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G.R. No.

129329

July 31, 2001

ESTER M. ASUNCION, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, Second Division, MABINI MEDICAL CLINIC and DR. WILFRIDO JUCO, respondents. KAPUNAN, J.: In her petition filed before this Court, Ester Asuncion prays that the Decision, dated November 29, 1996, and the Resolution, dated February 20,1997, of the public respondent National Labor Relations Commission, Second Division, in NLRC CA. 011188 which reversed the Decision of the Labor Arbiter, dated May 15, 1996 be set aside. The antecedents of this case are as follows: On August 16, 1993, petitioner Ester M. Asuncion was employed as an accountant/bookkeeper by the respondent Mabini Medical Clinic. Sometime in May 1994, certain officials of the NCR-Industrial Relations Division of the Department of Labor and Employment conducted a routine inspection of the premises of the respondent company and discovered upon the disclosure of the petitioner of (documents) violations of the labor standards law such as the non-coverage from the SSS of the employees. Consequently, respondent Company was made to correct these violations. On August 9, 1994, the private respondent, Medical Director Wilfrido Juco, issued a memorandum to petitioner charging her with the following offenses: 1. Chronic Absentism (sic) You have incurred since Aug. 1993 up to the present 35 absences and 23 half-days. 2. Habitual tardiness You have late (sic) for 108 times. As shown on the record book. 3. Loitering and wasting of company time on several occasions and witnessed by several employees. 4. Getting salary of an absent employee without acknowledging or signing for it. 5. Disobedience and insubordination - continued refusal to sign memos given to you. 1 Petitioner was required to explain within two (2) days why she should not be terminated based on the above charges. Three days later, in the morning of August 12, 1994, petitioner submitted her response to the memorandum. On the same day, respondent Dr. Juco, through a letter dated August 12, 1994, dismissed the petitioner on the ground of disobedience of lawful orders and for her failure to submit her reply within the two-day period. This prompted petitioner to file a case for illegal termination before the NLRC. In a Decision, dated May 15, 1996, Labor Arbiter Manuel Caday rendered judgment declaring that the petitioner was illegally dismissed. The Labor Arbiter found that the private respondents were unable to prove the allegation of chronic absenteeism as it failed to present in evidence the time cards, logbooks or record book which complainant signed recording her time in reporting for work. These documents, according to the Labor Arbiter, were in the possession of the private respondents. In fact, the record book was mentioned in the notice of termination. Hence, the non-presentation of these documents gives rise to the presumption that these documents were intentionally suppressed since they would be adverse to private respondents claim. Moreover, the Labor Arbiter ruled that the petitioners absences were with the conformity of the private respondents as both parties had agreed beforehand that petitioner would not report to work on Saturdays. The handwritten listing of the days when complainant was absent from work or late in reporting for work and even the computerized print-out, do not suffice to prove that petitioners absences were unauthorized as they could easily be manufactured. 2 Accordingly, the dispositive portion of the decision states, to wit:

