, as per certification of Sanitary Inspector Dr. P. E. Labitoria, of Dao, Capiz (Exhibits C & 4).

The heirs of Santiago Fabrigar appealed the decision with the Workmen's Compensation Commission which, on November 12, 1959,
rendered judgment reversing the decision of its Hearing Officer, making the following findings of facts:

That Santiago Fabrigar had been employed from 1947 to March 12, 1956, as a janitor-messenger of the respondent Iloilo Chinese
Commercial School, his work consisting of sweeping and scrubbing the floors, cleaning the classrooms and the school premises, and
other janitorial chores; on March 11, 1956, preparatory to graduation day, he carried desks and chairs from the classrooms to the
auditorium, set the curtains and worked harder and faster than usual; that although he felt shortness of breath and did not feel very well
that day, he continued working at the request of the overseer of respondent, that on the following day he reported for work, but on
March 13, he spat blood and stopped working; that from April 29, 1956 to May 15, 1956, he was under treatment by Dr. Quirico Villareal
"for far advanced pulmonary tuberculosis and for heart disease"; and that previous to said treatment, he was attended by Dr. Jaranilla
for pulmonary tuberculosis. The Commission concluded that the short period of intervention between his last day of work (March 13,
1956) when he spat blood and his death on June 28, 1956, due to pulmonary tuberculosis, indicated that he had been suffering from
such disease even during the time he was employed by the respondent and considering the strenuous work he performed, his
employment as janitor aggravated his pre-existing illness; that although here is a discrepancy between the cause of death "beriberi
adult," as appearing in the death Certificate and the testimony of Dr. Villareal, the latter deserves more credence, because the
information (cause of death) was given by the sanitary inspector who did not, in any way, examine the deceased before or after his
death. The Commission, therefore, ordered the respondent Chinese Commercial School, Inc., in said case —

1. To pay to the claimant, for and in behalf of her minor children by the deceased, namely, Carlito, Gloria, Rosita and Ernesto, all
surnamed Fabrigar, the amount of TWO THOUSAND FOUR HUNDRED NINETY SIX and 00/00 Pesos (P2,496.00) as Death benefits;
and

2. To pay to the Commission the amount of P25.00 as fees pursuant to Section 55 of Act 3428, as amended.

The above decision is now before Us for Review on a Writ of Certiorari, after the motion for reconsideration had been denied, petitioner
alleging that the Commission erred:

1. In disregarding completely the evidentiary value of the death certificate of the attending physician which was presented as
evidence by both claimants and respondent (Exhibits C & 4) to prove the cause of death;

2. In finding that the cause of death of said Santiago Fabrigar was tuberculosis and was contracted during and as a result of the
nature of his employment;

3. In holding that the herein petitioner was the employer of the deceased Santiago Fabrigar; and

4. In not holding that the herein petitioner is exempt from the scope of the Workmen's Compensation Law.lawphil.net

Petitioner contends that the preponderance of evidence on the matters involved in this case, militates in its favor. Considering the
doctrine that the Commission, like the Court of Industrial Relations, is bound not by the rule of preponderance of evidence as in
ordinary civil cases, but by the rule of substantial evidence (Ang Tibay vs. CIR, 69 Phil. 635; Phil. Newspaper Guild vs. Evening News,
47 Off. Gaz. No. 12, p. 6188; Secs. 43 & 46 Rep. Act No. 772, W.C. Act), petitioner's pretension is without merit. Substantial evidence
supports the decision of the Commission. While seemingly there exists an inconsistency in the cause of death, as appearing in the
death certificate by Dr. Labitoria and in Dr. Villareal's diagnosis, it is a fact found by the Commission, that the Sanitary Inspector did not
examine the deceased before and after his death. "Undoubtedly," says the Commission, "the information that he died of beriberi adult,
as appearing in the death certificate was given because it appears that the deceased had also edema of the extremities (swollen legs)."
The evidence of record sustains the following findings of the Commission, is Fabrigar's cause of death to wit —

The short period of time intervening between his last day of work (March 13, 1956) when he spat blood and his death June 28, 1956
due to pulmonary tuberculosis indicates that he had been suffering from the disease even during the time that he was employed by the
respondent. Considering the strenuous work that he performed while in the service of the respondents and the unusually long hours of
work he rendered (6:00 p.m. to 1:30 p.m. and from 2:00 p.m. to 6:00 p.m. or 7:00 p.m.) beyond the normal and legal working hours, we
find that his employment aggravated his pre-existing illness and brought about his death. Moreover, our conclusion finds support in the
fact that immediately preceding his last day of work with the respondent, he had an unusually hard day lifting desks and other furnitures
and assisting in the preparations for the graduation exercises of the school. Considering also his complaints during that day (March 11),
among which was "shortness of breath", we may also say that his work affected an already existing heart ailment.

We find no plausible reason for altering or disturbing the above factual findings of the Commission, in the present appeal by certiorari.

It is claimed that actually the deceased was not an employee of the petitioner, but by the Iloilo Chinese Chamber of Commerce which
was the one that furnished the janitor service in the premises of its buildings, including the part thereof occupied by the petitioner; that
the Chamber of Commerce paid the salaries of janitors, including the deceased; that the petitioner could not afford to pay rentals of its
premises and janitor due to limited finances depended largely on funds raised among its Board of Directors, the Chinese Chamber of
Commerce and Chinese nationals who helped the school. In other words, it is pretended that the deceased was not an employee of the
school but of the Chinese Chamber of Commerce which should be the one responsible for the compensation of the deceased. On one
hand, according to the Commission, there is substantial proof to the effect that Fabrigar was employed by and rendered service for the
petitioner and was an employee within the purview of the Workmen's Compensation Law. On the other hand, the most important test of
employer-employee relation is the power to control the employee's conduct. The records disclose that the person in charge (encargado)
of the respondent school supervised the deceased in his work and had control over the manner he performed the same.

It is finally contended that petitioner is an institution devoted solely for learning and is not an industry within the meaning of the
Workmen's Compensation Law. Consequently, it is argued, it is exempt from the scope of the same law. Considering that this factual
question has not been properly put in issue before the Commission, it may not now be entertained in this appeal for the first time
(Atlantic Gulf, etc. vs. CIR, et al., L-16992, Dec. 23, 1961, citing International Oil Factory Union v. Hon. Martinez, et al., L-15560, Dec.
31, 1960). The decision of the Commission does not show that the matter was taken up. We are at a loss to state whether the issue
was raised in the motion for reconsideration filed with the Commission, because the said motion is not found in the record before us.
And the resolution to the motion for reconsideration does not touch this question.

IN VIEW HEREOF, the appeal interposed by the petitioner is dismissed, and the decision appealed from is affirmed, with costs against
the herein petitioner.

Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Dizon and De Leon, JJ., concur.
Padilla, J., took no part.
G.R. No. L-32245 May 25, 1979
DY KEH BENG, petitioner, 
vs.
INTERNATIONAL LABOR and MARINE UNION OF THE PHILIPPINES, ET AL., respondents.

A. M Sikat for petitioner.

D. A. Hernandez for respondents. 

DE CASTRO, J.:

Petitioner Dy Keh Beng seeks a review by certiorari of the decision of the Court of Industrial Relations dated March 23, 1970 in Case
No. 3019-ULP and the Court's Resolution en banc of June 10, 1970 affirming said decision. The Court of Industrial Relations in that
case found Dy Keh Beng guilty of the unfair labor practice acts alleged and order him to
reinstate Carlos Solano and Ricardo Tudla to their former jobs with backwages from their respective dates of
dismissal until fully reinstated without loss to their right of seniority and of such other rights already acquired by them
and/or allowed by law. 1
Now, Dy Keh Beng assigns the following errors 2 as having been committed by the Court of Industrial Relations:
I
RESPONDENT COURT ERRED IN FINDING THAT RESPONDENTS SOLANO AND TUDLA WERE EMPLOYEES
OF PETITIONERS.
II
RESPONDENT COURT ERRED IN FINDING THAT RESPONDENTS SOLANO AND TUDLA WERE DISMISSED
FROM THEIR EMPLOYMENT BY PETITIONER.
III
RESPONDENT COURT ERRED IN FINDING THAT THE TESTIMONIES ADDUCED BY COMPLAINANT ARE
CONVINCING AND DISCLOSES (SIC) A PATTERN OF DISCRIMINATION BY THE PETITIONER HEREIN.
IV
RESPONDENT COURT ERRED IN DECLARING PETITIONER GUILTY OF UNFAIR LABOR PRACTICE ACTS AS
ALLEGED AND DESCRIBED IN THE COMPLAINT.
V
RESPONDENT COURT ERRED IN PETITIONER TO REINSTATE RESPONDENTS TO THEIR FORMER JOBS
WITH BACKWAGES FROM THEIR RESPECTIVE DATES OF DISMISSALS UNTIL FINALLY REINSTATED
WITHOUT LOSS TO THEIR RIGHT OF SENIORITY AND OF SUCH OTHER RIGHTS ALREADY ACQUIRED BY
THEM AND/OR ALLOWED BY LAW.
The facts as found by the Hearing Examiner are as follows:
A charge of unfair labor practice was filed against Dy Keh Beng, proprietor of a basket factory, for discriminatory acts within the
meaning of Section 4(a), sub-paragraph (1) and (4). Republic Act No. 875, 3 by dismissing on September 28 and 29, 1960, respectively,
Carlos N. Solano and Ricardo Tudla for their union activities. After preliminary investigation was conducted, a case was filed in the
Court of Industrial Relations for in behalf of the International Labor and Marine Union of the Philippines and two of its members, Solano
and Tudla In his answer, Dy Keh Beng contended that he did not know Tudla and that Solano was not his employee because the latter
came to the establishment only when there was work which he did on pakiaw  basis, each piece of work being done under a separate
contract. Moreover, Dy Keh Beng countered with a special defense of simple extortion committed by the head of the labor union,
Bienvenido Onayan.
After trial, the Hearing Examiner prepared a report which was subsequently adopted in toto by the Court of Industrial Relations. An
employee-employer relationship was found to have existed between Dy Keh Beng and complainants Tudla and Solano, although
Solano was admitted to have worked on piece basis. 4 The issue therefore centered on whether there existed an employee employer
relation between petitioner Dy Keh Beng and the respondents Solano and Tudla .
According to the Hearing Examiner, the evidence for the complainant Union tended to show that Solano and Tudla became employees
of Dy Keh Beng from May 2, 1953 and July 15, 1955, 5 respectively, and that except in the event of illness, their work with the
establishment was continuous although their services were compensated on piece basis. Evidence likewise showed that at times the
establishment had eight (8) workers and never less than five (5); including the complainants, and that complainants used to receive ?
5.00 a day. sometimes less. 6
According to Dy Keh Beng, however, Solano was not his employee for the following reasons:
(1) Solano never stayed long enought at Dy's establishment;
(2) Solano had to leave as soon as he was through with the
(3) order given him by Dy;
(4) When there were no orders needing his services there was nothing for him to do;
(5) When orders came to the shop that his regular workers could not fill it was then that Dy went to his address in
Caloocan and fetched him for these orders; and
(6) Solano's work with Dy's establishment was not continuous. , 7
According to petitioner, these facts show that respondents Solano and Tudla are only piece workers, not employees under Republic Act
875, where an employee 8 is referred to as
shall include any employee and shag not be limited to the employee of a particular employer unless the Act explicitly
states otherwise and shall include any individual whose work has ceased as a consequence of, or in connection with
any current labor dispute or because of any unfair labor practice and who has not obtained any other substantially
equivalent and regular employment.
while an employer 9
 includes any person acting in the interest of an employer, directly or indirectly but shall not include any labor
organization (otherwise than when acting as an employer) or anyone acting in the capacity of officer or agent of such
labor organization.
Petitioner really anchors his contention of the non-existence of employee-employer relationship on the control test. He points to the
case of Madrigal Shipping Co., Inc. v. Nieves Baens del Rosario, et al., L-13130, October 31, 1959, where the Court ruled that:
The test ... of the existence of employee and employer relationship is whether there is an understanding between the
parties that one is to render personal services to or for the benefit of the other and recognition by them of the right of
one to order and control the other in the performance of the work and to direct the manner and method of its
performance.
Petitioner contends that the private respondents "did not meet the control test in the fight of the ... definition of the terms employer and
employee, because there was no evidence to show that petitioner had the right to direct the manner and method of respondent's
work. 10 Moreover, it is argued that petitioner's evidence showed that "Solano worked on a pakiaw basis" and that he stayed in the
establishment only when there was work.
While this Court upholds the control test 11 under which an employer-employee relationship exists "where the person for whom the
services are performed reserves a right to control not only the end to be achieved but also the means to be used in reaching such end,
" it finds no merit with petitioner's arguments as stated above. It should be borne in mind that the control test calls merely for the
existence of the right to control the manner of doing the work, not the actual exercise of the right. 12 Considering the finding by the
Hearing Examiner that the establishment of Dy Keh Beng is "engaged in the manufacture of baskets known as kaing, 13 it is natural to
expect that those working under Dy would have to observe, among others, Dy's requirements of size and quality of the kaing. Some
control would necessarily be exercised by Dy as the making of the kaing would be subject to Dy's specifications. Parenthetically, since
the work on the baskets is done at Dy's establishments, it can be inferred that the proprietor Dy could easily exercise control on the
men he employed.
As to the contention that Solano was not an employee because he worked on piece basis, this Court agrees with the Hearing Examiner
that
circumstances must be construed to determine indeed if payment by the piece is just a method of compensation and
does not define the essence of the relation. Units of time ... and units of work are in establishments like respondent
(sic) just yardsticks whereby to determine rate of compensation, to be applied whenever agreed upon. We cannot
construe payment by the piece where work is done in such an establishment so as to put the worker completely at
liberty to turn him out and take in another at pleasure.
At this juncture, it is worthy to note that Justice Perfecto, concurring with Chief Justice Ricardo Paras who penned the decision in
"Sunrise Coconut Products Co. v. Court of Industrial Relations" (83 Phil..518, 523), opined that
judicial notice of the fact that the so-called "pakyaw" system mentioned in this case as generally practiced in our
country, is, in fact, a labor contract -between employers and employees, between capitalists and laborers.
Insofar as the other assignments of errors are concerned, there is no showing that the Court of Industrial Relations abused its discretion
when it concluded that the findings of fact made by the Hearing Examiner were supported by evidence on the record. Section 6,
Republic Act 875 provides that in unfair labor practice cases, the factual findings of the Court of Industrial Relations are conclusive on
the Supreme Court, if supported by substantial evidence. This provision has been put into effect in a long line of decisions where the
Supreme Court did not reverse the findings of fact of the Court of Industrial Relations when they were supported by substantial
evidence. 14
Nevertheless, considering that about eighteen (18) years have already elapsed from the time the complainants were dismissed, 15 and
that the decision being appealed ordered the payment of backwages to the employees from their respective dates of dismissal until
finally reinstated, it is fitting to apply in this connection the formula for backwages worked out by Justice Claudio Teehankee in "cases
not terminated sooner." 16 The formula cans for fixing the award of backwages without qualification and deduction to three years,
"subject to deduction where there are mitigating circumstances in favor of the employer but subject to increase by way of exemplary
damages where there are aggravating circumstances. 17Considering there are no such circumstances in this case, there is no reason
why the Court should not apply the abovementioned formula in this instance.
WHEREFORE; the award of backwages granted by the Court of Industrial Relations is herein modified to an award of backwages for
three years without qualification and deduction at the respective rates of compensation the employees concerned were receiving at the
time of dismissal. The execution of this award is entrusted to the National Labor Relations Commission. Costs against petitioner.
SO ORDERED.
Teehankee, Makasiar, Guerrero, and Melencio-Herrera, JJ., concur.
Fernandez, J., took no part.
G.R. No. L-64048 August 29, 1986
PETROPHIL CORPORATION, petitioner, 
vs.
NATIONAL LABOR RELATIONS COMMISSION, ANSELMO B. ENCARNACION AND GERSHER ENGINEERING
WORKS, respondents.
Linda P. Ilagan for petitioners.
 
PARAS, J.:

The instant petition which seeks the review and reversal of the Decision dated January 25, 1983 of respondent National Labor
Relations Commission in NLRC Case No. 246-LR-XI-77, raises the following questions-
1. Which was the employer of respondent Anselmo B. Encarnacion-petitioner Petrophil Corporation or respondent Gersher Engineering
Works?
2. Was Anselmo B. Encarnacion illegally dismissed? and
3. What benefits, if any was he entitled to and from whom?
Private respondent, Anselmo B. Encarnacion, had been working as a casual employee of various job contractors in Petrophil's
premises since 1963 when the firm was still under the ownership and management of Esso Standard Philippines. On December 21,
1973, Esso Standard Philippines was sold to Petrophil Corporation. At that time, Anselmo B. Encarnacion was working at the bulk plant
as an employee of one Juanito Campos who had a job contract with Esso Standard Philippines. The said job contract was continued by
Petrophil Corporation so respondent Encarnacion remained working at the bulk plant. In March 1976, respondent Gersher Engineering
Works entered into a service contract with Petrophil and thereafter placed respondent Encarnacion in its payroll
Sometime in March 28, 1977, respondent Gersher received a letter from Petrophil Corporation complaining about the unsatisfactory
performance of respondent Encarnacion. As a result, respondent Gersher decided to re-assign Encarnacion to Caltex Phil. Inc. with
whom said respondent Gersher had also a contract. Respondent Encarnacion refused to be reassigned to Caltex unless he was made
to occupy the same position of warehouseman as in Petrophil Corporation and since the position available at Caltex was that of
equipment maintainer, respondent Encarnacion refused to be transferred. Instead he filed a complaint for illegal dismissal against
respondent Gersher and in the alternative, against petitioner Petrophil Corporation, before the Labor Relations Division of the then
Department of Labor.
In a decision dated September 26, 1977, Labor Arbiter Modesto R. Rosales rendered judgment holding that respondent Encarnacion
was the employee of respondent Gersher Engineering Works and not of petitioner Petrophil Corporation; that respondent Encarnacion
was not illegally dismissed; but that he is entitled to receive from respondent Gersher the 13th month pay of P340.00 covering the year
from March 15, 1976 to March 26, 1977 and the emergency monthly living allowance of P100.00 for the same period. The claim for
holiday and vacation leave pay was dismissed for insufficiency of evidence. The judgment further ordered respondent Gersher to
accept respondent Encarnacion back to work to be assigned as helper in any of its contractual jobs (except Petrophil Corporation) with
the same salary and without loss of seniority and other benefits appurtenant to his position. Respondent Encarnacion was also ordered
to report and present himself for work with respondent Gersher within five (5) days from notice, otherwise he would be considered to
have abandoned his work. The case against Petrophil Corporation was dismissed.
Respondent Encarnacion appealed the decision to respondent National Labor Relations Commission Respondent Gersher did not
appeal from the said decision, neither did it file an answer to Encarnacion's appeal.
On January 25, 1985, the National Labor Relations Commission rendered judgment modifying the decision of the Labor Arbiter and
holding that Encarnacion was the employee of Petrophil Corporation and not of respondent Gersher and that he had been illegally
dismissed. The dispositive portion of the decision of the respondent Commission reads-
WHEREFORE, respondent Petrophil is hereby ordered to:
1. Immediately reinstate the complainant in his former position without loss of seniority rights and privileges, with fixed
backwages equivalent to three years, without qualification or deduction; and
2. Pay the complainant emergency cost-of-living allowances and 13th month pay both covering the period
corresponding to backwages.
Hence, the instant petition which We find to be meritorious.
On the first issue raised, We agree with the findings of the Labor Arbiter that respondent Encarnacion was the employee of respondent
Gersher and not petitioner Petrophil Corporation. This fact was admitted by no less than Gersher in its position paper which it filed with
the Labor Relations Division of the then Department of Labor. Thus, in the said position paper, respondent Gersher states—
2. That the complainant started work with respondent Gersher Engineering Work sometime on or about March 15,
1976 but that after March 31, 1977, the complainant left his work with the herein respondent and never came back;
he has not notified the respondent herein that he was no longer reporting for work; that the said respondent herein
only hired the said complainant on March 15, 1976 until the date mentioned above.
3. That sometime on or about March l, 1976 respondent Gersher Engineering Work entered into a contract of
services with respondent Petrophil Corporation, as an independent contractor. ...
4. That after said contract was consummated, the complainant Anselmo Encarnacion commenced work on or
about March 15, 1976 with said respondent with monthly salary of P340.00. ...
The payrolls of respondent Gersher also show that respondent Encarnacion was its employee. For the period from March 15, 1976 and
continuously up to March 31, 1977, respondent Encarnacion was receiving his salary from respondent Gersher. There was never an
instance during this period that Encarnacion received his salary from Petrophil Corporation.
Anent the issues of his alleged illegal dismissal and his entitlement to benefits from his employer, We likewise agree with the decision
of the Labor Arbiter that respondent Encarnacion was not dismissed but was only demoted and transferred to Caltex Phil. Inc. because
of his failure to observe proper diligence in his work, and also because of his indolence, habitual tardiness and absences. But following
his demotion and transfer, Encarnacion refused to report for work anymore. As aptly ruled by the Labor Arbiter this regard-
Anent the issue of illegal dismissal respondent Gersher Engineering Works allege (sic) that Encarnacion was not
separated from the service but was only demoted from the position of helper and transferred to the contract of
respondent Gersher Engineering Works with Caltex Philippines Corporation without reduction in salary due to his
 failure to observe proper diligence in his work, habitual tardiness, habitual absences and indolence in his assigned
work.
Time and again, this Office has sustained the view that it is management prerogative to transfer, demote, discipline
and even to dismiss an employee to protect its business, provided it is not tainted with unfair labor practice.
The record, however, is bereft of any evidence to show that the demotion and transfer of Encarnacion was due to
unfair labor practice acts defined under Article 249 ... (third official edition of the Labor Code of the Philippines, as
amended), hence the act of Gersher Engineering Works in transferring and demoting complainant Encarnacion is
anchored on just and valid grounds. (pp. 19-20, Rollo)
Considering the foregoing, reinstatement of respondent Encarnacion and payment of his money claims should be made by respondent
Gersher Engineering Works, his employer which has evidently accepted the decision of the Labor Arbiter by not appealing therefrom
Petitioner Petrophil Corporation is absolved from any and all liability.
WHEREFORE, the appealed decision dated January 25, 1983 of the National Labor Relations Commission is hereby REVERSED and
SET ASIDE and in lieu thereof, the decision dated September 26, 1977 of Labor Arbiter Modesto Rosales is ordered reinstated. No
pronouncement as to costs.
SO ORDERED.
Feria (Chairman), Fernan, Alampay and Gutierrez, Jr., JJ., concur.
G.R. No. 78711 June 27, 1990
ABOITIZ SHIPPING EMPLOYEES ASSOCIATION, LAZARO ABAIGAR, VICTORIANO ANIBAN, FELIPE BATERZAL, RUFINO
YAGUIT, JONNIE YAGUIT and EUGENIO BALBUENA, petitioners, 
vs.
NATIONAL LABOR RELATIONS COMMISSION and ABOITIZ SHIPPING CORPORATION, respondents.
Rogelio B. De Guzman for petitioners.
Bienvenido A. Salinas, Jr. for private respondent.
 
