Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated SEP 17 2003.

G.R. No. 140843 (Man & Land, Inc., petitioner, vs. Court of Appeals (8^th Division), National Labor Relations Commission (2^nd Division) and Ma. Dolores R. Mamaril, respondents.)

The controversy herein stemmed from an initial complaint for various labor violations filed with the Labor Arbiter by Ma. Dolores T. Mamaril (herein respondent) against Pamana, Inc., a sister company of Man & Land, Inc. (herein petitioner), docketed as NLRC-NCR 2-64186.

Subsequently, the parties reached a compromise agreement whereby Pamana, Inc. allowed respondent to transfer to Man & Land, Inc., petitioner (holding office at Calamba, Laguna), as a cashier with a monthly pay of P4,805.00. Petitioner provided her with free board and lodging within the compound of Pamana, Inc. situated at Barangay Real of the same municipality.

However, for unknown reasons, petitioner, in the guise of transferring its business office at a new site, directed respondent to reside in an unfinished and non-habitable house at Barangay Bucal. Worse, she was stripped of her duties as cashier. Instead, she was assigned various tasks, such as submission of a bi-monthly accomplishment report and inventory of pending work. Furthermore, she was constrained to draw her salaries at petitioner’s office in Makati City, resulting in the non-payment of her salaries since July 1, 1997.

Feeling aggrieved, respondent filed with the Labor Arbiter a complaint for constructive dismissal, non-payment of salaries, damages and attorney’s fees against petitioner, docketed as NLRC Case No. SRAB-IV-8-5269-97-L.

For its part; petitioner filed with the Labor Arbiter a complaint for abandonment of work against respondent, docketed as NLRC Case No. SRAB-IV-9-5290-97-L.

In due course, the Labor Arbiter rendered a consolidated Decision dated May 28, 1998 in favor of respondent. The dispositive portion reads:

“WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. declaring Man and Land, Inc. guilty of constructive dismissal;

2. ordering Man and Land, Inc. to pay complainant MA. DOLORES T. MAMARIL the following amounts:

a. Separation pay P 57,660.00

b. Backwages P 48,050.00

c. Unpaid salary from July 1-31, 1997 P 1,805.00

d. Attorney’s fees P 11,050.00

Total P121,566.50

3. dismissing all other claims.

“SO ORDERED.”

On appeal, the National Labor Relations Commission (NLRC), in a Decision dated April 22, 1999, affirmed the Arbiter’s Decision.

Petitioner filed a motion for reconsideration but was denied by the NLRC in a Resolution dated July 26, 1999.

Hence, petitioner filed with the Court of Appeals a petition for certiorari alleging that the NLRC, in issuing the said Decision and Resolution, acted with grave abuse of discretion.

Acting thereon, the Appellate Court issued the assailed Resolution dated September 21, 1999, dismissing outright the petition for certiorari for non-compliance with Section 11, Rule 13 of the 1997 Rules of Civil Procedure, as amended.[1]

Petitioner filed a motion for reconsideration but was denied.

Petitioner now comes to this Court via a petition for certiorari imputing grave abuse of discretion to the Court of Appeals in dismissing outright its petition.

In her comment, respondent contends that certiorari is a wrong remedy and that what petitioner should have filed is a petition for review on certiorari.

Respondent is correct. When the remedy of appeal is available, the extraordinary remedy of certiorari cannot be availed of because the former proscribes recourse to the latter.[2]

At any rate, even if certiorari is proper, still the petition is vulnerable to dismissal. Under the above-cited Rule, personal service of petitions and other pleadings is the general rule, while a resort to other modes of service is the exception. Where recourse is made to the exception, a written explanation why the service and the filing were not done personally is indispensable, even when such explanation by its nature is acceptable and manifest. Where no explanation is offered to justify the resort to other modes, as in this case, the discretionary power of the court to expunge the pleading becomes mandatory.[3]

We thus hold that the Court of Appeals did not gravely abuse its discretion in dismissing the petition for certiorari challenging the NLRC Decision and Resolution.

WHEREFORE, the instant petition is DISMISSED. The Resolutions dated September 21, 1999 and November 19, 1999 of the Court of Appeals are hereby AFFIRMED.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court

[1] “Sec. 11. Priorities in modes of service and filing. — Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed.”

[2] Philippine Banking Corp. vs. Intermediate Appellate Court, G.R. No. 66510, July 6, 1990, 187 SCRA 257, citing Del Pozo vs. Penaco, G.R. No. L-48302, November 23, 198, 167 SCRA 577.

[3] Perla Zulueta vs. Asia Brewery, G.R. No. 138137, March 8, 2001, 354 SCRA 100, citing Solar Team Entertainment, Inc. vs. Ricafort, G.R. No. 132007, August 5, 1998, 293 SCRA 661.