WHEREFORE, Premises Considered, judgment is hereby rendered declaring the dismissal of the complainant as illegal and ordering the respondent company to immediately reinstate her to her former position without loss of seniority rights and to pay the complainants backwages and other benefits, as follows: 1) P73,500.00 representing backwages as of the date of this decision until she is actually reinstated in the service; 2) P20,000.00 by way of moral damages and another P20,000.00 representing exemplary damages; and 3) 10% of the recoverable award in this case representing attorneys fees. SO ORDERED.3 On appeal, public respondent NLRC rendered the assailed decision which set aside the Labor Arbiters ruling. Insofar as finding the private respondents as having failed to present evidence relative to petitioners absences and tardiness, the NLRC agrees with the Labor Arbiter. However, the NLRC ruled that petitioner had admitted the tardiness and absences though offering justifications for the infractions. The decretal portion of the assailed decision reads: WHEREFORE, premises considered, the appealed decision is hereby VACATED and SET ASIDE and a NEW ONE entered dismissing the complaint for illegal dismissal for lack of merit. However, respondents Mabini Medical Clinic and Dr. Wilfrido Juco are jointly and solidarily ordered to pay complainant Ester Asuncion the equivalent of her three (3) months salary for and as a penalty for respondents non-observance of complainants right to due process. SO ORDERED.4 Petitioner filed a motion for reconsideration which the public respondent denied in its Resolution, dated February 19, 1997. Hence, petitioner through a petition for certiorari under Rule 65 of the Rules of Court seeks recourse to this Court and raises the following issue: THE PUBLIC RESPONDENT ERRED IN FINDING THAT THE PETITIONER WAS DISMISSED BY THE PRIVATE RESPONDENT FOR A JUST OR AUTHORIZED CAUSE. The petition is impressed with merit. Although, it is a legal tenet that factual findings of administrative bodies are entitled to great weight and respect, we are constrained to take a second look at the facts before us because of the diversity in the opinions of the Labor Arbiter and the NLRC.5 A disharmony between the factual findings of the Labor Arbiter and those of the NLRC opens the door to a review thereof by this Court.6 It bears stressing that a workers employment is property in the constitutional sense. He cannot be deprived of his work without due process. In order for the dismissal to be valid, not only must it be based on just cause supported by clear and convincing evidence,7 the employee must also be given an opportunity to be heard and defend himself. 8 It is the employer who has the burden of proving that the dismissal was with just or authorized cause. 9 The failure of the employer to discharge this burden means that the dismissal is not justified and that the employee is entitled to reinstatement and backwages. 10 In the case at bar, there is a paucity of evidence to establish the charges of absenteeism and tardiness. We note that the employer company submitted mere handwritten listing and computer print-outs. The handwritten listing was not signed by the one who made the same. As regards the print-outs, while the listing was computer generated, the entries of time and other annotations were again handwritten and unsigned.11 We find that the handwritten listing and unsigned computer print-outs were unauthenticated and, hence, unreliable. Mere selfserving evidence of which the listing and print-outs are of that nature should be rejected as evidence without any rational

probative value even in administrative proceedings. For this reason, we find the findings of the Labor Arbiter to be correct. On this point, the Labor Arbiter ruled, to wit: x x x In the instant case, while the Notice of Termination served on the complainant clearly mentions the record book upon which her tardiness (and absences) was based, the respondent (company) failed to establish (through) any of these documents and the handwritten listing, notwithstanding, of (sic) the days when complainant was absent from work or late in reporting for work and even the computerized print-outs, do not suffice to prove the complainants absences were unauthorized as they could easily be manufactured. x x x 12 In IBM Philippines, Inc. v. NLRC,13 this Court clarified that the liberality of procedure in administrative actions is not absolute and does not justify the total disregard of certain fundamental rules of evidence. Such that evidence without any rational probative value may not be made the basis of order or decision of administrative bodies. The Courts ratiocination in that case is relevant to the propriety of rejecting the unsigned handwritten listings and computer print-outs submitted by private respondents which we quote, to wit: However, the liberality of procedure in administrative actions is subject to limitations imposed by basic requirements of due process. As this Court said in Ang Tibay v. CIR, the provision for flexibility in administrative procedure "does not go so far as to justify orders without a basis in evidence having rational probative value." More specifically, as held in Uichico v. NLRC: "It is true that administrative and quasi-judicial bodies like the NLRC are not bound by the technical rules of procedure in the adjudication of cases. However, this procedural rule should not be construed as a license to disregard certain fundamental evidentiary rules. While the rules of evidence prevailing in the courts of law or equity are not controlling in proceedings before the NLRC, the evidence presented before it must at least have a modicum of admissibility for it to be given some probative value. The Statement of Profit and Losses submitted by Crispa, Inc. to prove its alleged losses, without the accompanying signature of a certified public accountant or audited by an independent auditor, are nothing but self-serving documents which ought to be treated as a mere scrap of paper devoid of any probative value." The computer print-outs, which constitute the only evidence of petitioners, afford no assurance of their authenticity because they are unsigned. The decisions of this Court, while adhering to a liberal view in the conduct of proceedings before administrative agencies, have nonetheless consistently required some proof of authenticity or reliability as condition for the admission of documents. In Jarcia Machine Shop and Auto Supply, Inc. v. NLRC,14 this Court held as incompetent unsigned daily time records presented to prove that the employee was neglectful of his duties: Indeed, the DTRs annexed to the present petition would tend to establish private respondents neglectful attitude towards his work duties as shown by repeated and habitual absences and tardiness and propensity for working undertime for the year 1992. But the problem with these DTRs is that they are neither originals nor certified true copies. They are plain photocopies of the originals, if the latter do exist. More importantly, they are not even signed by private respondent nor by any of the employers representatives. x x x. In the case at bar, both the handwritten listing and computer print-outs being unsigned, the authenticity thereof is highly suspect and devoid of any rational probative value especially in the light of the existence of the official record book of the petitioners alleged absences and tardiness in the possession of the employer company. Ironically, in the memorandum charging petitioner and notice of termination, private respondents referred to the record book as its basis for petitioners alleged absenteeism and tardiness. Interestingly, however, the record book was never presented in evidence. Private respondents had possession thereof and the opportunity to present the same. Being the basis of the charges against the petitioner, it is without doubt the best evidence available to substantiate the allegations. The purpose of the rule requiring the production of the best evidence is the prevention of fraud, because if a party is in possession of such evidence and withholds it, and seeks to substitute inferior evidence in its place, the presumption naturally arises that the better evidence is withheld for fraudulent purposes which its production would expose and defeat. 15 Thus, private respondents unexplained and unjustified non-presentation of the record book, which is the best evidence in its possession and control of the charges against the petitioner, casts serious doubts on the factual basis of the charges of absenteeism and tardiness.