PARAS, J.:

This is a petition for certiorari to set aside the Resolutions of the public respondent National Labor Relations Commission (NLRC) dated
April 30, 1987 and May 29, 1987 affirming the Decision of August 23, 1985 rendered by Labor Arbiter Julio P. Andres, Jr. holding that:
... respondent Aboitiz Shipping Corporation could not be guilty of said charge (unfair labor practice through dismissal)
for lack of employer-employee relationship between them and the individual complainants at the time said act was
allegedly committed in April 1985. (p. 165, Rollo)
and consequently dismissing the case for lack of merit. Hence, this petition anchored on two grounds:
1. GRAVE ABUSE OF DISCRETION COMMITTED BY THE NATIONAL LABOR RELATIONS COMMISSION
WHICH AMOUNTS TO LACK OF JURISDICTION.
2. THE RESOLUTIONS SOUGHT TO BE REVIEWED ARE NOT IN ACCORD WITH LAW AND APPLICABLE
DECISIONS OF THIS HONORABLE COURT. (p. 2 Comment, p. 166, Rollo)
The real issue however which surfaces from the allegations and arguments of the parties is whether or not an employer-employee
relationship existed between respondent Aboitiz Shipping Corporation (ABOITIZ, for short) and the petitioners-workers at the time of the
latter's alleged dismissal on April 26, 1985.
The six (6) petitioners herein claimed that they were employed as carpenters by respondent corporation until their illegal dismissal on
April 26, 1985. They alleged that they were all allegedly dismissed by Ben Baguio and his spouse on April 26, 1985 just a day after the
inspection made by Efren Bautista of the National Capital Region of the Ministry of Labor and Employment on respondent ABOITIZ in
connection with LSED-4-408-85, a labor case which same complainants filed with the Ministry of Labor and Employment. According to
the complainants, said act of the Baguios constitute unfair labor practice defined under par. (f) of Article 249 of the Labor Code, as
amended, and the resultant dismissal of the individual complainants is illegal as there was allegedly no just cause nor were they duly
afforded due process of law. They thus, pray that the respondent corporation be held liable for unfair labor practice through dismissal,
damages and attorney's fees.
Respondent ABOITIZ denies that the petitioners were their employees at the time of their dismissal but are employees of respondent
Ben Baguio by virtue of a Service Contract dated June 16, 1984. A pertinent portion of which reads as follows:
8. That it is understood and agreed that there is no employer-employee relationship between the FIRST PARTY
(Aboitiz Shipping Corporation) and SECOND PARTY (Narben's Service Contractor) much less any of the latter's
carpenters. The SECOND PARTY shall have the right to hire and fire such employees, exercise general control as to
the time, manner and method of performance of work; that the sole interest of the FIRST PARTY is that all its
properties, cargoes, equipments and other appurtenances be safe and protected from destruction, pilferage, damage
and other losses as envisioned in paragraph 9. The SECOND PARTY shall hold free from any liability the FIRST
PARTY from any claim of whatsoever nature which the carpenters of the SECOND PARTY may institute either
against the FIRST PARTY and SECOND PARTY. (pp. 3-4, NLRC Resolution; pp. 3-4, Rollo)
On their part, spouses Ben and Leonarda Baguio aver that they are the proprietors of Narben's Service Contractor engaged in
contracting carpentry jobs and has a service contract with respondent Aboitiz Shipping Corporation. Spouses Baguio admit that the
petitioners were indeed their employees whose duties were to do carpentry work, subject to the condition that the moment their works
were finished, their employment would end, and that they would be re-hired once respondent ABOITIZ would enter into another
contract. Petitioners submit the following pieces of evidence in support of the presence of employer-employee relationship with
respondent Aboitiz, viz:
(1) Social Security Numbers:
03-173171-0 — Lazaro Abaigar;
06-112277-9 — Felipe Baterzal; 
03-634457-0 — Rufino Yaguit;
03-77089084 — Jonnie Yaguit; 
07-4915-8 — Eugenio Balbuena; and
03-78050193 — Victoriano Aniban
(2) Deduction for Social Security Premitims from their salaries;
(3) Company Identification Cards issued to petitioners, examples of which are Annexes "B", "B-1" and "B-2", of
Petition;
(4) Withholding of taxes as evidenced by BIR Form W-2 Annexes "C" to "C-5", of Petition; and
(5) Time Cards and normal conduct of employer-employee relations enumerated in the above Statement of Facts.
(Memorandum of Petitioners, p. 212, Rollo)
They therefore pray that the resolutions of public respondent be set aside; that this Court declare the illegality of dismissal of individual
petitioners; and that their reinstatement with full backwages to private respondent as regular employees thereof be granted.
In the resolution of April 18, 1988, this Court gave due course to the petition and required the parties to file their simultaneous
memoranda within thirty (30) days from notice.
Records reveal that petitioners are not regular employees of the private respondent at the time of their alleged illegal dismissal. For
one, petitioners, on June 20, 1984, filed individual application for employment with Narben's Service Contractor. They were eventually
issued payslips, deducted SSS premiums, Pag-ibig fund and withholding tax from their salaries by this Contractor.
As held in Mafinco Trading Corporation vs. Ople, 70 SCRA 139 (1976), the existence of employer-employee relationship is determined
by four (4) elements, namely: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal;
and (4) the power to control employees' conduct. From a reading of the provisions of the aforesaid service contract, the concurrence of
these four elements on NARBEN's will easily be noted. For NARBEN's had the right to hire the necessary number of carpenters to
accomplish the carpentry requirements of respondent corporation and to fire them. It had charge of the payment of wages of its laborers
and the power of administrative supervision and general control as to the time, manner and method of performance of work.
All the above evidences constitute positive proofs that the petitioners-workers were, at the time in question, in the employ of NARBEN's
and not anymore of respondent Corporation. Respondent NLRC, therefore, did not err in refusing to give weight to petitioners'
uncorroborated claim that they were continuously employees of Aboitiz Shipping Corporation.
With regard to the issuance of Id's to petitioners by private respondent, it appears that these Id's were special Id's and is different from
those issued to its regular employees. On these special Identification cards, the following words are written: THIS IS TO CERTIFY
THAT THE BEARER WHOSE PICTURE APPEAR ON THIS CARD IS AUTHORIZED TO HAUL, OPERATE, AND
TRANSACT BUSINESS WITH ABOITIZ SHIPPING CORPORATION. On the other hand, appearing on the regular or probationary
employee's Id cards are the following words: "THIS IS TO CERTIFY THAT THE BEARER WHOSE PICTURE AND PERSONAL DATA
APPEAR ON THIS CARD IS AN EMPLOYEE OF ABOITIZ SHIPPING CORPORATION." (pp. 109-110, Rollo)
Besides, the issue of the existence of employer-employee relationship between the parties in the case at bar is a question of fact which
has already been resolved by the labor arbiter and upheld by the National Labor Relations Commission. Review of labor cases are
confined to questions of jurisdiction or grave abuse of discretion. We find that no grave abuse of discretion W-as committed by public
respondent NLRC in affirming the non-existence of employer-employee relationship between petitioners and private respondent.
PREMISES CONSIDERED, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.
Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.
G.R. No. 121327            December 20, 2001
CECILIO P. DE LOS SANTOS and BUKLOD MANGGAGAWA NG CAMARA (BUMACA), petitioners, 
vs.
NATIONAL LABOR RELATIONS COMMISSION (SECOND DIVISION), HON. COMMISSIONERS VICTORIANO R. CALAYCAY,
RAUL T. AQUINO, and ROGELIO I. RAYALA, CAMARA STEEL INDUSTRIES INC., JOSELITO JACINTO, ALBERTO F. DEL
PILAR, DENNIS ALBANO, MERCEDITA G. PASTRANA, TOP-FLITE and RAUL RUIZ, respondents.

BELLOSILLO, J.:

This is a petition for certiorari under Rule 65 assailing the Decision of public respondent National Labor Relations Commission (NLRC)
which remanded this case to the Labor Arbiter who ruled that petitioner Cecilio P. de los Santos was illegally dismissed by private
respondent Camara Steel, Inc., and as a consequence, ordered his immediate reinstatement. Specifically, the dispositive portion of the
Labor Arbiter's Decision promulgated 23 May 1999 states —
WHEREFORE, premises considered, respondent Camara Steel Industries, Inc. is hereby ordered to reinstate complainant
Cecilio de los Santos to his former position within ten (10) days from receipt of this Resolution without loss of seniority rights
and other benefits with full back wages from date of dismissal up to actual date of reinstatement which is hereby computed as
of even date as follows:
From 8/23/93-12/15/93 = 3.73 mos.
P118 x 26 days x 3.73 mos. = P11,443.64
12/16/93 - 3/29/94 = 3.43 mos.
135 x 26 days x 3.43 mos. =    12,039.30
Total Backwages as of 3/29/94 P23,482.94
Respondent Camara Steel Industries, Inc. is also ordered to pay complainant 10% for and as attorney's fees.
All other claims are hereby dismissed for lack of merit.
On 3 May 1991 petitioner De los Santos started working at Camara Steel Industries Inc. (CAMARA STEEL), a company engaged in the
manufacture of steel products such as LPG cylinders and drums. He was first assigned at the LPG assembly line, then later, as
operator of a blasting machine. While performing his task as such operator, he met an accident that forced him to go on leave for one
and a half (1-1/2) months. Upon his return, he was designated as a janitor assigned to clean the premises of the company, and
occasionally, to transfer scrap and garbage from one site to another.1
On 11 May 1993 petitioner was doing his usual chores as a janitor of CAMARA STEEL when he momentarily left his pushcart to
answer the call of Narciso Honrado, scrap in-charge, who summoned him to the company clinic. There Honrado handed him a box
which he placed on top of a drum in his pushcart for transfer to the other lot of the company near gate 2. On his way out of gate 2,
however, the security guard on duty found in the box handed to him by Honrado two (2) pieces of electric cable measuring 2.26 inches
each and another piece of 1.76 meters with a total estimated value of P50.00 to P100.00. Apprehensive that he might be charged with
theft, petitioner De los Santos explained that the electric cord was declared a scrap by Honrado whose instructions he was only
following to transfer the same to the adjacent lot of the company as scrap.
Narciso Honrado admitted responsibility for the haul and his error in declaring the electric cables as scrap. The general manager,
apparently appeased by Honrado's apology, issued a memorandum acknowledging receipt of his letter of apology and exculpated him
of any wrongdoing.
Taking an unexpected volte face, however, the company through its counsel filed on 9 July 1993 a criminal complaint for frustrated
qualified theft against Honrado and herein petitioner De los Santos. The complaint however was subsequently dismissed by the
Provincial Prosecutor of Pasig for lack of evidence.2
On 23 August 1993, upon request of Top-Flite, alleged manpower agency of De los Santos, CAMARA STEEL terminated his services.
Aggrieved by his illegal termination, De los Santos sought recourse with the Labor Arbiter who on 29 March 1994 rendered a decision
ordering respondent CAMARA STEEL to reinstate Delos Santos to his former position within ten (10) days without loss of seniority
rights and other benefits with full back wages from date of dismissal up to actual reinstatement as herein before stated.
CAMARA STEEL went to the NLRC for recourse. Top-Flite filed a Motion for Intervention praying that it be permitted to intervene in the
appeal as co-respondent and, accordingly, be allowed to submit its own memorandum and other pleadings.3
On 23 May 1995 the NLRC reversed the Labor Arbiter and ordered the return of the entire records of the case to the arbitration branch
of origin for further proceedings. In its Decision, NLRC specified the reasons for the remand to the Labor Arbiter —4
First, as respondents have broadly implied, having alleged that he was an employee of Camara Steel, it was complainant's
burden to prove this allegation as a fact, not merely through his uncorroborated statements but through independent evidence.
As noted by respondents, he has not submitted one piece of evidence to support his premise on this matter except for his
sworn statement.
Secondly, the Arbiter maintained that the contract of services submitted by respondents was insufficient to prove that
complainant was an employee of Top-Flite, but he has obviously omitted consideration of Annexes F, G, H and I which are
time sheets of the complainant with Top-Flite and the corresponding time cards which he punches in for Camara Steel.
The NLRC further noted that under the circumstances it became appropriate to conduct a formal hearing on the particular issue of
whether an employer-employee relationship existed between the parties, which issue was determinative of the nature of petitioner's
dismissal by CAMARA STEEL. That being so, according to the NLRC, it was necessary for the Labor Arbiter to issue the appropriate
directive to summon Top-Flite as a necessary party to the case, for the manpower agency to submit its own evidence on the actual
status of petitioner.
As pointed out by petitioner, the errors in the disputed decision by the NLRC are: (a) NLRC violated due process of law when it did not
consider the evidence on record; (b) CAMARA STEEL, and not Top-Flite, is the real employer of petitioner; (c) Contrary to the finding of
NLRC, Top-Flite was made a party respondent in the illegal dismissal case docketed as NLRC-NCR No. 00-08-05302-93 and the
NLRC was therefore in error in remanding the case to the Labor Arbiter for further proceedings.
Petitioner De los Santos contends that NLRC was in grave error when it ruled that, with the exception of a bare assertion on his sworn
statement, he "has not submitted one piece of evidence to support his premise"5 that he was in fact an employee of CAMARA STEEL.
To underscore NLRC's oversight, petitioner brings to our attention and specifies the pieces of evidence which he presented before the
Labor Arbiter on 19 November 1993 — also appended as Annexes to petitioner's "Traverse to Camara's Position Paper and Reply:" (a)
Annex "E" to "E-1" — Approval signature of Camara's Department head, Reynaldo Narisma, without which petitioner cannot render
overtime; (b) Annex "F" — Petitioner's daily time record for 8/3/92 to 8/9/92; (c) Annex "F-1" — Signature of private respondent
Mercedita Pastrana, approving in her capacity as Assistant Manager of Camara Steel; (d) Annex "F-2" — Signature of private
respondent Dennis Albano, Personnel Manager of Camara Steel Industries Inc. also co-signing for approval; (e) Annex "F-3" —
Signature of Narisma, as Department Head of Camara Steel Industries Inc. where petitioner is working; (f) Annex "G" — Daily Time
Record of petitioner for 7/6/92 to 7/12/92; (g) Annex "G-1" — Signature of Camara Steel Assistant Manager; (h) Annex "G-2" —
Signature of Camara's Personnel Manager, Dennis Albano, approving; (i) Annex "G-3" — Signature of Camara's Department Head
where petitioner is working, Mr. Narisma, approving; (j) Annex "H" to "H-1" — Petitioner's Daily Time Card (representative samples)
with name and logo of Camara Steel Industries Inc.; and, (k) Annex "J" — Affidavit of Complainant.
All these pieces of evidence which, according to petitioner De los Santos, were not properly considered by NLRC, plainly and clearly
show that the power of control and supervision over him was exercised solely and exclusively by the managers and supervisors of
CAMARA STEEL. Even the power to dismiss was also lodged with CAMARA STEEL when it admitted in page 3 of its Reply that upon
request by Top-Flite, the steel company terminated his employment after being allegedly caught committing theft.
Petitioner De los Santos also advances the view that Top-Flite, far from being his employer, was in fact a "labor-only" contractor as
borne out by a contract whereby Top-Flite undertook to supply CAMARA STEEL workers with "warm bodies" for its factory needs and
edifices. He insists that such contract was not a job contract but the supply of labor only. All things considered, he is of the firm belief
that for all legal intents and purposes, he was an employee — a regular one at that — of CAMARA STEEL.
In its comment, private respondent CAMARA STEEL avers that far from being its employee, De los Santos was merely a project
employee of Top-Flite who was assigned as janitor in private respondent company. This much was acknowledged by Top-Flite in
its Motion for Intervention filed before the NLRC.6 Such allegation, according to private respondent CAMARA STEEL, supports all along
its theory that De los Santos' assignment to the latter as janitor was based on an independent contract executed between Top-Flite and
CAMARA STEEL.7
Respondent CAMARA STEEL further argues that crystal clear in the Motion for Intervention of Top-Flite is its allegation that it was in
fact petitioner's real employer as his salaries and benefits during the contractual period were paid by Top-Flite; not only that, De los
Santos was dismissed by CAMARA STEEL upon the recommendation of Top-Flite. These ineluctably show that Top-Flite was not only
a job contractor but was in truth and in fact the employer of petitioner.
In his petition, De los Santos vigorously insists that he was the employee of respondent CAMARA STEEL which in turn was not only
denying the allegation but was finger-pointing Top-Flite as petitioner's real employer. De los Santos again objects to this assertion and
claims that Top-Flite, far from being an employer, was merely a "labor-only" contractor.
In the maze and flurry of claims and counterclaims, several contentious issues continue to stick out like a sore thumb. Was De los
Santos illegally dismissed? If so, by whom? Was his employer respondent CAMARA STEEL, in whose premises he was allegedly
caught stealing, or was it Top-Flite, the manpower services which allegedly hired him?
Inextricably intertwined in the resolution of these issues is the determination of whether there existed an employer-employee
relationship between CAMARA STEEL and respondent De Los Santos, and whether Top-Flite was an "independent contractor" or a
"labor-only" contractor. A finding that Top-Flite was a "labor-only" contractor reduces it to a mere agent of CAMARA STEEL which by
statute would be responsible to the employees of the "labor-only" contractor as if such employees had been directly employed by the
employer.
Etched in an unending stream of cases are the four (4) standards in determining the existence of an employer-employee relationship,
namely: (a) the manner of selection and engagement of the putative employee; (b) the mode of payment of wages; (c) the presence or
absence of power of dismissal; and, (d) the presence or absence of control of the putative employee's conduct. Most determinative
among these factors is the so-called "control test."
As shown by the evidence on record, De los Santos was hired by CAMARA STEEL after undergoing an interview with one Carlos
Suizo, its timekeeper who worked under the direct supervision of one Renato Pacion, a supervisor of CAMARA STEEL. These
allegations are contained in the affidavit8 executed by De los Santos and were never disputed by CAMARA STEEL. Also remaining
uncontroverted are the pieces of documentary evidence adduced by De los Santos consisting of daily time records marked Annexes "F"
and "G" which, although bearing the heading and logo of Top-Flite, were signed by officers of respondent CAMARA STEEL, and
Annexes "H" and "I" with the heading and logo of CAMARA STEEL.
Incidentally, we do not agree with NLRC's submission that the daily time records serve no other purpose than to establish merely the
presence of De los Santos within the premises of CAMARA STEEL. Contrarily, these records, which were signed by the company's
officers, prove that the company exercised the power of control and supervision over its employees, particularly De los Santos. There is
dearth of proof to show that Top-Flite was the real employer of De los Santos other than a naked and unsubstantiated denial by
CAMARA STEEL that it has no power of control over De los Santos. Records would attest that even the power to dismiss was vested
with CAMARA STEEL which admitted in its Reply that "Top-Flite requested CAMARA STEEL to terminate his employment after he was
caught by the security guard committing theft."
A cursory reading of the above declaration will confirm the fact that the dismissal of De los Santos could only be effected by CAMARA
STEEL and not by Top-Flite as the latter could only "request" for De los Santos' dismissal. If Top-Flite was truly the employer of De los
Santos, it would not be asking permission from or "requesting" respondent CAMARA STEEL to dismiss De los Santos considering that
it could very well dismiss him without CAMARA STEEL's assent.
All the foregoing considerations affirm by more than substantial evidence the existence of an employer-employee relationship between
De los Santos and CAMARA STEEL.
As to whether petitioner De los Santos was illegally terminated from his employment, we are in full agreement with the Labor Arbiter's
finding that he was illegally dismissed. As correctly observed by the Labor Arbiter, it was Narciso Honrado, scrap in-charge, who
handed the box containing the electrical cables to De los Santos. No shred of evidence can show that De los Santos was aware of its
contents, or if ever, that he conspired with Honrado in bilking the company of its property. What is certain however is that while Honrado
admitted, in a letter of apology, his culpability for the unfortunate incident and was unconditionally forgiven by the company, De los
Santos was not only unceremoniously dismissed from service but was charged before the court for qualified theft (later dismissed by
the public prosecutor for lack of evidence). For sure, De los Santos cannot be held more guilty than Honrado who, being the scrap in-
charge, had the power to classify the cables concerned as scrap.
Neither can we gratify CAMARA STEEL's contention that petitioner was validly dismissed for loss of trust and confidence. As provided
for in the Labor Code:
Art. 282. Termination by employment — An employer may terminate an employment for any of the following causes: x x x (c)
Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative x x x x
Of course, it must be stressed that loss of confidence as a just cause for the termination of employment is based on the premise that
the employee holds a position of trust and confidence, as when he is entrusted with responsibility involving delicate matters, and the
task of a janitor does not fall squarely under this category.
Petitioner De los Santos argues that Top-Flite was merely a "labor-only" contractor. To fortify his stance, De los Santos brings to our
attention the contract of service9 dated 8 February 1991 between CAMARA STEEL and Top-Flite which provides:
1) The contractor (Top-Flite) shall provide workers (non-skilled) six (6) days a week for the Client's (Camara) factory and
edifices.
However, both respondent CAMARA STEEL and Top-Flite10 are adamant in their belief that the latter was not a "labor-only" contractor
as they rely on another provision of the contract which states —
2) The Contractor warrants the honesty, reliability, industry and cooperative disposition of the person it employs to perform the
job subject to this contract, and shall employ such persons only as are in possession of health certificates and police
clearances x x x
The preceding provisions do not give a clear and categorical answer as regards the real character of Top-Flite's business. For whatever
its worth, the invocation of the contract of service is a tacit admission by both parties that the employment of De los Santos was by
virtue of such contract. Be that as it may, Top-Flite, much less CAMARA STEEL, cannot dictate, by the mere expedient of a unilateral
declaration in a contract, the character of its business, i.e., whether as "labor-only" contractor, or job contractor, it being crucial that its
character be measured in terms of and determined by the criteria set by statute. The case of Tiu v. NLRC11 succinctly enunciates this
statutory criteria —
Job contracting is permissible only if the following conditions are met: 1) the contractor carries on an independent business
and undertakes the contract work on his own account under his own responsibility according to his own manner and method,
free from the control and direction of his employer or principal in all matters connected with the performance of the work
except as to the results thereof; and 2) the contractor has substantial capital or investment in the form of tools, equipment,
machineries, work premises, and other materials which are necessary in the conduct of the business.
"Labor-only contracting" as defined in Sec. 4, par. (f), Rule VIII-A, Book III, of the Omnibus Rules Implementing the Labor Code states
that a "labor-only" contractor, prohibited under this Rule, is an arrangement where the contractor or subcontractor merely recruits,
supplies or places workers to perform a job, work or service for a principal and the following elements are present: (a) The contractor or
subcontractor does not have substantial capital or investment to actually perform the job, work or service under its own account or
responsibility; and, (b) The employees recruited, supplied or placed by such contractor or subcontractor are performing activities which
are directly related to the main business of the principal.
Applying the foregoing provisions, the Court finds Top-Flite to be a "labor-only" contractor, a mere supplier of labor to CAMARA STEEL,
the real employer. Other than its open declaration that it is an independent contractor, no substantial evidence was adduced by Top-
Flite to back up its claim. Its revelation that it provided a sweeper to petitioner would not suffice to convince this Court that it possesses
adequate capitalization to undertake an independent business.12 Neither will the submission prosper that De los Santos did not perform
a task directly related to the principal business of respondent CAMARA STELL. As early as in Guarin v. NLRC13 we ruled that "the jobs
assigned to the petitioners as mechanics, janitors, gardeners, firemen and grasscutters were directly related to the business of Novelty
as a garment manufacturer," reasoning that "for the work of gardeners in maintaining clean and well-kept grounds around the factory,
mechanics to keep the machines functioning properly, and firemen to look out for fires, are directly related to the daily operations of a
garment factory."
In its comment respondent CAMARA STEEL emphatically argues that Top-Flite, although impleaded as respondent in NLRC-NCR
Cases Nos. 00-0704761-93 and 00-0805061-93, subject of the present appeal, was never summoned for which reason it was deprived
of procedural due process; basically the same line of argument adopted by the NLRC in its decision to remand the case to the
arbitration branch of origin. CAMARA STEEL obviously wants to impress upon us that Top-flite, being a necessary party, should have
been summoned and the failure to do so would justify the remand of the case to the Labor Arbiter.
We are not persuaded. The records show that Top-Flite was not only impleaded in the aforementioned case but was in fact afforded an
opportunity to be heard when it submitted a position paper. This much was admitted by Top-Flite in par. 5 of its Motion for Intervention
where it stated that "movant submitted its position paper in the cases mentioned in the preceding paragraph but the Presiding Arbiter
ignored the clear and legal basis of the position of the movant."14 In other words, the failure of Top-Flite to receive summons was not a
fatal procedural flaw because it was never deprived of the opportunity to ventilate its side and challenge petitioner in its position paper,
not to mention the comment which it submitted through counsel before this Court.15 It moved to intervene not because it had no notice
of the proceedings but because its position paper allegedly was not considered by the Labor Arbiter. While jurisdiction over the person
of the defendant can be acquired by service of summons, it can also be acquired by voluntary appearance before the court which
includes submission of pleadings in compliance with the order of the court or tribunal. A fortiori, administrative tribunals exercising
quasi-judicial powers are unfettered by the rigidity of certain procedural requirements subject to the observance of fundamental and
essential requirements of due process in justiciable cases presented before them. In labor cases, a punctilious adherence to stringent
technical rules may be relaxed in the interest of the workingman. A remand of the case, as the NLRC envisions, would compel
petitioner, a lowly worker, to tread once again the calvary of a protracted litigation and flagellate him into submission with the lash of
technicality.
WHEREFORE, the petition is GRANTED and the appealed Decision of the NLRC is REVERSED and SET ASIDE and the Decision of
the Labor Arbiter promulgated 23 May 1999 is REINSTATED and ADOPTED as the Decision in this case.
SO ORDERED.
Mendoza, Quisumbing and De Leon, Jr., JJ ., concur.
Buena, J ., on official business
G.R. No. 121948 October 8, 2001
PERPETUAL HELP CREDIT COOPERATIVE, INC., petitioner,
vs.
BENEDICTO FABURADA, SISINITA VILLAR, IMELDA TAMAYO, HAROLD CATIPAY, and the NATIONAL LABOR RELATIONS
COMMISSION, Fourth Division, Cebu City, respondents.

