THIRD DIVISION

February 15, 2017

G.R. No. 196084

NUEVA ECIJA II ELECTRIC COOPERATIVE, INC., AREA I, Mr. REYNALDO VILLANUEVA, President, Board of Directors, and Mrs. EULALIA CASTRO, General Manager, Petitioners
vs.
ELMER B. MAPAGU, Respondent

D E C I S I O N

JARDELEZA, J.:

This is a Petition for Review on Certiorari1 assailing the September 2, 20102 and March 3, 20113 Resolutions of the Court of Appeals (CA) in CA-G.R. SP No. 114690. The CA dismissed outright the petition for certiorari filed by Nueva Ecija II Electric Cooperative, Inc., Area I (NEEC), Reynaldo Villanueva (Villanueva) and Eulalia Castro (Castro) (collectively, petitioners) on the ground that their Verification and Certification against Forum Shopping was unsigned.

Respondent Elmer B. Mapagu (Mapagu) was employed with NEEC as a data processor since May 1983.4 NEEC is an electric cooperative which supplies electricity to households in Nueva Ecija, including Aliaga, where Mapagu resides.5 Upon the request of the NEEC Board of Directors, the National Electrification Administration (NEA) conducted a special audit on the power bills and accounts receivables of the consumers, as well as related internal control and procedure, of NEEC.6 The audit revealed unaccounted consumption or readings which have accumulated due to under-reading and under-billing in prior years or months. Mapagu's electric consumption was found to be under-read and under-billed by 12,845 kilowatt hours (kWhrs) and 1,918 kWhrs for the months of April 2004 and March to May 2005, respectively. This under-reading/under-billing amounted to a total of P87,666.17.7 As a result, petitioners sent a Notice of Charges dated June 13, 2006 against Mapagu, charging him with grave violations of Sections 7.2.18 & 7.2.19 of the NEEC Code of Ethics and Discipline (NEEC Code),8 to wit:

"Section 7.2.18 - Fraud or willful breach by the employee of the trust reposed in him/her by his/her supervisor or by the management."

"Section 7.2.19 - All other acts of dishonesty which cause or tend to cause prejudice to the REC."9

Mapagu was informed that the penalty for the charges is dismissal for the first offense and was directed to submit an answer within 72 hours from receipt of the Notice of Charges.10 In his answer, Mapagu denied under oath that his electric meter was under-read and under-billed by 1,918 k Whrs. He asserted that he has no meter reading from November 2002 to April 2005. He also argued that he availed of the amnesty offered and given by the NEEC Officer in Charge General Manager Jun Capulong in connection with employees' meter problems. Since the charges have been condoned, pardoned and disregarded, Mapagu maintains that he cannot be charged with unaccounted consumption.11

NEEC created an Investigation and Appeals Committee (IAC) to investigate Mapagu and the other workers implicated in the special audit. The IAC scheduled four conferences where data encoders and meter readers were invited as resource persons.12

On September 5, 2006, the IAC issued its findings and recommendations. It held that while the charges of under-reading and under-billing were not established, Mapagu failed to observe the highest degree of honesty as an employee. He did not take action to correct his kWhr consumption despite knowledge that he has no reading from 2002 to 2005. To the IAC, this was proof that Mapagu consented to the anomaly for his own benefit.13 On account of his failure to protect the interest of NEEC, the IAC found him guilty of the charges against him, with the additional finding that he also violated Section 7.2.3 of the NEEC Code for concealing defective work resulting in the prejudice or loss of NEEC.

Nevertheless, and for humanitarian reasons, the IAC recommended that Mapagu only be suspended for two years, on the condition that he execute a waiver in favor of NEEC management against the filing of any legal action regarding his suspension. He was also ordered to pay his unbilled consumption worth ₱87,666.17.14

On January 2, 2007, however, Mapagu received a Notice of Dismissal from service. Hence, he filed a Complaint for illegal dismissal and non-payment of allowances against petitioners. He later amended the Complaint to include a prayer for moral, exemplary and actual damages and attorney's fees, dropping his claim for allowances.15 NEEC countered that Mapagu was dismissed due to valid and legal causes. His gross dishonesty, fraud and willful misconduct were unveiled by the special audit conducted by the NEA.16 NEEC contended that the amnesty claimed by Mapagu cannot work in his favor because it only provided for a special payment arrangement, where he was allowed to pay his under-billed obligation on installment for two years.17

In his November 30, 2007Decision,18 Labor Arbiter (LA) Leandro M. Jose ruled in favor of petitioners. Stating that NEEC discharged its burden of proving that Mapagu was lawfully dismissed, LA Jose dismissed Mapagu's Complaint for lack of merit.19

Mapagu appealed to the National Labor Relations Commission (NLRC), which reversed and set aside20 the ruling of the LA. The NLRC held that under the circumstances and facts of the case, the penalty of dismissal is unwarranted. According to the NLRC, while the law does not condone wrongdoing by an employee, it urges a moderation of the sanction that may be applied to him where a penalty less punitive would suffice.21 The NLRC compared the penalty imposed upon Mapagu with the sanctions received by his co-employees who admitted that they altered or tampered their meter reading slips. It found that despite the IAC recommendation of dismissal from the service, the other employees were merely suspended and even given separation pay by the petitioners.22 The NLRC observed:

Further, if respondents-appellees [herein petitioners] were able to condone, through Board Resolution No. 09-11-05, those with tampered meters, under read meters, stop/slow meters and illegal connection through payment of the unaccounted consumption, the dismissal of the complain[ant]-appellant all the more is shown to be tainted with bad faith. The condonation of some employees who have committed acts punishable with the (sic) dismissal and the dismissal of employees who have committed acts punishable with dismissal shows the bias of appellees.23

The NLRC concluded that Mapagu is entitled to the twin relief of reinstatement and backwages. Considering, however, that the trust reposed on Mapagu can no longer be restored, and reinstatement is no longer feasible, the NLRC ordered the payment of separation pay reckoned from the time of Mapagu's employment up to the finality of the Decision. The dispositive portion of the NLRC Decision reads:

WHEREFORE
, premises considered, the appeal is hereby granted. The 30 November 2007 Decision of the Labor Arbiter is reversed and set aside and a new one entered directing Nueva Ecija Electric Cooperative II to pay Elmer Mapagu separation pay in an amount equivalent to one (1) month pay reckoned from his employment up to the finality of this Decision and backwages reckoned from the time he was dismissed up to the finality of this Decision. However, from his backwages, the amount pertaining to his two years suspension must be deducted.

The claims for moral and exemplary damages are dismissed for want of merit.

SO ORDERED.24 (Emphasis in the original.)