We find that private respondents failed to present a single piece of credible evidence to serve as the basis for their charges against petitioner and consequently, failed to fulfill their burden of proving the facts which constitute the just cause for the dismissal of the petitioner. However, the NLRC ruled that despite such absence of evidence, there was an admission on the part of petitioner in her Letter dated August 11, 1994 wherein she wrote: I am quite surprised why I have incurred 35 absences since August 1993 up to the present. I can only surmise that Saturdays were not included in my work week at your clinic. If you will please recall, per agreement with you, my work days at your clinic is from Monday to Friday without Saturday work. As to my other supposed absences, I believe that said absences were authorized and therefore cannot be considered as absences which need not be explained (sic). It is also extremely difficult to understand why it is only now that I am charged to explain alleged absences incurred way back August 1993.16 In reversing the decision of the Labor Arbiter, public respondent NLRC relied upon the supposed admission of the petitioner of her habitual absenteeism and chronic tardiness. We do not subscribe to the findings of the NLRC that the above quoted letter of petitioner amounted to an admission of her alleged absences. As explained by petitioner, her alleged absences were incurred on Saturdays. According to petitioner, these should not be considered as absences as there was an arrangement between her and the private respondents that she would not be required to work on Saturdays. Private respondents have failed to deny the existence of this arrangement. Hence, the decision of the NLRC that private respondent had sufficient grounds to terminate petitioner as she admitted the charges of habitual absences has no leg to stand on. Neither have the private respondents shown by competent evidence that the petitioner was given any warning or reprimanded for her alleged absences and tardiness. Private respondents claimed that they sent several notices to the petitioner warning her of her absences, however, petitioner refused to receive the same. On this point, the Labor Arbiter succinctly observed: The record is bereft of any showing that complainant was ever warned of her absences prior to her dismissal on August 9, 1994. The alleged notices of her absences from August 17, until September 30, 1993, from October until November 27, 1993, from December 1, 1993 up to February 26, 1994 and the notice dated 31 May 1994 reminding complainant of her five (5) days absences, four (4) half-days and tardiness for 582 minutes (Annex "1" to "1-D" attached to respondent' Rejoinder), fail to show that the notices were received by the complainant. The allegation of the respondents that the complainant refused to received (sic) the same is self-serving and merits scant consideration. xxx17 The Court, likewise, takes note of the fact that the two-day period given to petitioner to explain and answer the charges against her was most unreasonable, considering that she was charged with several offenses and infractions (35 absences, 23 half-days and 108 tardiness), some of which were allegedly committed almost a year before, not to mention the fact that the charges leveled against her lacked particularity. Apart from chronic absenteeism and habitual tardiness, petitioner was also made to answer for loitering and wasting of company time, getting salary of an absent employee without acknowledging or signing for it and disobedience and insubordination. 18 Thus, the Labor Arbiter found that actually petitioner tried to submit her explanation on August 11, 1994 or within the two-day period given her, but private respondents prevented her from doing so by instructing their staff not to accept complainants explanation, which was the reason why her explanation was submitted a day later. 19 The law mandates that every opportunity and assistance must be accorded to the employee by the management to enable him to prepare adequately for his defense.20 In Ruffy v. NLRC,21 the Court held that what would qualify as sufficient or "ample opportunity," as required by law, would be "every kind of assistance that management must accord to the employee to enable him to prepare adequately for his defense." In the case at bar, private respondents cannot be gainsaid to have given petitioner the ample opportunity to answer the charges leveled against her. From the foregoing, there are serious doubts in the evidence on record as to the factual basis of the charges against petitioner. These doubts shall be resolved in her favor in line with the policy under the Labor Code to afford protection to labor and construe doubts in favor of labor. 22 The consistent rule is that if doubts exist between the evidence presented by the employer and the employee, the scales of justice must be tilted in favor of the latter. The employer must affirmatively show