SANDOVAL-GUTIERREZ, J.:

On January 3, 1990, Benedicto Faburada, Sisinita Vilar, Imelda Tamayo and Harold Catipay, private respondents, filed a complaint
against the Perpetual Help Credit Cooperative, Inc. (PHCCI), petitioner, with the Arbitration Branch, Department of Labor and
Employment (DOLE), Dumaguete City, for illegal dismissal, premium pay on holidays and rest days, separation pay, wage differential,
moral damages, and attorney's fees.

Forthwith, petitioner PHCCI filed a motion to dismiss the complaint on the ground that there is no employer-employee relationship
between them as private respondents are all members and co-owners of the cooperative. Furthermore, private respondents have not
exhausted the remedies provided in the cooperative by-laws.

On September 3, 1990, petitioner filed a supplemental motion to dismiss alleging that Article 121 of R.A. No. 6939, otherwise known as
the Cooperative Development Authority Law which took effect on March 26, 1990, requires conciliation or mediation within the
cooperative before a resort to judicial proceeding.

On the same date, the Labor Arbiter denied petitioner's motion to dismiss, holding that the case is impressed with employer-employee
relationship and that the law on cooperatives is subservient to the Labor Code.

On November 23, 1993, the Labor Arbiter rendered a decision, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered declaring complainants illegally dismissed, thus respondent is
directed to pay Complainants backwages computed from the time they were illegally dismissed up to the actual reinstatement but
subject to the three year backwages rule, separation pay for one month for every year of service since reinstatement is evidently not
feasible anymore, to pay complainants 13th month pay, wage differentials and Ten Percent (10%) attorney's fees from the aggregate
monetary award. However, complainant Benedicto Faburada shall only be awarded what are due him in proportion to the nine and a
half months that he had served the respondent, he being a part-time employee. All other claims are hereby dismissed for lack of merit.

The computation of the foregoing awards is hereto attached and forms an integral part of this decision."

On appeal,1 the NLRC affirmed the Labor Arbiter's decision.

Hence, this petition by the PHCCI.

The issue for our resolution is whether or not respondent judge committed grave abuse of discretion in ruling that there is an employer-
employee relationship between the parties and that private respondents were illegally dismissed.

Petitioner PHCCI contends that private respondents are its members and are working for it as volunteers. Not being regular employees,
they cannot sue petitioner.

In determining the existence of an employer-employee relationship, the following elements are considered: (1 ) the selection and
engagement of the worker or the power to hire; (2) the power to dismiss; (3) the payment of wages by whatever means; and (4) the
power to control the worker's conduct, with the latter assuming primacy in the overall consideration. No particular form of proof is
required to prove the existence of an employer-employee relationship. Any competent and relevant evidence may show the
relationship.2

The above elements are present here. Petitioner PHCCI, through Mr. Edilberto Lantaca, Jr., its Manager, hired private respondents to
work for it. They worked regularly on regular working hours, were assigned specific duties, were paid regular wages and made to
accomplish daily time records just like any other regular employee. They worked under the supervision of the cooperative manager. But
unfortunately, they were dismissed.

That an employer-employee exists between the parties is shown by the averments of private respondents in their respective affidavits,
carefully considered by respondent NLRC in affirming the Labor Arbiter's decision, thus:

Benedicto Faburada —Regular part-time Computer programmer/ operator. Worked with the Cooperative since June 1, 1988 up to
December 29, 1989. Work schedule: Tuesdays and Thursdays, from 1:00 p.m. to 5:30 p.m. and every Saturday from 8:00 to 11:30 a.m.
and 1:00 to 4:00 p.m. and for at least three (3) hours during Sundays. Monthly salary: P1,000.00 — from June to December 1988;
P1,350.00 - from January to June 1989; and P1,500.00 from July to December 1989. Duties: Among others, — Enter data into the
computer; compute interests on savings deposits, effect mortuary deductions and dividends on fixed deposits; maintain the masterlist of
the cooperative members; perform various forms for mimeographing; and perform such other duties as may be assigned from time to
time.

Sisinita Vilar — Clerk. Worked with the Cooperative since December 1, 1987 up to December 29, 1989. Work schedule: Regular
working hours. Monthly salary: P500.00 — from December 1, 1987 to December 31, 1988; P1,000.00 — from January 1, 1989 to June
30, 1989; and P1,150.00 — from July 1, 1989 to December 31, 1989. Duties: Among others, Prepare summary of salary advances,
journal vouchers, daily summary of disbursements to respective classifications; schedule loans; prepare checks and cash vouchers for
regular and emergency loans; reconcile bank statements to the daily summary of disbursements; post the monthly balance of fixed and
savings deposits in preparation for the computation of interests, dividends, mortuary and patronage funds; disburse checks during
regular and emergency loans; and perform such other bookkeeping and accounting duties as may be assigned to her from time to time.

Imelda C. Tamayo — Clerk. Worked with the Cooperative since October 19, 1987 up to December 29, 1989. Work schedule: Monday
to Friday - 8:00 to 11:30 a.m and 2:00 to 5:30 p.m.; every Saturday — 8:00 to 11:30 a.m and 1:00 to 4:00 p.m; and for one Sunday
each month - for at least three (3) hours. Monthly salary: P60.00 — from October to November 1987; P250.00 for December 1987;
P500.00 — from January to December 1988; P950 — from January to June 1989; and P1,000.00 from July to December 1989. Duties:
Among others, pick up balances for the computation of interests on savings deposit, mortuary, dividends and patronage funds; prepare
cash vouchers; check petty cash vouchers; take charge of the preparation of new passbooks and ledgers for new applicants; fill up
members logbook of regular depositors, junior depositors and special accounts; take charge of loan releases every Monday morning;
assist in the posting and preparation of deposit slips; receive deposits from members; and perform such other bookkeeping and
accounting duties as may be assigned her from time to time.

Harold D. Catipay — Clerk. Worked with the Cooperative since March 3 to December 29, 1989. Work schedule: — Monday to Friday —
8:00 to 11:30 a.m. and 2:00 to 5:30 p.m.; Saturday — 8:00 to 11:30 a.m. and 1:00 to 4:00 p.m.; and one Sunday each month — for at
least three (3) hours. Monthly salary: P900.00 — from March to June 1989; P1,050.00 - from July to December 1989. Duties: Among
others, Bookkeeping, accounting and collecting duties, such as, post daily collections from the two (2) collectors in the market; reconcile
passbooks and ledgers of members in the market; and assist the other clerks in their duties.

All of them were given a memorandum of termination on January 2, 1990, effective December 29, 1989.

We are not prepared to disregard the findings of both the Labor Arbiter and respondent NLRC, the same being supported by substantial
evidence, that quantum of evidence required in quasi judicial proceedings, like this one.

Necessarily, this leads us to the issue of whether or not private respondents are regular employees. Article 280 of the Labor Code
provides for three kinds of employees: (1) regular employees or those who have been engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the employer; (2) project employees or those whose employment has been
fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of
the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season;
and (3) casual employees or those who are neither regular nor project employees.3 The employees who are deemed regular are: (a)
those who have been engaged to perform activities which are usually necessary or desirable in the usual trade or business of the
employer; and (b) those casual employees who have rendered at least one (1 ) year of service, whether such service is continuous or
broken, with respect to the activity in which they are employed.4 Undeniably, private respondents were rendering services necessary to
the day-to-day operations of petitioner PHCCI. This fact alone qualified them as regular employees.

All of them, except Harold D. Catipay, worked with petitioner for more than one (1) year: Benedicto Faburada, for one and a half (1 1/2)
years; Sisinita Vilar, for two (2) years; and Imelda C. Tamayo, for two (2) years and two (2) months. That Benedicto Faburada worked
only on a part-time basis, does not mean that he is not a regular employee. One's regularity of employment is not determined by the
number of hours one works but by the nature and by the length of time one has been in that particular job.5 Petitioner's contention that
private respondents are mere volunteer workers, not regular employees, must necessarily fail. Its invocation of San Jose City Electric
Cooperative vs. Ministry of Labor and Employment (173 SCRA 697, 703 (1989) is misplaced. The issue in this case is whether or not
the employees-members of a cooperative can organize themselves for purposes of collective bargaining, not whether or not the
members can be employees. Petitioner missed the point

As regular employees or workers, private respondents are entitled to security of tenure. Thus, their services may be terminated only for
a valid cause, with observance of due process.

The valid causes are categorized into two groups: the just causes under Articles 282 of the Labor Code and the authorized causes
under Articles 283 and 284 of the same Code. The just causes are: (1) serious misconduct or willful disobedience of lawful orders in
connection with the employee's work; (2) gross or habitual neglect of duties; (3) fraud or willful breach of trust; (4) commission of a
crime or an offense against the person of the employer or his immediate family member or representative; and, analogous cases. The
authorized causes are: (1) the installation of labor-saving devices; (2) redundancy; (3) retrenchment to prevent losses; and (4) closing
or cessation of operations of the establishment or undertaking, unless the closing is for the purpose of circumventing the provisions of
law. Article 284 provides that an employer would be authorized to terminate the services of an employee found to be suffering from any
disease if the employee's continued employment is prohibited by law or is prejudicial to his health or to the health of his fellow
employees6

Private respondents were dismissed not for any of the above causes. They were dismissed because petitioner considered them to be
mere voluntary workers, being its members, and as such work at its pleasure. Petitioner thus vehemently insists that their dismissal is
not against the law.

Procedural due process requires that the employer serve the employees to be dismissed two (2) written notices before the termination
of their employment is effected: (a) the first, to apprise them of the particular acts or omissions for which their dismissal is sought and
(b) the second, to inform them of the decision of the employer that they are being dismissed.7 In this case, only one notice was served
upon private respondents by petitioner. It was in the form of a Memorandum signed by the Manager of the Cooperative dated January
2, 1990 terminating their services effective December 29, 1989. Clearly, petitioner failed to comply with the twin requisites of a valid
notice.

We hold that private respondents have been illegally dismissed.

Petitioner contends that the labor arbiter has no jurisdiction to take cognizance of the complaint of private respondents considering that
they failed to submit their dispute to the grievance machinery as required by P.D. 175 (strengthening the Cooperative Movement) 8 and
its implementing rules and regulations under LOI 23. Likewise, the Cooperative Development Authority did not issue a Certificate of
Non-Resolution pursuant to Section 8 of R.A. 6939 or the Cooperative Development Authority Law.

As aptly stated by the Solicitor General in his comment, P.D. 175 does not provide for a grievance machinery where a dispute or claim
may first be submitted. LOI 23 refers to instructions to the Secretary of Public Works and Communications to implement immediately
the recommendation of the Postmaster General for the dismissal of some employees of the Bureau of Post. Obviously, this LOI has no
relevance to the instant case.

Article 121 of Republic Act No. 6938 (Cooperative Code of the Philippines) provides the procedure how cooperative disputes are to be
resolved, thus:

ART. 121. Settlement of Disputes. — Disputes among members, officers, directors, and committee members, and intra-
cooperative disputes shall, as far as practicable, be settled amicably in accordance with the conciliation or mediation mechanisms
embodied in the by-laws of the cooperative, and in applicable laws.

Should such a conciliation/mediation proceeding fail, the matter shall be settled in a court of competent jurisdiction."

Complementing this Article is Section8 of R.A. No. 6939 (Cooperative Development Authority Law) which reads:

SEC. 8 Mediation and Conciliation. — Upon request of either or both parties, the Authority shall mediate and conciliate disputes within
a cooperative or between cooperatives: Provided, That if no mediation or conciliation succeeds within three (3) months from request
thereof, a certificate of non-resolution shall be issued by the Commission prior to the filing of appropriate action before the proper
courts.

The above provisions apply to members, officers and directors of the cooperative involved in disputes within a cooperative or between
cooperatives.

There is no evidence that private respondents are members of petitioner PHCCI and even if they are, the dispute is about payment of
wages, overtime pay, rest day and termination of employment. Under Art. 217 of the Labor Code, these disputes are within the original
and exclusive jurisdiction of the Labor Arbiter.

As illegally dismissed employees, private respondents are therefore entitled to reinstatement without loss of seniority rights and other
privileges and to full backwages, inclusive of allowances, plus other benefits or their monetary equivalent computed from the time their
compensation was withheld from them up to the time of their actual reinstatement.9 Since they were dismissed after March 21, 1989,
the effectivity date of R.A. 671510 they are granted full backwages, meaning, without deducting from their backwages the earnings
derived by them elsewhere during the period of their illegal dismissal.11 If reinstatement is no longer feasible, as when the relationship
between petitioner and private respondents has become strained, payment of their separation pay in lieu of reinstatement is in order.12

WHEREFORE, the petition is hereby DENIED. The decision of respondent NLRC is AFFIRMED, with modification in the sense that the
backwages due private respondents shall be paid in full, computed from the time they were illegally dismissed up to the time of the
finality of this Decision.13

SO ORDERED.

Melo, Vitug and Panganiban, JJ., concur.

G.R. Nos. 96277-82 December 2, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ABELARDO C. AVENDAÑO, accused-appellant,

GRIÑO-AQUINO, J.:

Six (6) separate information for Illegal Recruitment of some 38 workers were filled against appellant Abelardo Avendaño y Crespo
which were docketed as Criminal Case Nos. 6113-MN, 6114-MN, 6125-MN, 6131-MN, 6143-MN and 6148-MN in the Regional Trial
Court, Branch 170, at Malabon, Metro Manila. The information alleged the following:

The undersigned Assistant Fiscal accused Abelardo Avendaño of the crime of Illegal Recruitment, committed as follows:

1. Criminal Case No. 6113-MN

That sometime in the months of June and July, 1986, in the Municipal of Malabon, Metro Manila, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, conspiring, confederating, with accused CARMELITO SORIANO, JR., yet known
and helping with one another, representing himself to have the capacity to contract, enlist and transport Filipino workers for employment
abroad, did, then and there, willfully, unlawfully and feloniously, for a fee, recruit and promise employment/job placement abroad to
MARINO NOVESTRO y RONATO, RONALDO CRUCENA y RONO, ZOCIMO DEL ROSARIO y CUBILLA, RUPERTO LEGASPI y
DIGMA and GUILLERMO ROMASANTA y LEGASPI without first securing the required license or authority form the Department of
Labor and Employment. (p. 8, Rollo.)

2. Criminal Case 6114-MN

That sometime in the months of June, 1986, in the Municipality of Malabon, Metro Manila, Philippines and within the jurisdiction of the
Honorable Court, the above-named accused, conspiring, confederating with accused CARMELITO SORIANO, JR. whose identity and
whereabout are not yet known and helping with one another, representing himself to have the capacity to contract, enlist and transport
Filipino workers for employment abroad, did, then and there, wilfully, unlawfully and feloniously, for a fee, recruit and promise
employment/job placement abroad to FELICIANO BAGO, FEDERICO MOJICA Y DEROY, DANILO PANGANIBAN y LEGASPI and
ALBERTO ESPINELLI y LEGASPI, without first securing the required license for authority from the Department of Labor and
Employment. (p. 10, Rollo.)

3. Criminal Case No. 6125-MN

That sometime in the year 1986 covering the months of June, October, and November, in the Municipality of Malabon, Metro Manila,
Philippines and within the jurisdiction of the Honorable Court, the above-named accused, conspiring, confederating, with accused
CARMELITO SORIANO, JR. whose identity and whereabout is not yet known and helping with one another, representing himself to
have the capacity to contract, enlist and transport Filipino workers for employment abroad, did, then and there, wilfully, unlawfully and
feloniously, for a fee, recruit and promise employment/job placement abroad to ELIODORO BAGO y RONO, PAMFILO LLAMADO y
ROMASANTA, LEOPOLDO CUBILLA y EMELO, TOMAS LIVETA y FERRERA, VIRGILIO FLORALDE y CAGITLA, RUBEN AMBAT y
LIVETA, ARTEMIO PEÑUS y PARANTAL, EDGARDO RODIL y RAMOS, JAIME FERRERA y MIRANDA, ZOCIMO FERRERA y
EYAYA, IRENEO RAMOS y NOCEDA, LOPE COSTELO y DELALUYA, REYNALDO PANGANIBAN y FERRERA and APOLONIO
MOJICA y VIDALLO, without first securing the required license or authority from the Department of Labor and Employment. (p. 11,
Rollo.)

4. Criminal Case No. 6131-MN

That sometime in the year 1984, 1985, 1987 covering the months of November, September and May in the Municipality of Malabon,
Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating with
accused CARMELITO SORIANO, JR. whose identity and whereabout is not yet known and helping with one another, representing
himself to have the capacity to contact, enlist and transport Filipino workers for employment abroad, did, then and there, wilfully,
unlawfully and feloniously, for a fee, recruit and promise employment/job placement abroad to HILARION PASIA y ROBLES, FELIPE
EDILLOR y EDILLON, BAYANI AFABLE y BONDOC, LEODEGARIO ROBLES y RAMOS, AND NEL-JUNE EVANGELISTA y
SARMIENTO, without first securing the required license or authority from the Department of Labor and Employment. (p. 13, Rollo.)

5. Criminal Case No. 6143.-MN

That sometime in the year 1986 covering the months of January, March, April and September, in the Municipality of Malabon, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating with
accused CARMELITO SORIANO, JR. whose whereabout is not yet known and helping with one another, representing himself to have
the capacity to contract, enlist and transport Filipino workers for employment abroad, did, then and there, wilfully, unlawfully and
feloniously, for a fee, recruit and promise employment/job placement abroad to DOMINGO ESCUBIN y ECUBI, RODOLFO LAUZON y
SERRANO, ANGELO ROBLES y MENESES, WILFREDO MORA y ARMEROLA, BERNARDO CANILANG y AQUINO, LEOPOLDO
CO y FERNANDEZ, MARLINO CANILANG y COLOMA, JESSI SORIANO y MANUEL and MAURO CABARDO y SANTOS, JR.,
without first securing the required license of authority from the Department of Labor and Employment." (p. 15, Rollo.)
6. Criminal Case No. 6148-MN

That on or about the 15th day of April, 1985, in the Municipality of Malabon, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating with accused CARMELITO SORIANO, JR., MANUEL
CALANOG and RENATO M. SORIANO whose whereabouts are not yet known and helping with one another, representing himself to
have the capacity to contract, enlist and transport Filipino workers for employment abroad, did, then and there, wilfully, unlawfully and
feloniously for a fee, recruit and promise employment/job placement abroad to HENRY CAMBA y LIVARA, without first securing the
required license or authority from the Department of Labor and Employment. (p. 17, Rollo.)

Upon arraignment, Avendaño pleaded not guilty to the six (6) informations. His co-accused, Carmelito Soriano, Jr., Renato M. Soriano
and Manuel Calonog have remained at large. (pp. 8-17, Rollo.)

The cases were consolidated and jointly tried.

Except for the amounts, the circumstances, and the names of the victims, the factual scenario of these six criminal cases are
summarized in the decisions of the trial as follows:

The accused (Abelardo C. Avedaño) is the Treasurer of MCBRAJ Agro-Industrial Development Company (MAINDECO), with offices at
26 Sta. Cecilia St., Sto. Rosario Village, Malabon, Metro Manila, which is also his residence. The company is not licensed nor
authorized to recruit workers for overseas employment. Carmelito Soriano, Jr. is the President of the said Company, Manuel Calanog is
the personnel manager (pp. 17-18, tsn, June 21, 1988; pp. 22-23, Rec. );

In Criminal Case No. 6113, the evidence shows that Rolando Crucena and Zosimo del Rosario went to the house of the accused
sometime in June, 1986 to apply as plumber as steel bender, respectively, in Papua, New Guinea. Guillermo Romasanta likewise
applied for a job as a plumber when he went to the house of accuse in July, 1986. They were all required to submit papers, such as bio-
data, birth certificate, marriage contract and certification of previous employment and clearances. Each one of them was asked by the
accused to give P5,500.00. After giving said amount to the accused, the latter told them that they could leave within ninety days. Said
period expired but they were not able to leave and were asked to wait, with a promise that they would be able to leave later, and they
waited for almost one year, until they got tired of waiting and filed a complaint against the accused.

In Criminal Case No. 6114, Feliciano Bago, Federico Mojica and Alberto Espinelli went to the house of the accused to apply for jobs in
Papua, New Guinea as steel fixer and plumbers sometime in June, 1986, submitted their papers and paid P5,500.00 to the accused,
who told them they could leave within ninety days but which did not materialize.

In Criminal Case No. 6125, Reynaldo Panganiban and Apolonio Mejica applied as steelman and warehouseman, respectively, with
MAINDECO in June, 1986, submitted documents and paid P5,500.00 to the accused, who assured them that they could leave for
Papua, New Guinea, which did not materialize despite a long period of time. Ruben Ambat applied with MAINDECO as electrician in
November, 1986 and submitted documents and paid P5,500.00 to the accused , who told him he could leave for Papua, New Guinea
before Christmas or three months thereafter, but was not able to do so. However, Pamfilo Llamado and Tomas Liveta, who likewise
applied with MAINDECO for jobs in Papua, New Guinea in June, 1986 and October, 1985, respectively, admitted that the accused only
received the placement fee of P4,500.00 from them and issued receipts thereof, but did not promise them jobs in Papua, New Guinea,
which promise was made to them by the President and Personnel Manager of MAINDECO.

In Criminal Case No. 6131, Bayani Afable and Lodegario Robles went to MAINDECO in March, 1987 and applied as electricians in
Papua, New Guinea and talked with the accused, who asked them to give P5,000.00 each. They gave the money and the documents
required by the office in connection with their job applications to the accused, who assured them that they could leave for abroad.

In Criminal Case No. 6143, Rodolfo Lauzon applied on March 5, 1986 with MAINDECO for a job as janitor in Papua, New Guinea and
was asked to pay a placement fee of P5,500.00. He paid said amount to the accused, who then told him that he could leave after three
months.

In Criminal Case No. 6148, Henry Camba applied in April, 1985 with MAINDECO for a job as electrician in Papua, New Guinea,
submitted the papers required by said company and paid the amount of P4,000.00 to the accused and he was told that he could leave
within three to six months. However, two years lapsed and Henry Camba was still not able to leave and he demanded for the
reimbursement of the money he paid, to no avail.

It appears that the receipts issued by the accused to the complaints show that the payments made by them were in the form of trust
deposit for one unit of share in the company. The receipts were subsequently surrendered to the company in exchange of certificates of
common share in MCARM Agro-Industrial Development Corporation, making the complainants stockholders of the corporation.
However, Henry Camba refused to surrender his receipt in exchange for a certificate of common share as he was insisting that the
money he paid be returned to him. Moreover, while some of the complainants paid P5,500.00, the receipts issued to them reflected only
the amount of P4,500.00 as the balance of P1,000.00 was allegedly for the processing of their passport and physical examination.
Some of the complainants underwent physical examination and made to attend orientation seminars while waiting for their departure to
Papua, New Guinea. The complainants finally got tired of waiting for the promised employment abroad and filed their complaints
against the accused.

On the other hand, the accused tried to show that MAINDECO, which was engaged in the construction business, was duly registered
with the Securities and Exchange Commission. He was appointed treasurer of the corporation and, as such, he received payments and
issued receipts. MAINDECO was invited by the government of Papua, New Guinea to a joint venture tuna industry (Exh. "3"), for which
reason, it sold stocks to private individuals with the promise that they would be sent to Papua, New Guinea should the joint venture
materialize. He denied having talked to the complainants regarding jobs in Papua, New Guinea, claiming that the officials who talked to
them were the President, Vice-President and Manager and his duty was only to issue receipts to the complainants upon payment of
their shares in the corporation. However, the joint venture with Papua, New Guinea did not materialize because the President had
already disappeared. He admitted that he joined MAINDECO because of the offer made to him by the Vice-President to go to Papua,
New Guinea.

It is admitted that MAINDECO is not licensed or authorized by the Department of Labor and Employment to engage in recruitment of
persons for overseas employment. Consequently, the recruitment activities undertaken by MAINDECO are illegal. Illegal recruitment,
when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage. Illegal recruitment is
deemed committed by a syndicate if carried out by a group of three (3) of more persons conspiring and/or confederating with one
another in carrying out any lawful or illegal transaction, enterprise or scheme, and it is deemed committed in large scale if committed
against three (3) or more persons individually or as a group. (Article 38, paragraphs [a] and [b], Labor Code). The penalty of life
imprisonment and a fine of P100,000.00 shall be imposed if illegal recruitment constitutes economic sabotage. Any person who is
neither a licensee nor a holder of authority found violating any provision of the Code shall suffer the penalty of imprisonment of not less
than four years nor more than eight years or a fine of not less than P20,000.00 nor more than 100,000.00 or both such imprisonment
and fine at the discretion of the court. If the offender is a corporation, partnership, association or entity, the the penalty shall be imposed
upon the officer or officers of the corporation, partnership, association or entity responsible for violation. (Article 39, paragraphs [a], [c]
and [d], Labor Code.)

The accused admitted that the complainants, who paid for certificates of stock of MAINDECO, were told by the President of the
corporation that they would be sent to Papua, New Guinea pursuant to the joint venture tuna industry (tsn, Feb. 13, 1990, p. 5). In other
words, the accused was aware that the complainants were offered job opportunities in Papua, New Guinea. The assurance that they
would be sent abroad, in addition to being stockholders of the corporation, impelled the complainants to give their money to the
accused. Thus, aside from being required to pay for the certificates of stock, the complainants were likewise required to submit
documents, such as bio-data, birth certificates, marriage contracts, clearances and certificate of previous employment. With respect to
the complainants who paid P5,500.00, only the amount of P4,500.00 was receipted as trust deposit by the accused, who told them that
the balance of P1,000.00 was intended for the processing of their passport and for their physical examination. Some of the
complainants underwent physical examination and attended orientation seminars while waiting for their departure. In view of the fact
that MAINDECO is not a licensed or authorized recruitment entity and, therefore, not authorized to recruit anyone for employment, said
corporation made it appear that the payment made to it was for the purchase of certificates of stock and that complainants were
stockholders of the corporation was a cover-up to their illegal activities.

On October 2, 1990, the trial court rendered a single decision convicting Avendaño of the crime charged and sentenced as follows:

WHEREFORE, in view of the foregoing, judgement is hereby rendered finding accused Abelardo Avendaño Y Crespo guilty beyond
reasonable doubt of the crime of Illegal Recruitment committed in large scale, thus constituting economic sabotage, defined and
penalized in Article 39, paragraph (a) of the Labor Code, in Criminal Case Nos. 6113, 6114 and 6125 and sentences him to
imprisonment and to pay a fine of P100,000.00 in each case. In Criminal Case Nos. 6131, 6143 and 6148, accused Abelardo
Avendaño Y Crespo is found guilty beyond reasonable doubt of the crime of Illegal Recruitment defined and penalized in Article 38,
paragraph (c) of the Labor Code and sentenced to suffer the penalty of imprisonment of four (4) years, as minimum to eight (8) years as
maximum and to pay a fine of P20,000.00, in each case.

Cost against the accused in all the above-entitled cases.

Let the accused be credited with whatever preventive imprisonment he has undergone by reason of these cases, pursuant to Article 29
of the Revised Penal Code. (pp. 43-44, Rollo.)

Because the accused was sentenced to suffer the penalty of life imprisonment in three (3) of the Six (6) cases, he appealed to this
Court, assigning the following errors against the judgement of the lower court:

1. The trial court erred in appreciating only the evidence of the prosecution and in disregarding the evidence of the defense.

2. The trial court erred in convicting accused-appellant of the crime charged despite the failure of the prosecution to prove his
guilt beyond reasonable doubt. (p. 56, Rollo.)

The appeal has no merit.

The trial court correctly fount Avendaño to have conspired with his co-accused Carmelito Soriano, Jr., Manuel Calanog and Renato M.
Soriano, to illegally recruit some 38 persons for overseas employment, charging and collecting a fee of P5,500.00 from each job
applicant although they (the accused) did not have the required license and authority from the Department of Labor to engage in
recruiting workers for overseas employment. They defrauded the job applicants of the "fees" (P5,500.00) which the latter paid for the
false hope of obtaining employment in Papua, New Guinea, which was never realized. Appellant's pretext that the fee of P5,500.00 paid
by each job applicant was not a placement fee but payment for a share of stock in MAINDECO, supposedly a prerequisite for the
deployment of the "stockholder" in Papua, New Guinea, must be rejected for the simple reason that those who purchased the "shares"
did not intend to invest, but to obtain a job placement, in Papua, New Guinea. They were not investors but job seekers. Further proof
that they were being swindled is that those who paid P5,500.00 each received a receipt for only P4,500.00 from the appellant who
informed them that the unreceipted amount of P1,000.00 was to pay for their medical examination and the processing of their
passports, although no passports were ever issued to them.
Appellant's allegation that he allowed his residence to be used as MAINDECO's office because he was induced to join the corporation
by Gapuz, MAINDECO's Vice-President, who promised him a job abroad, is unbelievable. At no time in the course of his testimony did
he mention any attempt on his part to follow up his supposed application for overseas employment.

Appellant's pretense that he was a "victim" like the complainants, is absurd for it was he who collected the placement fees of the
complainants.

Appellant and his co-accused committed Illegal Recruitment on a Large Scale as defined and penalized in Articles 38(b) and 39(a) of
the Labor Code, because they had victimized more than three (3) job applications — thirty eight (38) in fact.

Art. 38. Illegal Recruitment. — (a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this
Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this
Code. This Ministry of Labor and Employment or any law enforcement officers may initiate complainants under this Article.

(b) Illegal recruitment when committed be a syndicate or in large scale shall be considered an offense involving economic
sabotage and shall be penalized in accordance with Article 39 hereof.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or
confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first
paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against (3) or more persons individually or as a
group."

Art. 39. Penalties. — (a) The penalty of life imprisonment an a fine of One Hundred Thousand Pesos (P100,000) shall be imposed if
illegal recruitment constitutes economic sabotage as defined herein:

xxx xxx xxx

(c) Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or its
implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than four years nor
more than eight years or a fine of not less than P20,000 nor more than P100,000 or both such imprisonment and fine, at the discretion
of the court;

(d) If the offender is a corporation, partnership, association or entity, the penalty shall be imposed upon the officer or officers of
the corporation, partnership, association or entity responsible for violation; and if such officer is an alien, he shall, in addition to the
penalties herein prescribed, be deported without further proceedings; (Emphasis supplied)

In Crim. Case Nos. 6113-MN and 6114-MN where Avendaño acted in conspiracy with his co-accused to fleece three (3) job applicants
in each case of their placement fees for non-existent overseas jobs, and in Crim, Case No. 6125-MN where they victimized five (5)
persons, the crimes committed were illegal recruitment by a syndicate (Art. 38 Labor Code). When illegal recruitment is committed by a
syndicate or in large scale, it becomes an offense involving economic sabotage (Art. 38, Labor Code) and shall be penalized with life
imprisonment and a fine of P100,000 (Art. 39, par. [a], Labor Code ).

In Crim. Case No. 6131-MN where only two persons were defrauded, and in Crim. Case Nos. 6143-MN and 6148-MN where there was
only one victim in each case, the crimes committed were simple illegal recruitment penalized in par. (c), Art. 39.

WHEREFORE, as the trial court did not commit any reversible error in finding Avendaño guilty of large scale illegal recruitment in
Criminal Cases Nos. 6113, 6114 and 6125, and of simple illegal recruitment in Criminal Case Nos. 6131, 6143 and 6148, and as the
penalties imposed are in accordance with the law, the appealed decision is hereby AFFIRMED in toto.

SO ORDERED.

Cruz, Padilla, and Bellosillo, JJ., concur.

G.R. No. 91552-55 March 10, 1994
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
FERNANDO MANUNGAS, JR. y GO @ "PERCY", accused-appellant.
The Solicitor General for plaintiff-appellee.
Rolando Gamalinda for accused-appellant.

NOCON, J.:

This is an appeal by accused-appellant Fernando Manungas, Jr. alias "Percy" from the decision 1 dated October 31, 1989 of the
Regional Trial Court of Lingayen, Pangasisnan, Branch 38 in Criminal Cases Nos. L-3993, L-3994,
L-3996 and L-4000 finding him guilty beyond reasonable doubt of the crimes of ESTAFA and ILLEGAL RECRUITMENT, the dispositive
portion of which reads:
In the light of what has been stated and discussed above, the court finds and holds the accused Fernando Manungas
y Go alias "Percy" guilty beyond peradventure of doubt of the crimes filed against him and conformable thereto,
hereby pronounces judgment as follows:
In Criminal Case No. L-3993, the court declares accused, Fernando Manungas y Go alias "Percy" guilty of estafa for
the sum of P16,800.00 as alleged in the information filed against him and there being no aggravating nor mitigating
circumstance, and applying the Indeterminate Sentence Law in his favor, said accused is hereby sentenced to suffer
the prison term from two (2) years, eleven (11) months and ten years (10) days as minimum to five (5) years, five (5)
months and eleven (11) days of prision correccional as  maximum and to pay the costs of the proceedings.
The court further orders the accused to reimburse the offended party, Wilfrey Mabalot, the sum of sixteen thousand
eight hundred (P16,800.00) pesos which is the amount of money paid and delivered to him by said complaining
witness without subsidiary imprisonment in case of insolvency.
In Criminal Case No. L-3994, the court likewise declares the accused, Fernando Manungas y Go alias "Percy" guilty
of estafa for the sum of P17,550.00 as charged in the information. And there being no aggravating nor mitigating
circumstance present, and applying the Indeterminate Sentence Law in his favor, the accused is hereby sentenced to
suffer an indeterminate prison term from two (2) years, eleven (11) months and ten (10) days as minimum to five (5)
years, five (5) months and (11) days of prision correccional  as maximum and to pay the costs of the proceedings.
The court further directs the accused to reimburse the offended party, Danilo Ramirez the sum of seventeen
thousand five hundred fifty (P17,550.00) pesos which the accused took from the complaint without subsidiary
imprisonment in case of insolvency.
In Criminal Case No. L-3996, the court also declares the accused, Fernando Manungas y Go alias "Percy" guilty of
estafa for eighteen thousand six hundred (P18,600.00) pesos as charged in the information filed against him. There
being no aggravating nor mitigating circumstance present, and applying the Indeterminate Law in his favor, said
accused is hereby sentenced to suffer an indeterminate prison term from two (2) years, eleven months (11) months
and ten (10) days asminimum  to five (5) years, five (5) months and eleven (11) days of prision
correccional as maximumand to pay the costs of the proceedings.
The court also directs the accused to reimburse the offended party the sum of eighteen thousand six hundred
(P18,600.00) pesos which is the amount paid and delivered by the offended party to him without subsidiary
imprisonment in case of insolvency.
In Criminal Case No. L-4000, the court likewise holds the accused, Fernando Manungas y Go alias "Precy" guilty of
the crime of Illegal Recruitment on Large Scale as charged in the information filed against him, defined and penalized
under the provisions of Article 39, par. (a) of Presidential Decree No. 2018 amending Articles 38 and 39 of P.D. No.
442, otherwise known as the Labor Code of the Philippines, and conformable thereto, hereby sentences the said
accused to suffer the penalty of Life Imprisonment and to pay a fine of One Hundred Thousand (P100,000.00) pesos
without subsidiary imprisonment in case of insolvency pursuant to law.
The accused shall serve the penalties herein imposed against him successively or one after the other according to
their severity. 2
Based on the evidence adduced before the trial court, the facts of the case are as follows:
Sometime in April of 1987, accused-appellant Fernando Manungas, Jr. went to Barangay Legaspi, Tayug, Pangasinan where he stayed
in the house of Arturo and Lilia de Vera to recruit workers for employment abroad. During his stay, accused-appellant was able to
convince complainants Wilfrey Mabalot, Danilo Ramirez, Leonardo Estanoco and Crisanto Collado to apply as janitors in Saudi Arabia.
He told them to bring all the necessary documents for the processing of their applications to his office in Manila.
On April 29, 1987, complainants went to accused-appellant's office located at Room 611, L and S Bldg., 1414 Roxas Blvd., Ermita,
Manila and paid accused-appellant P250.00 each for their medical examination. Thereafter, accused-appellant required the
complainants to pay, on various occasions, placement fees and other expenses incurred in the processing of their papers and issued
corresponding receipts for said amounts. The total amount paid by the complainants to accused-appellant are the following: Wilfrey
Mabalot — P16,800.00; Danilo Ramirez — P17,550.00, Leonardo Estanoco — 18,600.00, and Crisanto Collado — 13,300.00
When complainants failed to leave for Saudi Arabia, they requested Luis "Jing" Ramirez, to verify with the Philippine Overseas
Employment Administration (POEA) whether accused-appellant was licensed to recruit workers for abroad. They subsequently learned
that he was not as shown by the Certification issued by the POEA. 3
Thereafter, complaints filed against accused-appellant complaints for Estafa defined under par. 2(a), Article 315 of the Revised Penal
Code and Illegal Recruitment on a Large Scale. In due course, informations fro three (3) counts of Estafa (Criminal Cases Nos. L-3993,
L-3994 and L-3996) and Illegal Recruitment on a Large Scale (Criminal Case No. L-4000) were filed against accused-appellant before
the Regional Trial Court of Lingayen, Pangasinan.
On the other hand, accused-appellant maintained that he was the operations manager of the ZG Recruitment and Placement Agency, a
duly licensed recruitment agency. Sometime in April 1987, he went to Barangay Legaspi, Tayug, Pangasinan and recruited
complainants to work in Saudi Arabia as janitors. Unfortunately, the job order for the janitorial services was awarded to Express
Placement Agency instead of ZG Recruitment and Placement agency. Thereafter, accused-appellant transferred complainants'
application for overseas employment to Nora Cunanan of Express Placement Agency. Accused-appellant also turned over the fees
paid by the complainants to Nora Cunanan as evidenced by the receipts 4 issued by the latter. When Nora Cunanan absconded with the
money of the complainants, accused-appellant filed an estafa case against Nora Cunanan after securing a Special Power of Attorney
from the complainants to prosecute and collect their money. However, he was not able to attend the hearing as he was arrested in
connection with the these cases.
Accused-appellant maintains that he did not make false representations to the complainants when he requited the latter for employment
abroad as he had told complainants that he is only an employee of a licensed recruitment agency in Manila. He further claims that he
was not motivated by any deceitful intentions and had not caused any damage to the complainants because the amounts of money
given to him by the latter were actually spent for their medical tests and other documents necessary for their overseas employment.
Article 13 (b) of the Labor Code defines "Recruitment and Placement" as:
Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals,
contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That
any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be
deemed engaged in recruitment and placement.
In the instant case, accused-appellant told complainants to submit to him their pictures, birth certificates, NBI clearances and the
necessary documents for the processing of their employment in Saudi Arabia. Thereafter, accused-appellant collected from each of the
complainants payment for the their respective passport, training fee, placement fee, medical tests and other sundry expenses which
unquestionably constitutes acts of recruitment within the meaning of the law. Besides, there is illegal recruitment when one gives the
impression of his ability to send a worker abroad 5 and there is evidence that accused-appellant had represented to the complainants
that he could send them abroad as janitors in Saudi Arabia. And because of his representation, complainants gave their hard-earned
money to accused-appellant in consideration of the same representation. As pointed out by the Solicitor General in his brief:
It may be that at the time appellant recruited private complainants, he was then the operations manager of the ZGR
Placement Agency, a duly licensed recruitment agency. But, as amply established by the evidence, the recruitment of
private complainants was appellant's own personal undertaking. He did not do it for the agency. This is clearly shown
by the sequence of events that led to the consum[m]ation of the transaction in question. Thus: it was appellant who
talked private complainants into applying for employment abroad; when private complainants signified their interest,
he alone was the one who informed them of the documents that they have to secure; he too was the one who
demanded and received from them the fees for medical examination, passport, authentication, training, placement
and psycho and AIDS test; also, he was the one who assured them of employment abroad and of the return of their
money in the event of their non-deployment; moreover, it was he who undertook to inform private complainants of
their departure.
But that is not all. When private complainants failed to receive notice of their departure as promised them by
appellant, they had somebody verify with the POEA if appellant was a licensed recruiter. This circumstance shows all
the more that indeed appellant represented himself to be the recruiter, otherwise it would have been the status of the
agency with which he allegedly worked for, that private complainants would have requested to be verified. 6
As to accused-appellant's claim that he did not misappropriate the money given to him by the complainants as he had turned over the
latters' placement fees to Nora Cunanan, who subsequently absconded with the complainant's money, the trial court correctly held that:
The version of the defense has the nature of a cock and bull story which is difficult and hard to accept. It is something
that is fantastic and ridiculous. It is within the realm of fiction and patently a mere fabrication to exculpate the accused
from the consequences of his nefarious and deceitful activities. If it is really true that the complainants were
transferred and accommodated by the agency of Nora Cunanan, why did not the accused and Mrs. Lydia Zamora
who appear to be both intelligent take the necessary prudence and caution of putting the supposed agreement to
transfer in writing considering the amounts of funds involved in the alleged transfer. Logic and common sense dictate
that under such a situation, the accused and Mrs. Zamora take ordinary care of their concerns. To impress the court
that there was really a transfer made, the accused claimed that there was a estafa case filed against Mrs. Cunanan
before the City Fiscal's Office in Manila. It is however surprising why Atty. Jose Torrefranca who was engaged by the
accused to file the estafa case did not present any letter-complaint or any charged sheet filed against Mrs. Cunanan.
He did not even mention the Fiscal who investigated the case. More intriguing is the fact that counsel does not know
what happened to the alleged case of estafa after he filed the same. Likewise, when Mrs. Lydia Zamora declared,
she claimed that the case filed against Nora Cunanan was before the Regional Trial Court and not in the City Fiscal's
Office.
Defense also made capital of the special power of atty. executed by the complainants (exhibit 4) and their letters sent
to the accused (exhibits 5, 6, 7 and 8) to convince the court that the real culprit in the whole mess in Nora Cunanan.
The complainants made convincing explanation why they signed the special power of attorney. Wilfrey Mabalot
declared that when the accused asked him to sign the document, he was told that its purpose is to facilitate their
departure and when he signed the letter exhibit "6" he was just told to sign by the accused and because the latter
was in [a] hurry, he signed without knowing its contents. He likewise explained that being a mere high school
graduate he was not able to understand the imports of its contents. Danilo Ramirez explained that when he signed
the special power of attorney, he did not read the contents because the accused was in [a] hurry in returning to
Manila and that he sent the three letters to the accused while he was confined in jail because Manungas asked him to
help him (accused) recover the money given to Mrs. Cunanan. Leonardo Estanoco declared, that he signed exhibit
"4" because the accused told him that the document will be used to facilitate the processing of their papers. He did
not understand its contents because he only understands little English. 7
Thus accused-appellant is guilty of the crimes of Estafa and Illegal Recruitment. Under Article 38 of the Labor Code, as amended, the
crime of illegal recruitment is qualified when the same is committed against three (3) or more persons.
A person who violates any of the provisions under Article 13(b) and Article 34 of the Labor Code can be charged and convicted
separately of illegal recruitment and estafa [Revised Penal Code, Article 315, 2(a)] because illegal recruitment is a malum
prohibitum where the criminal intent of the accused is not necessary for a conviction while estafa is a malum in se  where criminal intent
of the accused is necessary for a conviction.
WHEREFORE, finding the accused-appellant guilty of the crimes of estafa and illegal recruitment in a large scale, decision of the trial
court is hereby AFFIRMED.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Puno, JJ., concur.
G.R. No. 113161 August 29, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
LOMA GOCE y OLALIA, DAN GOCE and NELLY D. AGUSTIN, accused. NELLY D. AGUSTIN, accused-appellant.