rationally adequate evidence that the dismissal was for a justifiable cause. 23 Not having satisfied its burden of proof, we conclude that the employer dismissed the petitioner without any just cause. Hence, the termination is illegal. Having found that the petitioner has been illegally terminated, she is necessarily entitled to reinstatement to her former previous position without loss of seniority and the payment of backwages. 24 WHEREFORE, the Decision of the National Labor Relations Commission, dated November 29, 1996 and the Resolution, dated February 20, 1997 are hereby REVERSED and SET ASIDE, and the Decision of the Labor Arbiter, dated May 15, 1996 REINSTATED. SO ORDERED. A.M. No. CA-05-18-P ZALDY NUEZ, Complainant, vs. ELVIRA CRUZ-APAO, respondent. DECISION April 12, 2005

PER CURIAM:
What brings our judicial system into disrepute are often the actuations of a few erring court personnel peddling influence to party-litigants, creating the impression that decisions can be bought and sold, ultimately resulting in the disillusionment of the public. This Court has never wavered in its vigilance in eradicating the so-called "bad eggs" in the judiciary. And whenever warranted by the gravity of the offense, the supreme penalty of dismissal in an administrative case is meted to erring personnel.1 The above pronouncement of this Court in the case of Mendoza vs. Tiongson2 is applicable to the case at bar. This is an administrative case for Dishonesty and Grave Misconduct 3 against Elvira Cruz-Apao (Respondent), Executive Assistant II of the Acting Division Clerk of Court of the Fifteenth (15 th) Division, Court of Appeals (CA). The complaint arose out of respondents solicitation of One Million Pesos (P1,000,000.00) from Zaldy Nuez (Complainant) in exchange for a speedy and favorable decision of the latters pending case in the CA,4 more particularly, CA-G.R. SP No. 73460 entitled "PAGCOR vs. Zaldy Nuez."5 Complainant initially lodged a complaint with the Action Center of the Television program Imbestigador of GMA Network,6 the crew of which had accompanied him to the Presidential Anti-Organized Crime CommissionSpecial Projects Group (PAOCC-SPG) in Malacaang where he filed a complaint for extortion 7 against respondent. This led to the conduct of an entrapment operation by elements of the Presidential Anti-Organized Crime Task Force (PAOCTF) on 28 September 2004 at the Jollibee Restaurant, 2nd Floor, Times Plaza Bldg., corner Taft and United Nations Avenue, Manila, 8 the place where the supposed hand-over of the money was going to take place. Respondents apprehension by agents of the PAOCTF in the course of the entrapment operation prompted then CA Presiding Justice (PJ) Cancio C. Garcia (now Supreme Court Justice) to issue Office Order No. 297-04-CG 9 (Order) which created an adhoc investigating committee (Committee). 10 The Committee was specifically tasked among others to conduct a thorough and exhaustive investigation of respondents case and to recommend the proper administrative sanctions against her as the evidence may warrant.11 In accordance with the mandate of the Order, the Committee conducted an investigation of the case and issued a Resolution12 dated 18 October 2004 where it concluded that a prima facie case of Dishonesty and Serious Misconduct against respondent existed. The Committee thus recommended respondents preventive suspension for ninety (90) days pending formal investigation of the charges against her.13 On 28 January 2005, the Committee submitted a Report14 to the new CA Presiding Justice Romeo A. Brawner with its recommendation that respondent be dismissed from service. Based on the hearings conducted and the evidence received by the Committee, the antecedent facts are as follows:

Complainants case referred to above had been pending with the CA for more than two years. 15 Complainant filed an illegal dismissal case against PAGCOR before the Civil Service Commission (CSC). The CSC ordered complainants reinstatement but a writ of preliminary injunction and a temporary restraining order was issued by the CA in favor of PAGCOR, thus complainant was not reinstated to his former job pending adjudication of the case. 16 Desiring an expeditious decision of his case, complainant sought the assistance of respondent sometime in July 2004 after learning of the latters employment with the CA from her sister, Magdalena David. During their first telephone conversation 17 and thereafter through a series of messages they exchanged via SMS,18 complainant informed respondent of the particulars of his pending case. Allegedly, complainant thought that respondent would be able to advise him on how to achieve an early resolution of his case. However, a week after their first telephone conversation, respondent allegedly told complainant that a favorable and speedy decision of his case was attainable but the person who was to draft the decision was in return asking for One Million Pesos (P1,000,000.00).19 Complainant expostulated that he did not have that kind of money since he had been jobless for a long time, to which respondent replied, "Eh, ganoon talaga ang lakaran dito, eh. Kung wala kang pera, pasensiya na. "20 Complainant then tried to ask for a reduction of the amount but respondent held firm asserting that the price had been set, not by her but by the person who was going to make the decision. 21 Respondent even admonished complainant with the words "Wala tayo sa palengke iho!"22 when the latter bargained for a lower amount.23 Complainant then asked for time to determine whether or not to pay the money in exchange for the decision. Instead, in August of 2004, he sought the assistance of Imbestigador.24 The crew of the TV program accompanied him to PAOCCF-SPG where he lodged a complaint against respondent for extortion.25 Thereafter, he communicated with respondent again to verify if the latter was still asking for the money26 and to set up a meeting with her.27 Upon learning that respondents offer of a favorable decision in exchange for One Million Pesos (P1,000,000.00) was still standing, the plan for the entrapment operation was formulated by Imbestigador in cooperation with the PAOCC. On 24 September 2004, complainant and respondent met for the first time in person at the 2 nd Floor of Jollibee, Times Plaza Bldg.,28 the place where the entrapment operation was later conducted. Patricia Siringan (Siringan), a researcher of Imbestigador, accompanied complainant and posed as his sister-in-law.29 During the meeting, complainant clarified from respondent that if he gave the amount of One Million Pesos (P1,000,000.00), he would get a favorable decision. This was confirmed by the latter together with the assurance that it would take about a month for the decision to come out. 30 Respondent also explained that the amount of One Million Pesos (P1,000,000.00) guaranteed a favorable decision only in the CA but did not extend to the Supreme Court should the case be appealed later. 31 When respondent was asked where the money will go, she claimed that it will go to a male researcher whose name she refused to divulge. The researcher was allegedly a lawyer in the CA Fifth (5 th) Division where complainant case was pending.32 She also claimed that she will not get any part of the money unless the researcher decides to give her some. 33 Complainant tried once again to bargain for a lower amount during the meeting but respondent asserted that the amount was fixed. She even explained that this was their second transaction and the reason why the amount was closed at One Million Pesos (P1,000,000.00) was because on a previous occasion, only Eight Hundred Thousand Pesos (P800,000.00) was paid by the client despite the fact that the amount had been pegged at One Million Three Hundred Thousand Pesos (P1,300,000.00).34 Complainant then proposed that he pay a down payment of Seven Hundred Thousand Pesos (P700,000.00) while the balance of Three Hundred Thousand Pesos (P300,000.00) will be paid once the decision had been released. 35 However, respondent refused to entertain the offer, she and the researcher having learned their lesson from their previous experience for as then, the client no longer paid the balance of Five Hundred Thousand Pesos (P500,000.00) after the decision had come out. 36 Complainant brought along copies of the documents pertinent to his case during the first meeting. After reading through them, respondent allegedly uttered, "Ah, panalo ka."37 The parties set the next meeting date at lunchtime on 28 September 2004 and it was understood that the money would be handed over by complainant to respondent then. 38 On the pre-arranged meeting date, five (5) PAOCTF agents, namely: Capt. Reynaldo Maclang (Maclang) as team leader, SPO1 Renato Banay (Banay), PO1 Bernard Villena (Villena), PO1 Danny Feliciano, and PO2 Edgar delos Reyes 39 arrived at around 11:30 in the morning at Jollibee.40 Nuez and Siringan arrived at past noon and seated themselves at the table beside the one occupied by the two (2) agents, Banay and Villena. Complainant had with him an unsealed long brown envelope containing ten (10) bundles of marked money and paper money which was to be given to respondent. 41 The envelope did not actually contain the One Million