REGALADO, J.:

On January 12, 1988, an information for illegal recruitment committed by a syndicate and in large scale, punishable under Articles 38
and 39 of the Labor Code (Presidential Decree No. 442) as amended by Section 1(b) of Presidential Decree No. 2018, was filed
against spouses Dan and Loma Goce and herein accused-appellant Nelly Agustin in the Regional Trial Court of Manila, Branch 5,
alleging —
That in or about and during the period comprised between May 1986 and June 25, 1987, both dates inclusive, in the
City of Manila, Philippines, the said accused, conspiring and confederating together and helping one another,
representing themselves to have the capacity to contract, enlist and transport Filipino workers for employment
abroad, did then and there willfully and unlawfully, for a fee, recruit and promise employment/job placement abroad,
to (1) Rolando Dalida y Piernas, (2) Ernesto Alvarez y Lubangco, (3) Rogelio Salado y Savillo, (4) Ramona Salado y
Alvarez, (5) Dionisio Masaya y de Guzman, (6) Dave Rivera y de Leon, (7) Lorenzo Alvarez y Velayo, and (8) Nelson
Trinidad y Santos, without first having secured the required license or authority from the Department of Labor. 1
On January 21, 1987, a warrant of arrest was issued against the three accused but not one of them was arrested.2 Hence, on February
2, 1989, the trial court ordered the case archived but it issued a standing warrant of arrest against the accused. 3
Thereafter, on learning of the whereabouts of the accused, one of the offended parties, Rogelio Salado, requested on March 17, 1989
for a copy of the warrant of arrest. 4 Eventually, at around midday of February 26, 1993, Nelly Agustin was apprehended by the
Parañaque police. 5 On March 8, 1993, her counsel filed a motion to revive the case and requested that it be set for hearing "for
purposes of due process and for the accused to immediately have her day in court" 6 Thus, on April 15, 1993, the trial court reinstated
the case and set the arraignment for May 3, 1993, 7 on which date of Agustin pleaded not guilty 8 and the case subsequently went to
trial.
Four of the complainants testified for the prosecution. Rogelio Salado was the first to take the witness stand and he declared that
sometime in March or April, 1987, he was introduced by Lorenzo Alvarez, his brother-in-law and a co-applicant, to Nelly Agustin in the
latter's residence at Factor, Dongalo, Parañaque, Metro Manila. Representing herself as the manager of the Clover Placement Agency,
Agustin showed him a job order as proof that he could readily be deployed for overseas employment. Salado learned that he had to pay
P5,000.00 as processing fee, which amount he gave sometime in April or May of the same year. He was issued the corresponding
receipt. 9
Also in April or May, 1987, Salado, accompanied by five other applicants who were his relatives, went to the office of the placement
agency at Nakpil Street, Ermita, Manila where he saw Agustin and met the spouses Dan and Loma Goce, owners of the agency. He
submitted his bio-data and learned from Loma Goce that he had to give P12,000.00, instead of the original amount of P5,000.00 for the
placement fee. Although surprised at the new and higher sum, they subsequently agreed as long as there was an assurance that they
could leave for abroad. 10
Thereafter, a receipt was issued in the name of the Clover Placement Agency showing that Salado and his aforesaid co-applicants
each paid P2,000.00, instead of the P5,000.00 which each of them actually paid. Several months passed but Salado failed to leave for
the promised overseas employment. Hence, in October, 1987, along with the other recruits, he decided to go to the Philippine Overseas
Employment Administration (POEA) to verify the real status of Clover Placement Agency. They discovered that said agency was not
duly licensed to recruit job applicants. Later, upon learning that Agustin had been arrested, Salado decided to see her and to demand
the return of the money he had paid, but Agustin could only give him P500.00. 11
Ramona Salado, the wife of Rogelio Salado, came to know through her brother, Lorenzo Alvarez, about Nelly Agustin. Accompanied by
her husband, Rogelio, Ramona went to see Agustin at the latter's residence. Agustin persuaded her to apply as a cutter/sewer in Oman
so that she could join her husband. Encouraged by Agustin's promise that she and her husband could live together while working in
Oman, she instructed her husband to give Agustin P2,000.00 for each of them as placement fee, or the total sum of P4,000.00. 12
Much later, the Salado couple received a telegram from the placement agency requiring them to report to its office because the "NOC"
(visa) had allegedly arrived. Again, around February, or March, 1987, Rogelio gave P2,000.00 as payment for his and his wife's
passports. Despite follow-up of their papers twice a week from February to June, 1987, he and his wife failed to leave for abroad. 13
Complainant Dionisio Masaya, accompanied by his brother-in-law, Aquiles Ortega, applied for a job in Oman with the Clover Placement
Agency at Parañaque, the agency's former office address. There, Masaya met Nelly Agustin, who introduced herself as the manager of
the agency, and the Goce spouses, Dan and Loma, as well as the latter's daughter. He submitted several pertinent documents, such as
his bio-data and school credentials. 14
In May, 1986, Masaya gave Dan Goce P1,900.00 as an initial downpayment for the placement fee, and in September of that same
year, he gave an additional P10,000.00. He was issued receipts for said amounts and was advised to go to the placement office once
in a while to follow up his application, which he faithfully did. Much to his dismay and chagrin, he failed to leave for abroad as promised.
Accordingly, he was forced to demand that his money be refunded but Loma Goce could give him back only P4,000.00 in
installments. 15
As the prosecution's fourth and last witness, Ernesto Alvarez took the witness stand on June 7, 1993. He testified that in February,
1987, he met appellant Agustin through his cousin, Larry Alvarez, at her residence in Parañaque. She informed him that "madalas
siyang nagpapalakad sa Oman" and offered him a job as an ambulance driver at the Royal Hospital in Oman with a monthly salary of
about $600.00 to $700.00. 16
On March 10, 1987, Alvarez gave an initial amount of P3,000.00 as processing fee to Agustin at the latter's residence. In the same
month, he gave another P3,000.00, this time in the office of the placement agency. Agustin assured him that he could leave for abroad
before the end of 1987. He returned several times to the placement agency's office to follow up his application but to no avail.
Frustrated, he demanded the return of the money he had paid, but Agustin could only give back P500.00. Thereafter, he looked for
Agustin about eight times, but he could no longer find her. 17
Only herein appellant Agustin testified for the defense. She asserted that Dan and Loma Goce were her neighbors at Tambo,
Parañaque and that they were licensed recruiters and owners of the Clover Placement Agency. Previously, the Goce couple was able
to send her son, Reynaldo Agustin, to Saudi Arabia. Agustin met the aforementioned complainants through Lorenzo Alvarez who
requested her to introduce them to the Goce couple, to which request she acceded. 18
Denying any participation in the illegal recruitment and maintaining that the recruitment was perpetrated only by the Goce couple,
Agustin denied any knowledge of the receipts presented by the prosecution. She insisted that the complainants included her in the
complaint thinking that this would compel her to reveal the whereabouts of the Goce spouses. She failed to do so because in truth, so
she claims, she does not know the present address of the couple. All she knew was that they had left their residence in 1987. 19
Although she admitted having given P500.00 each to Rogelio Salado and Alvarez, she explained that it was entirely for different
reasons. Salado had supposedly asked for a loan, while Alvarez needed money because he was sick at that time. 20
On November 19, 1993, the trial court rendered judgment finding herein appellant guilty as a principal in the crime of illegal recruitment
in large scale, and sentencing her to serve the penalty of life imprisonment, as well as to pay a fine of P100,000.00. 21
In her present appeal, appellant Agustin raises the following arguments: (1) her act of introducing complainants to the Goce couple
does not fall within the meaning of illegal recruitment and placement under Article 13(b) in relation to Article 34 of the Labor Code; (2)
there is no proof of conspiracy to commit illegal recruitment among appellant and the Goce spouses; and (3) there is no proof that
appellant offered or promised overseas employment to the complainants. 22 These three arguments being interrelated, they will be
discussed together.
Herein appellant is accused of violating Articles 38 and 39 of the Labor Code. Article 38 of the Labor Code, as amended by Presidential
Decree No. 2018, provides that any recruitment activity, including the prohibited practices enumerated in Article 34 of said Code,
undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 thereof. The same
article further provides that illegal recruitment shall be considered an offense involving economic sabotage if any of these qualifying
circumstances exist, namely, (a) when illegal recruitment is committed by a syndicate, i.e., if it is carried out by a group of three or more
persons conspiring and/or confederating with one another; or (b) when illegal recruitment is committed in large scale, i.e., if it is
committed against three or more persons individually or as a group.
At the outset, it should be made clear that all the accused in this case were not authorized to engage in any recruitment activity, as
evidenced by a certification issued by Cecilia E. Curso, Chief of the Licensing and Regulation Office of the Philippine Overseas
Employment Administration, on November 10, 1987. Said certification states that Dan and Loma Goce and Nelly Agustin are neither
licensed nor authorized to recruit workers for overseas
employment. 23 Appellant does not dispute this. As a matter of fact her counsel agreed to stipulate that she was neither licensed nor
authorized to recruit applicants for overseas employment. Appellant, however, denies that she was in any way guilty of illegal
recruitment. 24
It is appellant's defensive theory that all she did was to introduce complainants to the Goce spouses. Being a neighbor of said couple,
and owing to the fact that her son's overseas job application was processed and facilitated by them, the complainants asked her to
introduce them to said spouses. Allegedly out of the goodness of her heart, she complied with their request. Such an act, appellant
argues, does not fall within the meaning of "referral" under the Labor Code to make her liable for illegal recruitment.
Under said Code, recruitment and placement refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or
procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for
profit or not; provided, that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons
shall be deemed engaged in recruitment and placement. 25 On the other hand, referral is the act of passing along or forwarding of an
applicant for employment after an initial interview of a selected applicant for employment to a selected employer, placement officer or
bureau. 26
Hence, the inevitable query is whether or not appellant Agustin merely introduced complainants to the Goce couple or her actions went
beyond that. The testimonial evidence hereon show that she indeed further committed acts constitutive of illegal recruitment. All four
prosecution witnesses testified that it was Agustin whom they initially approached regarding their plans of working overseas. It was from
her that they learned about the fees they had to pay, as well as the papers that they had to submit. It was after they had talked to her
that they met the accused spouses who owned the placement agency.
As correctly held by the trial court, being an employee of the Goces, it was therefore logical for appellant to introduce the applicants to
said spouses, they being the owners of the agency. As such, appellant was actually making referrals to the agency of which she was a
part. She was therefore engaging in recruitment activity. 27
Despite Agustin's pretensions that she was but a neighbor of the Goce couple, the testimonies of the prosecution witnesses paint a
different picture. Rogelio Salado and Dionisio Masaya testified that appellant represented herself as the manager of the Clover
Placement Agency. Ramona Salado was offered a job as a cutter/sewer by Agustin the first time they met, while Ernesto Alvarez
remembered that when he first met Agustin, the latter represented herself as "nagpapaalis papunta sa Oman." 28 Indeed, Agustin
played a pivotal role in the operations of the recruitment agency, working together with the Goce couple.
There is illegal recruitment when one gives the impression of having the ability to send a worker abroad." 29 It is undisputed that
appellant gave complainants the distinct impression that she had the power or ability to send people abroad for work such that the latter
were convinced to give her the money she demanded in order to be so employed. 30
It cannot be denied that Agustin received from complainants various sums for purpose of their applications. Her act of collecting from
each of the complainants payment for their respective passports, training fees, placement fees, medical tests and other sundry
expenses unquestionably constitutes an act of recruitment within the meaning of the law. In fact, appellant demanded and received
from complainants amounts beyond the allowable limit of P5,000.00 under government regulations. It is true that the mere act of a
cashier in receiving money far exceeding the amount allowed by law was not considered per se as "recruitment and placement" in
contemplation of law, but that was because the recipient had no other participation in the transactions and did not conspire with her co-
accused in defrauding the victims. 31 That is not the case here.
Appellant further argues that "there is no evidence of receipts of collections/payments from complainants to appellant." On the contrary,
xerox copies of said receipts/vouchers were presented by the prosecution. For instance, a cash voucher marked as Exhibit
D, 32 showing the receipt of P10,000.00 for placement fee and duly signed by appellant, was presented by the prosecution. Another
receipt, identified as Exhibit E, 33 was issued and signed by appellant on February 5, 1987 to acknowledge receipt of P4,000.00 from
Rogelio and Ramona Salado for "processing of documents for Oman." Still another receipt dated March 10, 1987 and presented in
evidence as Exhibit F, shows that appellant received from Ernesto Alvarez P2,000.00 for "processing of documents for Oman." 34
Apparently, the original copies of said receipts/vouchers were lost, hence only xerox copies thereof were presented and which, under
the circumstances, were admissible in evidence. When the original writing has been lost or destroyed or cannot be produced in court,
upon proof of its execution and loss or destruction, or unavailability, its contents may be proved by a copy or a recital of its contents in
some authentic document, or by the recollection of witnesses. 35
Even assuming arguendo that the xerox copies presented by the prosecution as secondary evidence are not allowable in court, still the
absence thereof does not warrant the acquittal of appellant. In People vs.  Comia, 36where this particular issue was involved, the Court
held that the complainants' failure to ask for receipts for the fees they paid to the accused therein, as well as their consequent failure to
present receipts before the trial court as proof of the said payments, is not fatal to their case. The complainants duly proved by their
respective testimonies that said accused was involved in the entire recruitment process. Their testimonies in this regard, being clear
and positive, were declared sufficient to establish that  factum probandum.
Indeed, the trial court was justified and correct in accepting the version of the prosecution witnesses, their statements being positive
and affirmative in nature. This is more worthy of credit than the mere uncorroborated and self-serving denials of appellant. The lame
defense consisting of such bare denials by appellant cannot overcome the evidence presented by the prosecution proving her guilt
beyond reasonable doubt. 37
The presence of documentary evidence notwithstanding, this case essentially involves the credibility of witnesses which is best left to
the judgment of the trial court, in the absence of abuse of discretion therein. The findings of fact of a trial court, arrived at only after a
hearing and evaluation of what can usually be expected to be conflicting testimonies of witnesses, certainly deserve respect by an
appellate court. 38 Generally, the findings of fact of the trial court on the matter of credibility of witnesses will not be disturbed on
appeal. 39
In a last-ditch effort to exculpate herself from conviction, appellant argues that there is no proof of conspiracy between her and the
Goce couple as to make her liable for illegal recruitment. We do not agree. The evidence presented by the prosecution clearly establish
that appellant confabulated with the Goces in their plan to deceive the complainants. Although said accused couple have not been tried
and convicted, nonetheless there is sufficient basis for appellant's conviction as discussed above.
In People vs. Sendon, 40 we held that the non-prosecution of another suspect therein provided no ground for the appellant concerned to
fault the decision of the trial court convicting her. The prosecution of other persons, equally or more culpable than herein appellant, may
come later after their true identities and addresses shall have been ascertained and said malefactors duly taken into custody. We see
no reason why the same doctrinal rule and course of procedure should not apply in this case.
WHEREFORE, the appealed judgment of the court a quo is hereby AFFIRMED in toto, with costs against accused-appellant Nelly D.
Agustin.
SO ORDERED.
Narvasa, C.J., Puno, Mendoza and Francisco, JJ., concur.
 
G.R. No. 120835-40 April 10, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
TAN TIONG MENG alias "TOMMY TAN", accused-appellant.

PADILLA, J.:

Accused-appellant Tan Tiong Meng alias "Tommy Tan" was charged with Illegal Recruitment in Large Scale and six (6) counts of
estafa.

The information for large scale illegal recruitment reads:

That on or about the period comprising June 1993 to August, 1993, in the City of Cavite, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, using a business name RAINBOW SIM FACTORY, a private
employment recruiting agency, and misrepresenting himself to have the capacity to contract, enlist and transport Filipino workers for
employment abroad with the ability to facilitate the issuance and approval of the necessary papers in connection therewith, when in fact
he did not possess the authority or license from the Philippine Overseas Employment Administration to do so, did, then and there,
wilfully, unlawfully and knowingly for a fee, recruit in a large scale and promise employment in Taiwan to the following persons, to wit:

Ernesto Orcullo y Nicolas — P15,000.00

Manuel Latina y Nicanor — P15,000.00
Neil Mascardo y Guiraldo — P15,000.00
Librado C. Pozas — P15,000.00
Edgardo Tolentino y Vasquez — P15,000.00
Cavino Asiman — P15,000.00

as in fact, the said persons gave and delivered the abovestated amount, respectively, to the herein accused who know fully well that the
aforesaid persons could not be sent to Taiwan, to the damage and prejudice of said aforementioned private complainants. 1

The informations for estafa aver substantially the same allegations as follows:

In Criminal Case No. 277-93:

That on or about June 7, 1993, in the City of Cavite, Republic of the Philippines and within the jurisdiction of this Honorable Court, the
above-named accused by means of false representations that he can secure an employment in Taiwan for Ernesto Orcullo y Nicolas as
a factory worker induced the latter to entrust to him the amount of P15,000.00, in consideration of the promised employment, but the
herein accused, once in possession of the amount, with intent to defraud, with grave abuse of confidence and without fulfilling his
promise, did, then and there, wilfully, unlawfully and knowingly, misapply, misappropriate and convert the same to his own personal use
and benefit and notwithstanding repeated demands made upon him for the return of the amount, accused herein failed and refused to
do so, to the damage and prejudice of Ernesto Orcullo y Nicolas in the amount of P15,000.00, Philippine Currency.2

The other informations for estafa involve the following complainants and amounts

1) Neil Mascardo — P15,000.00

2) Manuel Latina — P15,000.00

3) Ricardo Grepo — P20,000.00

4) Librado Pozas — P15,000.00

5) Gavino Asiman — P15,000.00

Accused-appellant pleaded not guilty to all the informations and all seven (7) cases were tried jointly.

On 12 May 1995, the Regional Trial Court, Branch 88, Cavite City rendered a decision * the dispositive part of which reads:

WHEREFORE, judgment is hereby rendered as follows:

1. In Criminal Case No. 278-93, the Court finds the accused GUILTY beyond reasonable doubt of the crime of illegal recruitment
in large scale defined and penalized under Article 38 of the Labor Code, as amended in relation to Article 39 thereof, and hereby
sentences him to a penalty of life imprisonment, and to pay a fine of P100,000, without subsidiary imprisonment in case of insolvency;

2. In Criminal Case No. 277-93, the Court finds the accused GUILTY beyond reasonable doubt of the crime of Estafa defined
and penalized under Article 315 (2) (a) of the Revised Penal Code and hereby sentences him to a penalty of imprisonment of two (2)
years as minimum, to six (6) years as the maximum; and to pay ERNESTO ORCULLO the sum of P15,000 as actual damages and
P15,000 as moral and exemplary damages;

3. In Criminal Case No. 279-93, the Court finds the accused GUILTY beyond reasonable doubt of the crime of Estafa defined
and penalized under Article 315 (2) (a) of the Revised Penal Code, and hereby sentences him to a penalty of imprisonment of two (2)
years as minimum, to six (6) years as the maximum, and to pay NEIL MASCARDO the sum of P15,000 as actual damages and
P15,000 as moral and exemplary damages;

4. In Criminal Case No. 280-93, the Court finds the accused GUILTY beyond reasonable doubt of the crime of Estafa defined
and penalized under Article 315 (2) (a) of the Revised Penal Code and hereby sentences him to a penalty of imprisonment of two (2)
years as minimum, to six (6) years as maximum; and to pay MANUEL LATINA the sum of P15,000 as actual damages, and P15,000 as
moral and exemplary damages;

5. In Criminal Case No. 343-93, the Court finds the accused GUILTY beyond reasonable doubt of the crime of Estafa defined
and penalized under Article 315 (2) (a) of the Revised Penal Code, and hereby sentences him to a penalty of imprisonment of two (2)
years as minimum, to six (6) years as maximum; and to pay RICARDO GREPO the sum of P20,000 as actual damages and P20,000
as moral and exemplary damages;

6. In Criminal Case No. 365-93, the Court finds the accused GUILTY beyond reasonable doubt of the crime of Estafa defined
and penalized under Article 315 (2) (a) of the Revised Penal Code, and hereby sentences him to a penalty of imprisonment of two (2)
years as minimum, to six (6) years as maximum and to pay LIBRADO POZAS the sum of P15,000 as actual damages and P15,000 as
moral and exemplary damages;

7. In Criminal Case No. 371-93, the Court finds the accused GUILTY beyond reasonable doubt of the crime of Estafa defined
and penalized under Article 315 (2) (a) of the Revised Penal Code, and hereby sentences him to a penalty of imprisonment of two (2)
years as minimum, to six (6) years as maximum; and to pay GAVINO ASIMAN the sum of P15,000 as actual damages and P15,000 as
moral and exemplary damages.

In addition to the foregoing penalties, the accused being an alien, shall be deported without further proceedings after service of
sentence.

In the service of his sentence, the accused shall be credited with the full time during which he underwent preventive imprisonment,
provided he voluntarily agreed in writing to abide by the same disciplinary rules imposed upon convicted prisoners, otherwise, he shall
be credited with only four-fifths (4/5) thereof (Article 29, RPC, as amended by RA No. 6127 and BP Blg. 85)

SO ORDERED.3

On appeal to this Court, accused-appellant assigns a single error allegedly committed by the trial court, thus:

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE OFFENSE
OF ILLEGAL RECRUITMENT IN A LARGE SCALE UNDER CRIMINAL CASE NO. 278-93 AND ESTAFA IN CRIMINAL CASE NOS.
277-93, 279-93, 280-93, 343-93, 365-93, AND 371-93. 4

The case for the prosecution averred the following facts:

Gavino Asiman testified that a certain Jose Percival Borja who was a friend of his relative informed him that a job recruiter would be at
Borja's house at Capt. Villareal St., Cavite City, in case anyone was interested in an overseas job in Taiwan. Asiman further recalled
that on 18 August 1993, he and his friend, Librado Pozas went to Borja's house where they met the accused-appellant who told them
he could get them jobs as factory workers in Taiwan with a monthly salary of P20,000.00. Accused-appellant required them to submit
their passport, bio-data and their high school diploma as well as to pay P15,00000 each for placement and processing fees. The former
issued two (2) receipts which he signed in the presence of Asiman and Pozas. 5 Accused-appellant assured them that they could leave
for Taiwan twelve (12) days later. Asiman stated that they filed the complaints for illegal recruitment when they learned that accused-
appellant was arrested for illegal recruitment activities.

Librado Pozas corroborated the testimony of Asiman. He added that Borja had no participation in the offense as his house was merely
used as a meeting place by accused-appellant.

Neil Mascardo testified that he met accused-appellant through a friend and also through Jose Borja. Mascardo narrated that on 7 July
1993, he went to Borja's house to meet accused-appellant who assured him of getting him an employment in Taiwan at the Rainbow
Ship Co., a marble and handicraft factory with a monthly salary of P20,000.00. He further testified that he paid P15,000.00 to accused-
appellant for placement and processing fees as shown by a receipt signed by accused-appellant. 6 Accused-appellant first told him he
could leave on 15 July 1993. When he later inquired about his departure date, accused-appellant told him he could leave by the end of
July 1993. After July, accused-appellant told him he would leave on 15 August 1993 together with his uncle Manuel Latina. When he
failed to leave on the last mentioned date and accused-appellant told him he would leave on 28 August 1993, Mascardo told accused-
appellant he wanted his money back. Accused-appellant told him that a refund was not possible since he had already sent the money
to his brother-in-law in Taiwan Mascardo decided to file a complaint for illegal recruitment on 28 August 1993 On 31 August 1993, he,
Manuel Latina and Ernesto Orcullo went to the Philippine Overseas Employment Administration (POEA) where they found out that
accused-appellant was not a licensed or authorized overseas recruiter.
Ricardo Grepo testified that on 11 August 1993, he went to Borja's house where he met with accused-appellant who received from him
P15,000.00 for placement and processing fees. Accused-appellant told him he could get a job as a factory worker in Taiwan with a
monthly salary of P20,000.00 Accused-appellant gave him a signed typewritten receipt 7 and assured him he could leave for Taiwan on
28 August 1993. Accused-appellant later told him that his visa was not yet ready and he thereafter learned from Jose Borja that
accused-appellant had been arrested for illegal recruitment activities. Grepo filed his complaint on 30 August 1993.