Pesos (P1,000,000.00) demanded by respondent, but instead contained paper money in denominations of One Hundred Pesos (P100.00), Five Hundred Pesos (P500.00) and One Thousand Pesos (P1,000.00), as well as newspaper cut-outs. 42 There were also ten (10) authentic One Hundred Peso (P100.00) bills which had been previously dusted with ultra-violet powder by the PAOCTF.43 The three other PAOCTF agents were seated a few tables away 44 and there were also three (3) crew members from Imbestigador at another table operating a mini DV camera that was secretly recording the whole transaction. 45 Respondent arrived at around 1:00 p.m.46 She appeared very nervous and suspicious during the meeting. 47 Ironically, she repeatedly said that complainant might entrap her, precisely like those that were shown on Imbestigador.48 She thus refused to receive the money then and there. What she proposed was for complainant and Siringan to travel with her in a taxi and drop her off at the CA where she would receive the money. 49 More irony ensued. Respondent actually said that she felt there were policemen around and she was afraid that once she took hold of the envelope complainant proffered, she would suddenly be arrested and handcuffed. 50 At one point, she even said, "Ayan o, tapos na silang kumain, bakit hindi pa sila umaalis?,"51 referring to Banay and Villena at the next table. To allay respondents suspicion, the two agents stood up after a few minutes and went near the staircase where they could still see what was going on.52 Complainant, respondent and Siringan negotiated for almost one hour. 53 Complainant and Siringan bargained for a lower price but respondent refused to accede. When respondent finally touched the unsealed envelope to look at the money inside, the PAOCTF agents converged on her and invited her to the Western Police District (WPD) Headquarters at United Nations Avenue for questioning.54 Respondent became hysterical as a commotion ensued inside the restaurant. 55 On the way to the WPD on board the PAOCTF vehicle, Banay asked respondent why she went to the restaurant. The latter replied that she went there to get the One Million Pesos (P1,000,000.00).56 Respondent was brought to the PNP Crime Laboratory at the WPD where she was tested and found positive for ultra-violet powder that was previously dusted on the money. 57 She was later detained at the WPD Headquarters. At seven oclock in the evening of 28 September 2004, respondent called Atty. Lilia Mercedes Encarnacion Gepty (Atty. Gepty), her immediate superior in the CA at the latters house. 58 She tearfully confessed to Atty. Gepty that "she asked for money for a case and was entrapped by police officers and the media." 59 Enraged at the news, Atty. Gepty asked why she had done such a thing to which respondent replied, "Wala lang maam, sinubukan ko lang baka makalusot. "60 Respondent claimed that she was ashamed of what she did and repented the same. She also asked for Atty. Geptys forgiveness and help. The latter instead reminded respondent of the instances when she and her co-employees at the CA were exhorted during office meetings never to commit such offenses.61 Atty. Gepty rendered a verbal report62 of her conversation with their divisions chairman, Justice Martin S. Villarama. She reduced the report into writing and submitted the same to then PJ Cancio Garcia on 29 September 2004. 63 She also later testified as to the contents of her report to the Committee. During the hearing of this case, respondent maintained that what happened was a case of instigation and not an entrapment. She asserted that the offer of money in exchange for a favorable decision came not from her but from complainant. To support her contention, she presented witnesses who testified that it was complainant who allegedly offered money to anyone who could help him with his pending case. She likewise claimed that she never touched the money on 28 September 2004, rather it was Capt. Maclang who forcibly held her hands and pressed it to the envelope containing the money. She thus asked that the administrative case against her be dismissed. This Court is not persuaded by respondents version. Based on the evidence on record, what happened was a clear case of entrapment, and not instigation as respondent would like to claim. In entrapment, ways and means are resorted to for the purpose of ensnaring and capturing the law-breakers in the execution of their criminal plan. On the other hand, in instigation, the instigator practically induces the would-be defendant into the commission of the offense, and he himself becomes a co-principal. 64 In this case, complainant and the law enforcers resorted to entrapment precisely because respondent demanded the amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a favorable decision of the latters pending case.