Lucita Mascardo-Orcullo testified that she is the wife of Ernesto Orcullo, one of the complainants. She stated that on 7 June 1993, she
went with her husband to Borja's house where they gave Ernesto's passport and other papers to accused-appellant who assured them
that Ernesto could get a job as a factory worker in Taiwan. Lucita further averred that they paid P15,000.00 to accused-appellant for
placement and processing fees as shown by a receipt signed by accused-appellant. 8

Dionisa Latina testified that she is the wife of complainant Manuel Latina. She stated that on 9 June 1993, she and her husband went to
Borja's house to meet accused-appellant who told them that Manuel could get a job at a toy factory in Taiwan. They paid P15,000.00 to
accused-appellant who issued a receipt 9 and assured them Manuel could leave on 30 June 1993. After said date, accused-appellant
kept on promising them that Manuel would be able to leave for Taiwan. The promises were never fulfilled.

Angelina de Luna, a Senior Labor Employment Officer of the POEA, testified that their office received a subpoena from the trial court
requiring the issuance of a certification stating whether or not Tan Tiong Meng alias Tommy Tan was authorized by the POEA to recruit
workers for overseas employment. De Luna presented a certification signed by Ma. Salome S. Mendoza, Chief, Licensing Branch of the
POEA dated 7 July 1994 stating that accused-appellant is neither licensed nor authorized by the POEA to recruit workers for overseas
employment. 10

Accused-appellant Tan Tiong Meng alias Tommy Tan was the only witness for the defense. He testified that he is a Singaporean
national married to Estelita Oribiana, a Filipino-Chinese. He added that he works as a sales representative for Oribiana Laboratory
Supplies, a company owned by his brother-in-law which sells laboratory equipment to various schools in Cavite.

Tan alleged that Jose Percival Borja was introduced to him by a certain Malou Lorenzo at the office of their laboratory supplies in Sta.
Cruz, Manila Lorenzo allegedly told him that Borja needed his help in processing job applications for abroad. When he talked to Borja,
the latter told him that he could help in convincing applicants that they could work in Taiwan. Borja offered him a P1,000.00 commission
from the amount paid by each applicant.

Tan admitted having received money from all the complainants but he said that all the money was turned over to Borja after deducting
his commission. Tan likewise admitted that he and his wife are respondents in about seventy (70) cases of estafa and illegal
recruitment but that it was Lorenzo who was the main recruiter.

The prosecution presented Jose Percival Borja as a rebuttal witness. Borja testified that Tan was introduced to him by Malou Lorenzo.
Accused-appellant told him that they were direct recruiters for jobs in Taiwan and that he has relatives there. Tan's offer was attractive
considering that he charged only P15,000.00 while the prevailing rate for job placements was P45,000.00-P60,000.00. Borja added that
he even told his friends and relatives to apply with accused-appellant. Tan had told him that he sometimes comes to Cavite to deliver
laboratory equipment. When Tan called him up to tell him he was in the area, Borja told him to come to his house. It was at his house
where Tan accepted money from several job applicants most of whom he (Borja) did not know. When Borja realized that Tan had
cheated the applicants, he helped set up a trap and had Tan arrested by his neighbor Tony Guinto, a Cavite City policeman. Borja later
learned that Tan had victimized several people in Batangas and Metro Manila.

In the present appeal, accused-appellant would have the Court believe that he merely acted as a collector of money for the principal
recruiter Borja who made the representations that he (Tan) could give the applicants jobs in Taiwan. He maintains that he merely
received commissions from the transactions and that the deceit was employed not by him but by Borja who introduced him as a job
recruiter.

The Court is not impressed by such bizarre pretensions.

Several revealing circumstances belie the version for the defense, namely

1. Neil Mascardo testified that accused-appellant told him he could no longer return his money because he had already sent it to
his brother-in-law Lee Shut Kua in Taiwan;

2. All the receipts issued to complainants were signed by accused-appellant;

3. Tan admitted that he and his wife are respondents in about seventy (70) cases for estafa and illegal recruitment in Batangas;
11

4. Tan executed a sworn statement dated 13 September 1993 before SP02 Eduardo G. Nover, Jr. in the presence of his lawyer
Atty. Florendo C. Medina wherein he admitted receiving P15,000.00 from Gavino Asiman; 12

5. The complainants all pointed to Tan and not Borja as the one who had represented to them that he could give them jobs in
Taiwan.
There is no showing that any of the complainants had ill-motives against Tan other than to bring him to the bar of justice. The
testimonies of the witnesses for the prosecution were straight-forward, credible and convincing. The constitutional presumption of
innocence in Tan's favor has been overcome by proof beyond reasonable doubt and we affirm his convictions.

The Labor Code defines recruitment and placement thus:

(A)ny act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract
services, promising or advertising for employment, locally or abroad, whether for profit or not; Provided, that any person or entity which,
in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and
placement. 13

It is clear that accused-appellant's acts of accepting placement fees from job applicants and representing to said applicants that he
could get them jobs in Taiwan constitute recruitment and placement under the above provision of the Labor Code.

The Labor Code prohibits any person or entity, not authorized by the POEA, from engaging in recruitment and placement activities thus:

(a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by
non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this Code . . . .

(b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic
sabotage and shall be penalized in accordance with Article 39 hereof.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or
confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first
paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or
as a group. 14

The POEA having certified that accused-appellant is not authorized to recruit workers for overseas employment, it is clear that the
offense committed against the six (6) complainants in this case is illegal recruitment in large scale punishable under Article 39 (a) of the
Labor Code with life imprisonment and a fine of One Hundred Thousand Pesos (P100,000.00).

Accused-appellant's guilt of six (6) separate crimes of estafa has likewise been proven

The argument that the deceit was employed by Jose Percival Borja and not by accused-appellant is specious, even ridiculous. All the
complainants agreed that it was accused-appellant Tan who assured them of jobs in Taiwan. The assurances were made intentionally
to deceive the would-be job applicants to part with their money.

In People v. Calonzo, 15 the Court reiterated the rule that a person convicted for illegal recruitment under the Labor Code can be
convicted for violation of the Revised Penal Code provisions on estafa provided the elements of the crime are present. In People v.
Romero 16 the elements of the crime were stated thus:

a) that the accused defrauded another by abuse of confidence or by means of deceit, and

b) that damage or prejudice capable of pecuniary estimation is caused to the offended party or third person.

Both elements have been proven in this case.

One final point. The names of a certain Malou Lorenzo and Chit Paulino have been mentioned by accused-appellant as being illegal
recruiters whom he contends are either the main recruiters or their agents. It also appears that accused-appellant's wife Estelita
Oribiana who is a co-accused in the other illegal recruitment complaints may be a part of a large syndicate operating in Batangas,
Cavite and Metro Manila. There is nothing on the record to show that attempts were made to investigate these three (3) people

The campaign and drive against illegal recruiters should be continuous and unrelenting. Government should not be content with
bringing to justice but a number of these diabolic denizens of society who thrive on the dreams of our countrymen of having a better life.
Only when the last of their tribe has been convicted and punished can the government rightfully claim that it has fulfilled the
constitutional mandate to protect the rights and promote the welfare of workers. 17

WHEREFORE, the judgment appealed from finding accused-appellant Tan Tiong Meng alias "Tommy Tan" guilty of illegal recruitment
in large scale and six (6) counts of estafa, is hereby AFFIRMED. Costs against accused-appellant.

SO ORDERED.
G.R. 146946
Rosa C. Rodolfo vs. People of the Philippines

Petitioner was charged before the Regional Trial Court (RTC) of Makati for illegal recruitment alleged to have been committed
as follows:
 
That in or about and during the period from August to September 1984, in Makati, Metro Manila, Philippines,
and within the jurisdiction of this Honorable Court, the said accused representing herself to have the capacity to
contract, enlist and transport Filipino workers for employment abroad, did then and there willfully and unlawfully, for a
fee, recruit and promise employment/job placement abroad to VILLAMOR ALCANTARA, NARCISO CORPUZ,
[1]
 NECITAS R. FERRE, GERARDO H. TAPAWAN and JOVITO L. CAMA, without first securing the required license
or authority from the Ministry of Labor and Employment.[2]
 
 
After trial on the merits, Branch 61 of the Makati RTC rendered its Judgment on the case,[3] the decretal portion of which reads:
 
WHEREFORE, PREMISES ABOVE CONSIDERED, the Court finds the accused ROSA C. RODOLFO as
GUILTY of the offense of ILLEGAL RECRUITMENT and hereby sentences her [to] a penalty of imprisonment of
EIGHT YEARS and to pay the costs.[4] (Underscoring supplied)
 
In so imposing the penalty, the trial court took note of the fact that while the information reflected the commission of illegal
recruitment in large scale, only the complaint of the two of the five complainants was proven.
 
On appeal, the Court of Appeals correctly synthesized the evidence presented by the parties as follows:
 
[The evidence for the prosecution] shows that sometime in August and September 1984, accused-
appellant approached private complainants Necitas Ferre and Narciso Corpus individually and invited them to apply
for overseas employment in Dubai. The accused-appellant being their neighbor, private complainants agreed and
went to the formers office. This office which bore the business name Bayside Manpower Export Specialist was in a
building situated at Bautista St. Buendia, Makati, Metro Manila. In that office, private complainants gave certain
amounts to appellant for processing and other fees. Ferre gave P1,000.00 as processing fee (Exhibit A) and
another P4,000.00 (Exhibit B). Likewise, Corpus gave appellant P7,000.00 (Exhibit D). Appellant then told private
complainants that they were scheduled to leave for Dubai on September 8, 1984. However, private complainants and
all the other applicants were not able to depart on the said date as their employer allegedly did not arrive. Thus, their
departure was rescheduled to September 23, but the result was the same. Suspecting that they were being
hoodwinked, private complainants demanded of appellant to return their money. Except for the refund of P1,000.00 to
Ferre, appellant was not able to return private complainants money. Tired of excuses, private complainants filed the
present case for illegal recruitment against the accused-appellant.
 
To prove that accused-appellant had no authority to recruit workers for overseas employment, the prosecution
presented Jose Valeriano, a Senior Overseas Employment Officer of the Philippine Overseas Employment Agency
(POEA), who testified that accused-appellant was neither licensed nor authorized by the then Ministry of Labor and
Employment to recruit workers for overseas employment.
 
For her defense, appellant denied ever approaching private complainants to recruit them for employment
in Dubai. On the contrary, it was the private complainants who asked her help in securing jobs abroad. As a good
neighbor and friend, she brought the private complainants to the Bayside Manpower Export Specialist agency
because she knew Florante Hinahon,[5] the owner of the said agency. While accused-appellant admitted that she
received money from the private complainants, she was quick to point out that she received the same only in trust for
delivery to the agency. She denied being part of the agency either as an owner or employee thereof. To corroborate
appellants testimony, Milagros Cuadra, who was also an applicant and a companion of private complainants, testified
that appellant did not recruit them. On the contrary, they were the ones who asked help from appellant. To further
bolster the defense, Eriberto C. Tabing, the accountant and cashier of the agency, testified that appellant is not
connected with the agency and that he saw appellant received money from the applicants but she turned them over
to the agency through either Florantino Hinahon or Luzviminda Marcos.[6] (Emphasis and underscoring supplied)
 
In light thereof, the appellate court affirmed the judgment of the trial court but modified the penalty imposed due to the trial courts failure
to apply the Indeterminate Sentence Law.
 
The appellate court thus disposed:
 
 
WHEREFORE, finding no merit in the appeal, this Court DISMISSES it and AFFIRMS the appealed
Decision EXCEPT the penalty x x x which is hereby changed to five (5) years as minimum to seven (7) years as
 maximum with perpetual disqualification from engaging in the business of recruitment and placement of workers.
[7]
 (Underscoring supplied)
 
 
 
 
Petitioners Motion for Reconsideration having been denied,[8] the present petition was filed, faulting the appellate court
 
I
 
x x x IN GIVING CREDENCE TO THE TESTIMONIES OF THE COMPLAINING WITNESSES, [AND]
 
II
 
x x x IN FINDING THE PETITIONER-ACCUSED GUILTY WHEN THE PROSECUTION FAILED TO PROVE HER
GUILT BEYOND REASONABLE DOUBT.[9] (Underscoring supplied)
 
 
Petitioner bewails the failure of the trial court and the Court of Appeals to credit the testimonies of her witnesses, her
companion Milagros Cuadra, and Eriberto C. Tabing who is an accountant-cashier of the agency.
 
Further, petitioner assails the trial courts and the appellate courts failure to consider that the provisional receipts she issued
indicated that the amounts she collected from the private complainants were turned over to the agency through Minda Marcos and
Florante Hinahon. At any rate, she draws attention to People v. Seoron[10] wherein this Court held that the issuance or signing of receipts
for placement fees does not make a case for illegal recruitment.[11]
The petition fails.
 
 
Articles 38 and 39 of the Labor Code, the legal provisions applicable when the offense charged was committed,[12] provided:
 
ART. 38. Illegal Recruitment. (a) Any recruitment activities, including the prohibited practices enumerated under
Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and
punishable under Article 39 of this Code. x x x
 
Article 39. Penalties. x x x x
 
(c) Any person who is neither a licensee nor a holder of authority under this Title found violating any provision
thereof or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not
less than four years nor more than eight years or a fine of not less than  P20,000 nor more than P100,000 or both such
imprisonment and fine, at the discretion of the court;
 
x x x x (Underscoring supplied)
 
 
 
The elements of the offense of illegal recruitment, which must concur, are: (1) that the offender has no valid license or authority
required by law to lawfully engage in recruitment and placement of workers; and (2) that the offender undertakes any activity within the
meaning of recruitment and placement under Article 13(b), or any prohibited practices enumerated under Article 34 of the Labor Code.
[13]
 If another element is present  that the accused commits the act against three or more persons, individually or as a group, it
becomes an illegal recruitment in a large scale.[14]
 
Article 13 (b) of the Labor Code defines recruitment and placement as [a]ny act of canvassing, enlisting, contracting,
transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment,
locally or abroad, whether for profit or not. (Underscoring supplied)
That the first element is present in the case at bar, there is no doubt. Jose Valeriano, Senior Overseas Employment Officer of
the Philippine Overseas Employment Administration, testified that the records of the POEA do not show that petitioner is authorized to
recruit workers for overseas employment.[15] A Certification to that effect was in fact issued by Hermogenes C. Mateo, Chief of the
Licensing Division of POEA.[16]
 
Petitioners disclaimer of having engaged in recruitment activities from the very start does not persuade in light of the evidence
for the prosecution. In People v. Alvarez, this Court held:
 
Appellant denies that she engaged in acts of recruitment and placement without first complying with the
guidelines issued by the Department of Labor and Employment. She contends that she did not possess any license for
recruitment, because she never engaged in such activity.
 
We are not persuaded. In weighing contradictory declarations and statements, greater weight must be given to
the positive testimonies of the prosecution witnesses than to the denial of the defendant. Article 38 (a) clearly shows that
illegal recruitment is an offense that is essentially committed by a non-licensee or non-holder of authority. A non-
 licensee means any person, corporation or entity to which the labor secretary has not issued a valid license or authority
to engage in recruitment and placement; or whose license or authority has been suspended, revoked or cancelled by the
POEA or the labor secretary. A license authorizes a person or an entity to operate a private employment agency, while
authority is given to those engaged in recruitment and placement activities.
 
xxxx
 
That appellant in this case had been neither licensed nor authorized to recruit workers for overseas
employment was certified by Veneranda C. Guerrero, officer-in-charge of the Licensing and Regulation Office; and Ma.
Salome S. Mendoza, manager of the Licensing Branch both of the Philippine Overseas Employment Administration. Yet,
as complainants convincingly proved, she recruited them for jobs in Taiwan.[17] (Italics in the original; underscoring
supplied)
 
 
The second element is doubtless also present. The act of referral, which is included in recruitment, [18] is the act of passing along
or forwarding of an applicant for employment after an initial interview of a selected applicant for employment to a selected employer,
placement officer or bureau.[19] Petitioners admission that she brought private complainants to the agency whose owner she knows and
her acceptance of fees including those for processing betrays her guilt.
 
That petitioner issued provisional receipts indicating that the amounts she received from the private complainants were turned
over to Luzviminda Marcos and Florante Hinahon does not free her from liability. For the act of recruitment may be for profit or not. It is
sufficient that the accused promises or offers for a fee employment to warrant conviction for illegal recruitment. [20] As the appellate court
stated:
 
x x x Sec. 13(b) of P.D. 442 [The Labor Code] does not require that the recruiter receives and keeps the placement
money for himself or herself. For as long as a person who has no license to engage in recruitment of workers for
overseas employment offers for a fee an employment to two or more persons, then he or she is guilty of illegal
recruitment.[21]
Parenthetically, why petitioner accepted the payment of fees from the private complainants when, in light of her claim that she
merely brought them to the agency, she could have advised them to directly pay the same to the agency, she proferred no explanation.
 
 
 
 
On petitioners reliance on Seoron,[22] true, this Court held that issuance of receipts for placement fees does not make a case for
illegal recruitment. But it went on to state that it is rather the undertaking of recruitment activities without the necessary license or
authority that makes a case for illegal recruitment.[23]
 
A word on the penalty. Indeed, the trial court failed to apply the Indeterminate Sentence Law which also applies to offenses
punished by special laws.
 
Thus, Section 1 of Act No. 4103 (AN ACT TO PROVIDE FOR AN INDETERMINATE SENTENCE AND PAROLE FOR ALL
PERSONS CONVICTED OF CERTAIN CRIMES BY THE COURTS OF THE PHILIPPINE ISLANDS; TO CREATE A BOARD OF
INDETERMINATE SENTENCE AND TO PROVIDE FUNDS THEREFOR; AND FOR OTHER PURPOSES) provides:
 
SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code,
or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which
shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said
Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for
the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be
less than the minimum term prescribed by the same. (As amended by Act No. 4225) (Underscoring supplied)
 
While the penalty of imprisonment imposed by the appellate court is within the prescribed penalty for the offense, its addition of
perpetual disqualification from engaging in the business of recruitment and placement of workers is not part thereof. Such additional
penalty must thus be stricken off.
 
WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals are AFFIRMEDwith
MODIFICATION in that the accessory penalty imposed by it consisting of perpetual disqualification from engaging in the business of
recruitment and placement of workers is DELETED.
 
Costs against petitioner.
 
SO ORDERED.
G.R. No. 173473
PEOPLE OF THE PHILIPPINES,  Appellee,
- versus - 
BETH TEMPORADA, Appellant.  Promulgated: December 17, 2008
x ---------------------------------------------------------------------------------------- x
 
DECISION
 
YNARES-SANTIAGO, J.:
 
 
Before us for review is the February 24, 2006 Decision [1] of the Court of Appeals (CA), affirming with modification the May 14,
2004 Decision[2] of the Regional Trial Court (RTC) of Manila, Branch 33, convicting accused-appellant Beth Temporada of the crime of
large scale illegal recruitment, or violation of Article 38 of the Labor Code, as amended, and five (5) counts of estafa under Article 315,
par. (2)(a) of the Revised Penal Code (RPC).
 
The antecedents, as found by the appellate court, are as follows:
 
From September 2001 to January 2002, accused Rosemarie Baby Robles, Bernadette Miranda, Nenita
Catacotan and Jojo Resco and appellant Beth Temporada, all employees of the Alternative Travel and Tours
Corporation (ATTC), recruited and promised overseas employment, for a fee, to complainants Rogelio Legaspi, Jr. as
technician in Singapore, and Soledad Atle, Luz Minkay, Evelyn Estacio and Dennis Dimaano as factory workers in
Hongkong. The accused and appellant were then holding office at Dela Rosa Street, Makati City but eventually
transferred business to Discovery Plaza, Ermita, Manila. After complainants had submitted all the requirements
consisting of their respective application forms, passports, NBI clearances and medical certificates, the accused and
appellant, on different dates, collected and received from them placement fees in various amounts, viz: a) from
Rogelio Legaspi, Jr. 57,600.00; b) from Dennis Dimaano P66,520.00; c) from Evelyn Estacio P88,520.00; d) from
Soledad Atle P69,520.00 and e) from Luz Minkay P69,520.00. As none of them was able to leave nor recover the
amounts they had paid, complainant lodged separate criminal complaints against accused and appellant before the
City Prosecutor of Manila. On November 29, 2002, Assistant City Prosecutor Restituto Mangalindan, Jr. filed six (6)
Informations against the accused and appellant, one for Illegal Recruitment in Large Scale under Article 38 (a) of the
Labor Code as amended, and the rest for five (5) counts of estafa under Article 315 paragraph 2 (a) of the Revised
Penal Code.
 
The Information for large scale illegal recruitment reads:
 
Criminal Case No. 02-208371:
 
The undersigned accuses ROSEMARIE BABY ROBLES, BERNADETTE M. MIRANDA, BETH
TEMPORADA, NENITA CATACOTAN and JOJO RESCO x x x.
 
That in or about and during the period comprised between the months of September 2001 and
January 2002, inclusive, in the City of Manila, Philippines, the said accused, representing
themselves to have the power and capacity to contract, enlist and transport Filipino workers for
employment abroad, did then and there willfully, unlawfully for a fee, recruit and promise
employment to REGELIO A. LEGASPI, JR., DENNIS T. DIMAANO, EVELEYN V. ESTACIO,
SOLEDAD B. ATTE and LUZ MINKAY without first having secured the required license from the
Department of Labor and Employment as required by law, and charge or accept directly or
indirectly from said complainant[s] the amount of PH57,600.00, PH66,520.00, PH88,520.00,
PH69,520.00, PH69,520.00, respectively, as placement fees in consideration for their overseas
employment, which amounts are in excess of or greater than that specified in the scheduled of
allowable fees prescribed of the POEA and without reasons and without fault of the said
complainants, failed to actually deploy them and failed to reimburse them the expenses they
incurred in connection with the documentation and processing of their papers for purposes of their
deployment.
 
Contrary to law.
 
Except for the name of private complainant and the amount involved, the five (5) Informations for estafa contain
substantially identical averments as follows:
 
Criminal Case No. 02-208372:
 
 The undersigned accuses ROSEMARIE BABY ROBLES, BERNADETTE M. MIRANDA, BETH
TEMPORADA, NENITA CATACOTAN and JOJO RESCO x x x.
 
That in or about and during the period comprised between November 23, 2001 and January 12,
2002, inclusive, in the City of Manila, Philippines, the said accused, conspiring and confederating
together and helping one another, did then and there willfully, unlawfully and feloniously defraud
ROGELIO A. LEGASPI, JR., in the following manner, to wit: the said accused, by means of false
manifestations and fraudulent representations which they made to said ROGELIO A. LEGASPI,
JR., prior to and even simultaneous with the commission of the fraud, to the effect that they have
the power and capacity to recruit and employ ROGELIO A. LEGASPI, JR., as technician in
Singapore and could facilitate the processing of the pertinent papers if given the necessary amount
to meet the requirements thereof, induced and succeeded in inducing said ROGELIO A. LEGASPI,
JR., to give and deliver, as in fact he gave and delivered to said accused the amount of P57,600.00
on the strength of said manifestations and representations said accused well knowing that the
same were false and fraudulent and were made solely for the purpose of obtaining, as in fact they
did obtain the amount of P57,600.00, which amount, once in their possession, with intend to
defraud, they willfully, unlawfully and feloniously misappropriated, misapplied and converted the
same to their own personal use and benefit, to the damage and prejudice of said ROGELIO A.
LEGASPI, JR. in the aforesaid amount of P57,000.00 Philippine Currency.
 
Contrary to law.
 
The other four (4) Informations for estafa involve the following complainants and amounts:
 
1. DENNIS T. DIMAANO P66,520.00
2. EVELYN V. ESTACIO P88,520.00
3. SOLEDAD B. ATLE P69,520.00
4. LUZ T. MINKAY P69,520.00[3]
 
Only appellant was apprehended and brought to trial, the other accused remained at large. Upon arraignment, appellant pleaded not
guilty and trial on the merits ensued. After joint trial, on May 14, 2004, the RTC rendered judgment convicting appellant of all the
charges:
 
WHEREFORE, the prosecution having established the GUILT of accused Beth Temporada BEYOND
REASONABLE DOUBT, judgment is hereby rendered CONVICTING the said accused, as principal of the offenses
charged and she is sentenced to suffer the penalty of LIFE IMPRISONMENT and a fine of Five Hundred Thousand
Pesos (P500,000.00) for illegal recruitment; and the indeterminate penalty of four (4) years and two (2) months of
prision correctional as minimum, to nine (9) years and one (1) day of prision mayor, as maximum for
the estafa committed against complainant Rogelio A. Legaspi, Jr.; the indeterminate penalty of four (4) years and two
(2) months of prision correctional as minimum to ten (10) years and one day of prision mayor as maximum each for
the estafas committed against complainants, Dennis Dimaano, Soledad B. Atte and Luz T. Minkay; and the
indeterminate penalty of four (4) years and two (2) months of prision correctional as minimum, to eleven (11) years
and one (1) day of prision mayor as maximum for the estafa committed against Evelyn Estacio.
 
The accused is also ordered to pay jointly and severally the complainants actual damages as follows:
 
1. Rogelio A. Legaspi Jr. P57,600.00
2. Dennis T. Dimaano 66,520.00
3. Evelyn V. Estacio 88,520.00
4. Soledad B. Atte 66,520.00
5. Luz T. Minkay 69,520.00
 
SO ORDERED.[4]
 
In accordance with the Courts ruling in People v. Mateo,[5] this case was referred to the CA for intermediate review. On February 24,
2006, the CA affirmed with modification the Decision of the RTC:
 
WHEREFORE, with MODIFICATION to the effect that in Criminal Cases Nos. 02-208373, 02-208375, & 02-
208376, appellant is sentenced to suffer the indeterminate penalty of six (6) years of prision correccional maximum,
as minimum, to ten (10) years and one (1) day of prision mayor maximum, as maximum; and in Criminal Case No.
02-208374, she is sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of  prision mayor
medium, as minimum, to twelve (12) years and one (1) day ofreclusion temporal minimum, as maximum, the
appealed decision is AFFIRMED in all other respects.[6]
 
Before this Court, appellant ascribes the lone error that the trial court gravely erred in finding her guilty of illegal recruitment
and five (5) counts of estafadespite the insufficiency of the evidence for the prosecution.
 
We affirm the Decision of the CA, except as to the indeterminate penalties imposed for the five (5) counts of estafa.
 
Article 13(b) of the Labor Code defines recruitment and placement thusly:
 
ART. 13. Definitions. x x x
 
(b) Recruitment and placement refers to any act of canvassing, enlisting, contracting, transporting, utilizing,
hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally
or abroad, whether for profit or not: Provided, That any person or entity which, in any manner, offers or promises for a
fee, employment to two or more persons shall be deemed engaged in recruitment and placement.
 
To constitute illegal recruitment in large scale, three (3) elements must concur: (a) the offender has no valid license or authority
required by law to enable him to lawfully engage in recruitment and placement of workers; (b) the offender undertakes any of the
activities within the meaning of recruitment and placement under Article 13(b) of the Labor Code, or any of the prohibited practices
enumerated under Article 34 of the said Code (now Section 6 of R.A. No. 8042); and, (c) the offender committed the same against three
(3) or more persons, individually or as a group.[7]
 
In the case at bar, the foregoing elements are present. Appellant, in conspiracy with her co-accused, misrepresented to have the
power, influence, authority and business to obtain overseas employment upon payment of a placement fee which was duly collected
from complainants Rogelio Legaspi, Dennis Dimaano, Evelyn Estacio, Soledad Atle and Luz Minkay. Further, the certification[8] issued
by the Philippine Overseas Employment Administration (POEA) and the testimony of Ann Abastra Abas, a representative of said
government agency, established that appellant and her co-accused did not possess any authority or license to recruit workers for
overseas employment. And, since there were five (5) victims, the trial court correctly found appellant liable for illegal recruitment in large
scale.
 
Appellant insists that she was merely an employee of ATTC and was just echoing the requirement of her employer. She further argues
that the prosecution failed to prove that she was aware of the latters illegal activities and that she actively participated therein. In
essence, she controverts the factual findings of the lower courts.
 
The contention is untenable.
 
An employee of a company or corporation engaged in illegal recruitment may be held liable as principal, together with his employer, if it
is shown that he actively and consciously participated in illegal recruitment. [9] Appellant actively took part in the illegal recruitment of
private complainants. Rogelio Legaspi testified that after introducing herself as the General Manager of ATTC, appellant persuaded him
to apply as a technician in Singapore and assured him that there was a job market therefor. In addition to the placement fee of
P35,000.00 which he paid to accused Bernadette Miranda, he also handed the amount of P10,000.00 to appellant who, in turn, issued
him a receipt for the total amount of P45,000.00. Upon the other hand, Soledad Atle and Luz Minkay, who applied as factory workers in
Hongkong through co-accused, Emily Salagonos, declared that it was appellant who briefed them on the requirements for the
processing of their application, and assured them and Dennis Dimaano of immediate deployment for jobs abroad. For her part, Evelyn
Estacio testified that aside from the placement fee of P40,000.00 that she paid to co-accused Baby Robles in connection with her
purported overseas employment, she also gave appellant P10,000.00 for which she was issued a receipt for the amount of P5,000.00.
 
The totality of the evidence, thus, established that appellant acted as an indispensable participant and effective collaborator of
her co-accused in the illegal recruitment of complainants. As aptly found by the CA:
 
Without doubt, all the acts of appellant, consisting of introducing herself to complainants as general manager of
ATTC, interviewing and entertaining them, briefing them on the requirements for deployment and assuring them that
they could leave immediately if they paid the required amounts, unerringly show unity of purpose with those of her co-
accused in their scheme to defraud private complainants through false promises of jobs abroad. There being
conspiracy, appellant shall be equally liable for the acts of her co-accused even if she herself did not personally reap
the fruits of their execution. We quote with approval the trial courts findings on the matter:
 
xxx It is clear that said accused conspired with her co-accused Rosemarie Baby Robles,
Bernadette M. Miranda, Nenita Catacotan, and Jojo Resco in convincing complainants xxx to apply
for overseas jobs and giving complainants Soledad Atle, Luz Minkay and Dennis Dimaano
guarantee that they would be hired as factory workers in Hongkong, complainant Rogelio Legaspi,
as Technician in Singapore and Evelyn Estacio as quality controller in a factory in Hongkong,
despite the fact that the accused was not licensed to do so.
It should be noted that all the accused were connected with the Alternative Travel and Tours
Corporation (ATTC). Accused Beth Temporada introduced herself as ATTCs General Manager.
Saod accused was also the one who received the P10,000.00 given by complainant Rogelio
Legaspi, Jr. and the P10,000.00 given by complainant Evelyn Estacio as payment for their visa and
plane ticket, respectively.[10]
 
Consequently, the defense of appellant that she was not aware of the illegal nature of the activities of her co-accused cannot be
sustained. Besides, even assumingarguendo that appellant was indeed unaware of the illegal nature of said activities, the same is
hardly a defense in the prosecution for illegal recruitment. Under The Migrant Workers and Overseas Filipinos Act of 1995, a special
law, the crime of illegal recruitment in large scale is malum prohibitum and not malum in se.[11] Thus, the criminal intent of the accused
is not necessary and the fact alone that the accused violated the law warrants her conviction.[12]
 
In the instant case, we find no reason to depart from the rule that findings of fact of the trial court on the credibility of witnesses and their
testimonies are generally accorded great respect by an appellate court. The assessment of credibility of witnesses is a matter best left
to the trial court because it is in the position to observe that elusive and incommunicable evidence of the witnesses deportment on the
stand while testifying, which opportunity is denied to the appellate courts.[13] Further, there is no showing of any ill-motive on the part of
the prosecution witnesses in testifying against appellant. Absent such improper motive, the presumption is that they were not so
actuated and their testimony is entitled to full weight and credit.
 
Section 7(b) of R.A. No. 8042 prescribes the penalty of life imprisonment and a fine of not less than P500,000.00 nor more than
P1,000,000.00 for the crime of illegal recruitment in large scale or by a syndicate. The trial court, therefore, properly meted the penalty
of life imprisonment and a fine of P500,000.00 on the appellant.
 
Anent the conviction of appellant for five (5) counts of estafa, we, likewise, affirm the same. Well-settled is the rule that a person
convicted for illegal recruitment under the Labor Code may, for the same acts, be separately convicted for estafa under Article 315, par.
2(a) of the RPC.[14] The elements of estafa are: (1) the accused defrauded another by abuse of confidence or by means of deceit; and
(2) the offended party or a third party suffered damage or prejudice capable of pecuniary estimation. [15] The same evidence proving
appellants criminal liability for illegal recruitment also established her liability for estafa. As previously discussed, appellant together with
her co-accused defrauded complainants into believing that they had the authority and capability to send complainants for overseas
employment. Because of these assurances, complainants parted with their hard-earned money in exchange for the promise of future
work abroad. However, the promised overseas employment never materialized and neither were the complainants able to recover their
money.
 
While we affirm the conviction for the five (5) counts of estafa, we find, however, that the CA erroneously computed the indeterminate
penalties therefor. The CA deviated from the doctrine laid down in People v. Gabres;[16] hence its decision should be reversed with
respect to the indeterminate penalties it imposed. The reversal of the appellate courts Decision on this point does not, however, wholly
reinstate the indeterminate penalties imposed by the trial court because the maximum terms, as determined by the latter, were
erroneously computed and must necessarily be rectified.
 
The prescribed penalty for estafa under Article 315, par. 2(d) of the RPC, when the amount defrauded exceeds P22,000.00,
is prisin correccional maximum toprisin mayor  minimum. The minimum term is taken from the penalty next lower or anywhere
within prisin correccional minimum and medium (i.e., from 6 months and 1 day to 4 years and 2 months). Consequently, the RTC
correctly fixed the minimum term for the five estafa cases at 4 years and 2 months of prisin correccionalsince this is within the range
of prisin correccional minimum and medium.
 
On the other hand, the maximum term is taken from the prescribed penalty of prisin correccional  maximum to prisin
mayor  minimum in its maximum period, adding 1 year of imprisonment for every P10,000.00 in excess of P22,000.00, provided that the
total penalty shall not exceed 20 years. However, the maximum period of the prescribed penalty of prisin correccional  maximum
to prisin mayor  minimum is not prisin mayor minimum as apparently assumed by the RTC. To compute the maximum period of the
prescribed penalty, prisin correccional maximum to prisin mayor  minimum should be divided into three equal portions of time each of
which portion shall be deemed to form one period in accordance with Article 65 [17] of the RPC. Following this procedure, the maximum
period of prisin correccionalmaximum to prisin mayor  minimum is from 6 years, 8 months and 21 days to 8 years. [18] The incremental
penalty, when proper, shall thus be added to anywhere from 6 years, 8 months and 21 days to 8 years, at the discretion of the court.[19]
 
In computing the incremental penalty, the amount defrauded shall be subtracted by P22,000.00, and the difference shall be
divided by P10,000.00. Any fraction of a year shall be discarded as was done starting with the case of People v. Pabalan[20] in
consonance with the settled rule that penal laws shall be construed liberally in favor of the accused.  The doctrine enunciated in People
v. Benemerito[21] insofar as the fraction of a year was utilized in computing the total incremental penalty should, thus, be modified.  In
accordance with the above procedure, the maximum term of the indeterminate sentences imposed by the RTC should be as follows:
 
In Criminal Case No. 02-208372, where the amount defrauded was P57,600.00, the RTC sentenced the accused to an indeterminate
penalty of 4 years and 2 months ofprisin correccional as minimum, to 9 years and 1 day of prisin mayor as maximum. Since the amount
defrauded exceeds P22,000.00 by P35,600.00, 3 years shall be added to the maximum period of the prescribed penalty (or added to
anywhere from 6 years, 8 months and 21 days to 8 years, at the discretion of the court). The lowest maximum term, therefore, that can
be validly imposed is 9 years, 8 months and 21 days of prisin mayor, and not 9 years and 1 day of prisin mayor.
 
In Criminal Case Nos. 02-208373, 02-208375, and 02-208376, where the amounts defrauded were P66,520.00, P69,520.00, and
P69,520.00, respectively, the accused was sentenced to an indeterminate penalty of 4 years and 2 months of prisin correccional as
minimum, to 10 years and 1 day of prisin mayor as maximum for each of the aforesaid three estafa cases. Since the amounts
defrauded exceed P22,000.00 by P44,520.00, P47,520.00, and P47,520.00, respectively, 4 years shall be added to the maximum
period of the prescribed penalty (or added to anywhere from 6 years, 8 months and 21 days to 8 years, at the discretion of the
court). The lowest maximum term, therefore, that can be validly imposed is 10 years, 8 months and 21 days of prisin mayor, and not 10
years and 1 day of prisin mayor.
 
Finally, in Criminal Case No. 02-208374, where the amount defrauded was P88,520.00, the accused was sentenced to an
indeterminate penalty of 4 years and 2 months of prisin correccional as minimum, to 11 years and 1 day of prisin mayor as
maximum. Since the amount defrauded exceeds P22,000.00 by P66,520.00, 6 years shall be added to the maximum period of the
prescribed penalty (or added to anywhere from 6 years, 8 months and 21 days to 8 years, at the discretion of the court).  The lowest
maximum term, therefore, that can be validly imposed is 12 years, 8 months and 21 days of reclusin temporal, and not 11 years and 1
day of prisin mayor.
 
  Response to the dissent.
 
In the computation of the indeterminate sentence for estafa under Article 315, par. 2(a) of the Revised Penal Code (RPC), the
Court has consistently followed the doctrine espoused in Pabalan and more fully explained in  Gabres. The dissent argues
that Gabres should be reexamined and abandoned.
 
We sustain Gabres. 
I.
The formula proposed in the Dissenting Opinion of Mr. Justice Ruben T. Reyes, i.e., the maximum term shall first be
computed by applying the incremental penalty rule, and thereafter the minimum term shall be determined by descending one degree
down the scale of penalties from the maximum term, is a novel but erroneous interpretation of the ISL in relation to Article 315, par. 2(a)
of the RPC. Under this interpretation, it is not clear how the maximum and minimum terms shall be computed.  Moreover, the legal
justification therefor is not clear because the meaning of the terms penalty, prescribed penalty, penalty actually imposed, minimum
term, maximum term, penalty next lower in degree, and one degree down the scale of penalties are not properly set out and are, at
times, used interchangeably, loosely and erroneously.
For purposes of this discussion, it is necessary to first clarify the meaning of certain terms in the sense that they will be used
from here on. Later, these terms shall be aligned to what the dissent appears to be proposing in order to clearly address the points
raised by the dissent.
The RPC provides for an initial penalty as a general prescription for the felonies defined therein which consists of a range of
period of time. This is what is referred to as the prescribed penalty. For instance, under Article 249[22] of the RPC, the prescribed
penalty for homicide is reclusin temporal which ranges from 12 years and 1 day to 20 years of imprisonment. Further, the Code
provides for attending or modifying circumstances which when present in the commission of a felony affects the computation of the
penalty to be imposed on a convict. This penalty, as thus modified, is referred to as the imposable penalty. In the case of homicide
which is committed with one ordinary aggravating circumstance and no mitigating circumstances, the imposable penalty under the RPC
shall be the prescribed penalty in its maximum period. From this imposable penalty, the court chooses a single fixed penalty (also
called a straight penalty) which is the penalty actually imposed on a convict, i.e., the prison term he has to serve.
 
Concretely, in U.S. v. Saadlucap,[23] a pre-ISL case, the accused was found guilty of homicide with a prescribed penalty of reclusin
temporal. Since there was one ordinary aggravating circumstance and no mitigating circumstances in this case, the imposable penalty
is reclusin temporal in its maximum period, i.e., from 17 years, 4 months and 1 day to 20 years. The court then had the discretion to
impose any prison term provided it is within said period, so that the penalty actually imposed on the accused was set at 17 years, 4
months and 1 day of reclusin temporal,[24] which is a single fixed penalty, with no minimum or maximum term.
 
With the passage of the ISL, the law created a prison term which consists of a minimum and maximum term called the
indeterminate sentence.[25] Section 1 of the ISL provides
 
SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be properly imposed under the rules of said Code, and the
minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; x x
x.
 
Thus, the maximum term is that which, in view of the attending circumstances, could be properly imposed under the RPC.  In other
words, the penalty actually imposed under the pre-ISL regime became the maximum term under the ISL regime. Upon the other
hand, the minimum term shall be within the range of the penalty next lower to the prescribed penalty. To illustrate, if the case
of Saadlucap was decided under the ISL regime, then the maximum term would be 17 years, 4 months and 1 day of reclusin
temporal and the minimum term could be anywhere within the range of prisin mayor (6 years and 1 day to 12 years) which is the
penalty next lower to reclusin temporal. Consequently, an indeterminate sentence of 10 years of prisin mayor as minimum to 17 years,
4 months and 1 day of reclusin temporal as maximum could have possibly been imposed.
 
If we use the formula as proposed by the dissent, i.e., to compute the minimum term based on the maximum term after the
attending or modifying circumstances are considered, the basis for computing the minimum term, under this interpretation, is the
imposable penalty[26] as hereinabove defined. Thisinterpretation is at odds with Section 1 of the ISL which clearly states that the
minimum of the indeterminate sentence shall be within the range of the penalty next lower to that prescribed by the Code for the
offense. Consequently, the basis for fixing the minimum term is the prescribed penalty,[27] and not the imposable penalty.
 
In People v. Gonzales,[28] the Court held that the minimum term must be based on the penalty prescribed by the Code for the
offense without regard to circumstances modifying criminal liability. [29] The Gonzales ruling that the minimum term must be based on the
prescribed penalty without regard to circumstances modifying criminal liability is only a restatement of Section 1 of the ISL that the
minimum term shall be taken from within the range of the penalty next lower to the prescribed penalty (and from nowhere else).[30]
 
Further, the dissent proceeds from the erroneous premise that its so-called regular formula has generally been followed in
applying the ISL. To reiterate, according to the dissent, the regular formula is accomplished by first determining the maximum term after
considering all the attending circumstances; thereafter, the minimum term is arrived at by going one degree down the scale from the
maximum term. As previously discussed, this essentially means, using the terms as earlier defined, that the minimum term shall be
taken from the penalty next lower to the imposable penalty (and not the prescribed penalty.) In more concrete terms and using the
previous example of homicide with one ordinary aggravating circumstance, this would mean that the minimum term for homicide will no
longer be based onreclusin temporal (i.e., the prescribed penalty for homicide) but reclusin temporal  in its maximum period (i.e., the
imposable penalty for homicide with one ordinary aggravating circumstance) so much so that the minimum term shall be taken
from reclusin temporal in its medium period (and no longer from prisin mayor) because this is the penalty next lower to reclusin
temporal in its maximum period. The penalty from which the minimum term is taken is, thus, significantly increased. From this
example, it is not difficult to discern why this interpretation radically departs from how the ISL has generally been applied by
this Court. The dissentsregular formula is, therefore, anything but regular.
 
In fine, the regular formula espoused by the dissent deviates from the ISL and established jurisprudence and is, thus, tantamount to
judicial legislation.
 
II. 
There is no absurdity or injustice in fixing or stagnating the minimum term within the range of prisin correccional  minimum and
medium (i.e., from 6 months and 1 day to 4 years and 2 months). Preliminarily, it must be emphasized that the minimum term taken
from the aforementioned range of penalty need not be the same for every case of estafa when the amount defrauded exceeds
P12,000.00. In People v. Ducosin,[31] the Court provided some guidelines in imposing the minimum term from the range of the penalty
next lower to the prescribed penalty:
 
We come now to determine the minimum imprisonment period referred to in Act No. 4103. Section 1 of said Act
provides that this minimum which shall not be less than the minimum imprisonment period of the penalty next lower to
that prescribed by said Code for the offense. [32] We are here upon new ground. It is in determining the minimum
penalty that Act No. 4103 confers upon the courts in the fixing of penalties the widest discretion that the courts have
ever had. The determination of the minimum penalty presents two aspects: first, the more or less mechanical
determination of the extreme limits of the minimum imprisonment period; and second, the broad question of the
factors and circumstances that should guide the discretion of the court in fixing the minimum penalty within the
ascertained limits.
 
xxxx
 
We come now to the second aspect of the determination of the minimum penalty, namely, the
considerations which should guide the court in fixing the term or duration of the minimum period of
imprisonment. Keeping in mind the basic purpose of the Indeterminate Sentence Law to uplift and redeem valuable
human material, and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness
(Message of the Governor-General, Official Gazette No. 92, vol. XXXI, August 3, 1933), it is necessary to consider
the criminal, first, as an individual and, second, as a member of society. This opens up an almost limitless field of
investigation and study which it is the duty of the court to explore in each case as far as is humanly possible, with the
end in view that penalties shall not be standardized but fitted as far as is possible to the individual, with due regard to
the imperative necessity of protecting the social order.
 
Considering the criminal as an individual, some of the factors that should be considered are: (1) His age,
especially with reference to extreme youth or old age; (2) his general health and physical condition; (3) his mentality,
heredity and personal habits; (4) his previous conduct, environment and mode of life (and criminal record if any); (5)
his previous education, both intellectual and moral; (6) his proclivities and aptitudes for usefulness or injury to society;
(7) his demeanor during trial and his attitude with regard to the crime committed; (8) the manner and circumstances in
which the crime was committed; (9) the gravity of the offense (note that section 2 of Act No. 4103 excepts certain
grave crimes this should be kept in mind in assessing the minimum penalties for analogous crimes).
 
In considering the criminal as a member of society, his relationship, first, toward his dependents, family and
associates and their relationship with him, and second, his relationship towards society at large and the State are
important factors. The State is concerned not only in the imperative necessity of protecting the social organization
against the criminal acts of destructive individuals but also in redeeming the individual for economic usefulness and
other social ends. In a word, the Indeterminate Sentence Law aims to individualize the administration of our criminal
law to a degree not heretofore known in these Islands. With the foregoing principles in mind as guides, the courts can
give full effect to the beneficent intention of the Legislature.[33]
 
Admittedly, it is possible that the court, upon application of the guidelines in Ducosin, will impose the same minimum term to one who
commits an estafa involving P13,000.00 and another involving P130 million. In fact, to a lesser degree, this is what happened in the
instant case where the trial court sentenced the accused to the same minimum term of 4 years and 2 months of prisin correccional in
Criminal Case Nos. 02-208372, 02-208373, 02-208375, 02-208376, and 02-208374 where the amounts defrauded were P57,600.00,
P66,520.00, P69,520.00, P69,520.00 and P88,520.00, respectively. However, there is no absurdity and injustice for two reasons.
 
One, while it is possible that the minimum term imposed by a court would be the same, the maximum term would be greater for the
convict who committed estafainvolving P130 million (which would be 20 years of reclusion temporal) than the convict who swindled
P13,000.00 (which could be anywhere from prisin correccional  maximum to prisin mayor minimum or from 4 years, 2 months and 1 day
to 8 years).[34] Assuming that both convicts qualify for parole after serving the same minimum term, the convict sentenced to a higher
maximum term would carry a greater burden with respect to the length of parole surveillance which he may be placed under, and the
prison term to be served in case he violates his parole as provided for in Sections 6 [35] and 8[36] of the ISL. Under Section 6, the convict
shall be placed under a period of surveillance equivalent to the remaining portion of the maximum sentence imposed upon him or until
final release and discharge by the Board of Pardon and Paroles. Further, the convict with the higher maximum term would have to
serve a longer period upon his re-commitment in prison in case he violates his parole because he would have to serve the remaining
portion of the maximum term, unless the Board of Pardon and Paroles shall, in its discretion, grant a new parole to the said convict as
provided for in Section 8.
 
Although the differences in treatment are in the nature of potential liabilities, to this limited extent, the ISL still preserves the
greater degree of punishment in the RPC for a convict who commits estafa involving a greater amount as compared to one who
commits estafa involving a lesser amount. Whether these differences in treatment are sufficient in substance and gravity
involves a question of wisdom and expediency of the ISL that this Court cannot delve into.
 
Two, the rule which provides that the minimum term is taken from the range of the penalty next lower to the prescribed penalty is,
likewise, applicable to other offenses punishable under the RPC. For instance, the minimum term for an accused guilty of homicide with
one generic mitigating circumstance vis--vis an accused guilty of homicide with three ordinary aggravating circumstances would both be
taken from prisin mayor  the penalty next lower to eclusion temporal. Evidently, the convict guilty of homicide with three ordinary
aggravating circumstances committed a more perverse form of the felony. Yet it is possible that the court, after applying the guidelines
in Ducosin, will impose upon the latter the same minimum term as the accused guilty of homicide with one generic mitigating
circumstance. This reasoning can be applied mutatis mutandis  to most of the other offenses punishable under the RPC. Should we
then conclude that the ISL creates absurd results for these offenses as well?
 
In fine, what is  perceived as absurd and unjust is actually the intent of the legislature to be beneficial to the convict in order to uplift
and redeem valuable human material, and prevent unnecessary and excessive deprivation of personal liberty and economic
usefulness.[37] By the legislatures deliberate design, the range of penalty from which the minimum term is taken remains fixed and only
the range of penalty from which the maximum term is taken changes depending on the number and nature of the attending
circumstances. Again, the reason why the legislature elected this mode of beneficence to a convict revolves on questions of wisdom
and expediency which this Court has no power to review. The balancing of the States interests in deterrence and retributive justice vis--
vis reformation and reintegration of convicts to society through penal laws belongs to the exclusive domain of the legislature.
 

III.
 
People v. Romero,[38] De Carlos v. Court of Appeals,[39] Salazar v. People,[40] People v. Dinglasan[41] and, by analogy, People v. Dela
Cruz[42] do not support the formula being proposed by the dissent.
The instant case involves a violation of Article 315, par. 2(a) of the RPC.[43] The penalty for said violation is
 
ARTICLE 315. Swindling (Estafa). Any person who shall defraud another by any of the means mentioned
hereinbelow shall be punished by:
 
1st. The penalty of prisin correccional  in its maximum period to prisin mayor  in its minimum period, if the
amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds
the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one
year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty
years. In such cases, and in connection with the accessory penalties which may be imposed and for the
purpose of the other provisions of this Code, the penalty shall be termed prisin mayor  or reclusin temporal,
as the case may be. x x x
 
In contrast, Romero, De Carlos,  and Salazar involved violations of Article 315 of the RPC as amended by Presidential Decree (P.D.)
No. 1689[44] because: (1) the funds defrauded were contributed by stockholders or solicited by corporations/associations from the
general public, (2) the amount defrauded was greater than P100,000.00, and (3) the estafa was not committed by a syndicate. Section
1 of P.D. No. 1689 provides
 
Sec. 1. Any person or persons who shall commit estafa or other forms of swindling as defined in Article 315
and 316 of the Revised Penal Code, as amended, shall be punished by life imprisonment to death if the swindling
(estafa) is committed by a syndicate consisting of five or more persons formed with the intention of carrying out the
unlawful or illegal act, transaction, enterprise or scheme, and the defraudation results in the misappropriation of
money contributed by stockholders, or members of rural banks, cooperative, "samahang nayon(s)", or farmers
association, or of funds solicited by corporations/associations from the general public.
 
When not committed by a syndicate as above defined, the penalty imposable shall be reclusin
temporal  to reclusin perpetua  if the amount of the fraud exceeds 100,000 pesos. (Emphasis supplied)
Since the prescribed penalty is reclusin temporal to reclusin perpetua, the minimum terms were taken from prisin mayor, which is the
penalty next lower to the prescribed penalty.[45] As can be seen, these cases involved a different penalty structure that does not make
use of the incremental penalty rule due to the amendatory law. Thus, the comparison of these cases with Gabres  is improper.
 
Meanwhile, in Dinglasan, the felony committed was estafa through bouncing checks which is punishable under Article 315 par.
2(d) of the RPC as amended by Republic Act (RA) No. 4885[46]
 
Sec. 1. Section Two, Paragraph (d), Article Three hundred fifteen of Act Numbered Thirty-eight hundred and fifteen is
hereby amended to read as follows:
 
Sec. 2. By means of any of the following false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud:
  
(d) By postdating a check, or issuing a check in payment of an obligation when the offender had no
funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. The
failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days
from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack
or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act.
 
and P.D. No. 818[47]
 
Sec. 1. Any person who shall defraud another by means of false pretenses or fraudulent acts as defined in
paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by Republic Act No. 4885, shall be punished
by:
 
1st. The penalty of reclusin temporal  if the amount of the fraud is over 12,000 pesos but not
exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph
shall be imposed in its maximum period, adding one year for each additional 10,000 pesos but the total
penalty which may be imposed shall in no case exceed thirty years. In such cases, and in connection with
the accessory penalties which may be imposed under the Revised Penal Code, the penalty shall be
termed reclusin perpetua; x x x (Emphasis supplied)
 
Here, the prescribed penalty of prisin correccional maximum to prisin mayor minimum was increased to reclusin temporal by the
amendatory law. Consequently, the penalty next lower to reclusin temporal is prisin mayor  from which the minimum term was
taken. This is the reason for the higher minimum term in this case as compared to Gabres. In fact, Dinglasan is consistent with Gabres
 
Since the face value of Check No. 029021, for which appellant is criminally liable for estafa, exceeds
P22,000, the penalty abovecited must be imposed in its maximum period, adding 1 year for each additional P10,000.
Pursuant to People vs. Hernando, G.R. No. 125214, Oct. 28, 1999, an indeterminate sentence shall be imposed on
the accused, computed favorably to him. In this case, the indeterminate sentence should be computed based on the
maximum period of reclusin temporal  as maximum, which is from 17 years, 4 months, and 1 day to 20 years.  The
minimum period of the sentence should be within the penalty next lower in degree as provided in the
Revised Penal Code, i.e., prisin mayor, which is from 6 years and 1 day to 12 years imprisonment. Considering
that the excess of the fraud committed, counting from the base of P22,000, is only P4,400, which is less than the
P10,000 stated in P.D. 818, there is no need to add one year to the maximum penalty abovecited. [48] (Emphasis
supplied)
 
As in Gabres, the penalty next lower (i.e., prisin mayor) was determined without considering in the meantime the effect of the amount
defrauded in excess of P22,000.00 on the prescribed penalty (i.e., reclusin temporal).
 
Finally, Dela Cruz involved a case for qualified theft. The prescribed penalty for qualified theft is two degrees higher than simple theft.
Incidentally, the penalty structure for simple theft[49] and estafa is similar in that both felonies (1) requires that the prescribed penalty be
imposed in its maximum period when the value of the thing stolen or the amount defrauded, as the case may be, exceeds P22,000.00,
and (2) provides for an incremental penalty of 1 year imprisonment for every P10,000.00 in excess of P22,000.00. It should be pointed
out, however, that the prescribed penalty for simple theft is prisin mayor minimum and medium while inestafa it is lower at prisin
correccional maximum to prisin mayor minimum.
 
Being two degrees higher, the prescribed penalty for qualified theft is, thus, reclusin temporal  medium and maximum, while
the minimum term is taken from the range of prisin mayor  maximum to reclusin temporal minimum, which is the penalty next lower
to reclusin temporal medium and maximum. The penalty next lower to the prescribed penalty is determined without first considering the
amount stolen in excess of P22,000.00 consistent with Gabres. In fact, Dela Cruz  expressly cites Gabres
 
Applying the Indeterminate Sentence Law, the minimum of the indeterminate penalty shall be anywhere
within the range of the penalty next lower in degree to that prescribed for the offense, without first considering any
modifying circumstance attendant to the commission of the crime. Since the penalty prescribed by law
is reclusin temporal  medium and maximum, the penalty next lower would be prisin mayor in its maximum period
to reclusin temporal  in its minimum period. Thus, the minimum of the indeterminate sentence shall be anywhere
within ten (10) years and one (1) day to fourteen (14) years and eight (8) months.
 
The maximum of the indeterminate penalty is that which, taking into consideration the attending
circumstances, could be properly imposed under the Revised Penal Code.Since the amount involved in the
present case exceeds P22,000.00, this should be taken as analogous to modifying circumstances in the
imposition of the maximum term of the full indeterminate sentence, not in the initial determination of the
indeterminate penalty. (citing Gabres) Thus, the maximum term of the indeterminate penalty in this case is the
maximum period of reclusin temporal medium and maximum, which ranges from eighteen (18) years, two (2) months,
and twenty one (21) days to twenty (20) years, as computed pursuant to Article 65, in relation to Article 64 of the
Revised Penal Code.[50] (Emphasis supplied)
 
Clearly, none of these cases supports the Dissenting Opinions thesis that the minimum term should be computed
based on the maximum term. Quite the contrary, Dinglasan and  Dela Cruz are consistent with Gabres. 
IV.
 The argument that the incremental penalty rule should not be considered as analogous to a modifying circumstance stems
from the erroneous interpretation that the attending circumstances mentioned in Section 1 of the ISL are limited to those modifying
circumstances falling within the scope of Articles 13 and 14 of the RPC.Section 1 of the ISL is again quoted below
 
SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be properly imposed under the rules of said Code ,
and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the
offense; x x x (Emphasis supplied)
 
The plain terms of the ISL show that the legislature did not intend to limit attending circumstances as referring to Articles 13
and 14 of the RPC. If the legislature intended that the attending circumstances under the ISL be limited to Articles 13 and 14, then it
could have simply so stated. The wording of the law clearly permits other modifying circumstances outside of Articles 13 and 14 of the
RPC to be treated as attending circumstances for purposes of the application of the ISL, such as quasi-recidivism under Article
160[51] of the RPC. Under this provision, any person who shall commit a felony after having been convicted by final judgment, before
beginning to serve such sentence, or while serving the same, shall be punished by the maximum period of the penalty prescribed by
law for the new felony. This circumstance has been interpreted by the Court as a special aggravating circumstance where the penalty
actually imposed is taken from the prescribed penalty in its maximum period without regard to any generic mitigating circumstances.
[52]
 Since quasi-recidivism is considered as merely a special aggravating circumstance, the penalty next lower in degree is computed
based on the prescribed penalty without first considering said special aggravating circumstance as exemplified in People v.
Manalo[53] and People v. Balictar.[54]
The question whether the incremental penalty rule is covered within the letter and spirit of attending circumstances under the ISL was
answered in the affirmative by the Court in Gabres when it ruled therein that the incremental penalty rule is analogous to a modifying
circumstance.
 
Article 315 of the RPC pertinently provides
 
ARTICLE 315. Swindling (Estafa). Any person who shall defraud another by any of the means mentioned
hereinbelow shall be punished by:
 
1st. The penalty of prisin correccional  in its maximum period to prisin mayor in its minimum period,
if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount
exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period,
adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not
exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed
and for the purpose of the other provisions of this Code, the penalty shall be termed prisin mayor or reclusin
temporal, as the case may be. x x x
 
Under Gabres, prisin correccional maximum to prisin mayor  minimum is the prescribed penalty[55] for estafa when the amount
defrauded exceeds P22,000.00. An amount defrauded in excess of P22,000.00 is effectively considered as a special aggravating
circumstance in the sense that the penalty actually imposed shall be taken from the prescribed penalty in its maximum period without
regard to any generic mitigating circumstances. Consequently, the penalty next lower in degree is still based on the prescribed penalty
without in the meantime considering the effect of the amount defrauded in excess of P22,000.00.
What is unique, however, with the afore-quoted provision is that when the amount defrauded is P32,000.00 or more, the
prescribed penalty is not only imposed in its maximum period but there is imposed an incremental penalty of 1 year imprisonment for
every P10,000.00 in excess of P22,000.00, provided that the total penalty which may be imposed shall not exceed 20 years. This
incremental penalty rule is a special rule applicable to estafa and theft. In the case of estafa, the incremental penalty is added to the
maximum period of the prescribed penalty (or to anywhere from 6 years, 8 months and 21 days to 8 years) at the discretion of the court,
in order to arrive at the penalty actually imposed (i.e., the maximum term, within the context of the ISL).
 
This unique characteristic of the incremental penalty rule does not pose any obstacle to interpreting it as analogous to a
modifying circumstance, and, hence, falling within the letter and spirit of attending circumstances for purposes of the application of the
ISL. Under the wording of the ISL, attending circumstances may be reasonably interpreted as referring to such circumstances that are
applied in conjunction with certain rules in the Code in order to determine the penalty to be actually imposed based on the prescribed
penalty of the Code for the offense. The incremental penalty rule substantially meets this standard. The circumstance is the amount
defrauded in excess of P22,0000.00 and the incremental penalty rule is utilized to fix the penalty actually imposed. At its core, the
incremental penalty rule is merely a mathematical formula for computing the penalty to be actually imposed using the prescribed
penalty as starting point. Thus, it serves the same function of determining the penalty actually imposed as the modifying circumstances
under Articles 13, 14, and 160 of the RPC, although the manner by which the former accomplishes this function differs with the
latter. For this reason, the incremental penalty rule may be considered as merely analogous to modifying circumstances.  Besides, in
case of doubt as to whether the incremental penalty rule falls within the scope of attending circumstances under the ISL, the doubt
should be resolved in favor of inclusionbecause this interpretation is more favorable to the accused following the time-honored
principle that penal statutes are construed strictly against the State and liberally in favor of the accused. [56] Thus, even if the Dissenting
Opinions interpretation is gratuitously conceded as plausible, as between Gabres and the dissents interpretation, Gabres should be
sustained since it is the interpretation more favorable to the accused.
 
V.
The claim that the maximum term should only be one degree away from the minimum term does not make sense within the
meaning of degrees under the RPC because the minimum and maximum terms consist of single fixed penalties.  At any rate,
the point seems to be that the penalty from which the minimum term is taken should only be one degree away from the penalty from
which the maximum term is taken.
 
As a general rule, the application of modifying circumstances, the majority being generic mitigating and ordinary aggravating
circumstances, does not result to a maximum term fixed beyond the prescribed penalty. At most, the maximum term is taken from the
prescribed penalty in its maximum period. Since the maximum term is taken from the prescribed penalty and the minimum term is taken
from the next lower penalty, then, in this limited sense, the difference would naturally be only one degree. Concretely, in the case of
homicide with one ordinary aggravating circumstance, the maximum term is taken from reclusin temporal in its maximum period which
is within the prescribed penalty of reclusin temporal, while the minimum term is taken from prisin mayor  which is the penalty next lower
to reclusin temporal; hence, the one-degree difference observed by the dissent.
 
In comparison, under the incremental penalty rule, the maximum term can exceed the prescribed penalty. Indeed, at its
extreme, the maximum term can be as high as 20 years of reclusin temporal  while the prescribed penalty remains at prisin
correccional maximum to prisin mayor  minimum, hence, the penalty next lower to the prescribed penalty from which the minimum term
is taken remains at anywhere within prisin correccional  minimum and medium, or from 6 months and 1 day to 4 years and 2 months. In
this sense, the incremental penalty rule deviates from the afore-stated general rule.[57]
 
However, it is one thing to say that, generally, the penalty from which the minimum term is taken is only one degree away from
the penalty from which the maximum term is taken, and completely another thing to claim that the penalty from which the minimum term
is taken should only be one degree away from the penalty from which the maximum term is taken.
 
The one-degree difference is merely the result of a general observation  from the application of generic mitigating and ordinary
aggravating circumstances in the RPC in relation to the ISL. Nowhere does the ISL refer to the one-degree difference as an essential
requisite of an attending circumstance. If the application of the incremental penalty rule deviates from the one-degree difference, this
only means that the law itself has provided for an exception thereto. Verily, the one-degree difference is a mere consequence of the
generic mitigating and ordinary aggravating circumstances created by the legislature. The difficulty of the dissent with the deviation from
its so-called one-degree difference rule seems to lie with the inability to view these attending circumstances as mere artifacts or
creations of the legislature. It does not make sense to argue that the legislature cannot formulate attending circumstances that operate
differently than these generic mitigating and ordinary aggravating circumstances, and that, expectedly, leads to a different result from
the one-degree differencefor it would be to say that the creator can only create one specie of creatures. Further, it should be
reasonably assumed that the legislature was aware of these special circumstances, like the incremental penalty rule or privileged
mitigating circumstances, at the time it enacted the ISL as well as the consequent effects of such special circumstances on the
application of said law. Thus, for as long as the incremental penalty rule is consistent with the letter and spirit of attending
circumstances under the ISL, there is no obstacle to its treatment as such.
 
VI.
 
Much has been said about the leniency, absurdity and unjustness of the result under Gabres; the need to adjust the minimum term of
the indeterminate penalty to make it commensurate to the gravity of the estafa committed; the deterrence effect of a stiffer imposition of
penalties; and a host of other similar reasons to justify the reversal of Gabres. However, all these relate to policy considerations beyond
the wording of the ISL in relation to the RPC; considerations that if given effect essentially seek to rewrite the law in order to conform to
one notion (out of an infinite number of such notions) of wisdom and efficacy, and, ultimately, of justice and mercy.
 
This Court is not the proper forum for this sort of debate. The Constitution forbids it, and the principle of separation of powers
abhors it. The Court applies the law as it finds it and not as how it thinks the law should be. Not too long ago in the case of People v.
Veneracion,[58] this Court spoke about the dangers of allowing ones personal beliefs to interfere with the duty to uphold the Rule of Law
which, over a decade later, once again assumes much relevance in this case:
 
Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of
religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by
law to exercise the duties of their office, the law becomes meaningless. A government of laws, not of men excludes
the exercise of broad discretionary powers by those acting under its authority. Under this system, judges are guided
by the Rule of Law, and ought to protect and enforce it without fear or favor, resist encroachments by governments,
political parties, or even the interference of their own personal beliefs.[59]
 
VII.
 
Mr. Justice Adolfo S. Azcuna proposes an interpretation of the incremental penalty rule based on the phrases shall be termed  prisin
mayor  or reclusin temporal, as the case may be and for the purpose of the other provisions of this Code found in the last sentence of
said rule, viz:
 
ARTICLE 315. Swindling (Estafa). Any person who shall defraud another by any of the means mentioned
hereinbelow shall be punished by:
 
1st. The penalty of prisin correccional  in its maximum period to prisin mayor in its minimum period,
if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount
exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period,
adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not
exceed twenty years. In such cases, and in connection with the accessory penalties which may be
 imposed and for the purpose of the other provisions of this Code, the penalty shall be termed  prisin
mayor  or reclusin temporal, as the case may be. x x x (Emphasis supplied)
 
While this interpretation is plausible, Gabres should still be sustained because in construing penal statutes, as between two
reasonable[60] but contradictory constructions, the one more favorable to the accused should be upheld, which in this case
is Gabres. The reason for this rule is elucidated in an eminent treatise on statutory construction in this wise:
 
It is an ancient rule of statutory construction that penal statutes should be strictly construed against the
government or parties seeking to enforce statutory penalties and in favor of the persons on whom penalties are
sought to be imposed. This simply means that words are given their ordinary meaning and that any reasonable
doubt about the meaning is decided in favor of anyone subjected to a criminal statute. This canon of
interpretation has been accorded the status of a constitutional rule under principles of due process, not subject to
abrogation by statute.
 
The rule that penal statutes should be strictly construed has several justifications based on a concern for the
rights and freedoms of accused individuals. Strict construction can assure fairness when courts understand it to mean
that penal statutes must give a clear and unequivocal warning, in language people generally understand, about
actions that would result in liability and the nature of potential penalties. A number of courts have said:
 
the rule that penal statutes are to be strictly construed is a fundamental principle which in
our judgment will never be altered. Why? Because the lawmaking body owes the duty to citizens
and subjects of making unmistakably clear those acts for the commission of which the citizen may
lose his life or liberty. Therefore, all the canons of interpretation which apply to civil statutes apply
to criminal statutes, and in addition there exists the canon [of strict construction] . The burden lies
on the lawmakers, and inasmuch as it is within their power, it is their duty to relieve the situation of
all doubts.
 
xxxx
 
Additionally, strict construction protects the individual against arbitrary discretion by officials and judges. As
one judge noted: the courts should be particularly careful that the bulwarks of liberty are not overthrown, in order to
reach an offender who is, but perhaps ought not to be, sheltered behind them.
 
But also, for a court to enforce a penalty where the legislature has not clearly and unequivocally
prescribed it could result in judicial usurpation of the legislative function. One court has noted that the reason
for the rule is to guard against the creation, by judicial construction, of criminal offenses not within the contemplation
of the legislature. Thus the rule requires that before a person can be punished his case must be plainly and
unmistakably within the statute sought to be applied. And, so, where a statute is open to more than one interpretation,
it is strictly construed against the state. Courts further rationalize this application of the rule of strict construction on
the ground that it was not the defendant in the criminal action who caused ambiguity in the statute. Along these same
lines, courts also assert that since the state makes the laws, they should be most strongly construed against it.
[61]
 (Emphasis supplied; citations omitted)
 
Thus, in one case, where the statute was ambiguous and permitted two reasonable interpretations, the construction which would
impose a less severe penalty was adopted.[62]
 
WHEREFORE, the Decision of the Court of Appeals is MODIFIED with respect to the indeterminate penalties imposed on appellant for
the five (5) counts ofestafa,  to wit:
 
(1)              In Criminal Case No. 02-208372, the accused is sentenced to an indeterminate penalty of 4 years and 2 months
of prisin correccional as minimum, to 9 years, 8 months and 21 days of prisin mayor as maximum.
 
(2)              In Criminal Case Nos. 02-208373, 02-208375, and 02-208376, the accused is sentenced to an indeterminate
penalty of 4 years and 2 months of prisin correccional as minimum, to 10 years, 8 months and 21 days of prisin
mayor as maximum for each of the aforesaid three estafa cases.
 
(3)              In Criminal Case No. 02-208374, the accused is sentenced to an indeterminate penalty of 4 years and 2 months
of prisin correccional as minimum, to 12 years, 8 months and 21 days of reclusin temporal  as maximum.
 
In all other respects, the Decision of the Court of Appeals is AFFIRMED.
 
SO ORDERED.