Complainants narration of the incidents which led to the entrapment operation are more in accord with the circumstances that actually transpired and are more credible than respondents version. Complainant was able to prove by his testimony in conjunction with the text messages from respondent duly presented before the Committee that the latter asked for One Million Pesos (P1,000,000.00) in exchange for a favorable decision of the formers pending case with the CA. The text messages were properly admitted by the Committee since the same are now covered by Section 1(k), Rule 2 of the Rules on Electronic Evidence 65 which provides: "Ephemeral electronic communication" refers to telephone conversations, text messages . . . and other electronic forms of communication the evidence of which is not recorded or retained." Under Section 2, Rule 11 of the Rules on Electronic Evidence, "Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof . . . ." In this case, complainant who was the recipient of said messages and therefore had personal knowledge thereof testified on their contents and import. Respondent herself admitted that the cellphone number reflected in complainants cellphone from which the messages originated was hers.66 Moreover, any doubt respondent may have had as to the admissibility of the text messages had been laid to rest when she and her counsel signed and attested to the veracity of the text messages between her and complainant. 67 It is also well to remember that in administrative cases, technical rules of procedure and evidence are not strictly applied. 68 We have no doubt as to the probative value of the text messages as evidence in determining the guilt or lack thereof of respondent in this case. Complainants testimony as to the discussion between him and respondent on the latters demand for One Million Pesos (P1,000,000.00) was corroborated by the testimony of a disinterested witness, Siringan, the reporter of Imbestigador who was present when the parties met in person. Siringan was privy to the parties actual conversation since she accompanied complainant on both meetings held on 24 and 28 of September 2004 at Jollibee. Respondents evidence was comprised by the testimony of her daughter and sister as well as an acquaintance who merely testified on how respondent and complainant first met. Respondents own testimony consisted of bare denials and self-serving claims that she did not remember either the statements she herself made or the contents of the messages she sent. Respondent had a very selective memory made apparent when clarificatory questions were propounded by the Committee. When she was asked if she had sent the text messages contained in complainants cellphone and which reflected her cellphone number, respondent admitted those that were not incriminating but claimed she did not remember those that clearly showed she was transacting with complainant. Thus, during the 17 November 2004 hearing, where respondent was questioned by Justice Salazar-Fernando, the following transpired: Q: After reading those text messages, do you remember having made those text messages?

(Respondent) A: Only some of these, your honors.

Justice Salazar-Fernando: Which one? A: Q: A:

Sabi ko po magpunta na lang sila sa office. Yung nasa bandang unahan po, your Honors .
What else?

Tapos yung sabi ko pong pagpunta niya magdala siya ng I.D. or isama niya sa kanya si Len David.

Q: Okay, You remember having texted Zaldy Nuez on September 23, 2004 at 1309 which was around 1:09 in the afternoon and you said "di me pwede punta na lang kayo dito sa office Thursday 4:45 p.m. Room 107 Centennial Building. A: Yes, your Honors.

Q: And on September 23, 2004 at 1731 which was around 5:31 in the afternoon you again texted Zaldy Nuez and you said "Sige bukas nang tanghali sa Times Plaza, Taft Avenue, corner U.N. Avenue. Magdala ka ng I.D. para makilala kita o isama mo si Len David. A: Opo, your Honors.

Q: How about on September 23 at 5:05 in the afternoon when you said "Di pwede kelan mo gusto fixed price na iyon." A: I dont remember that, your Honors.

Q: Again on September 23 at 5:14 p.m. you said "Alam mo di ko iyon price and nagbigay noon yung gagawa. Wala ako doon." You dont also remember this? A: Q: A: Yes, your Honors. September 27 at 1:42 p.m. "Oo naman ayusin nyo yung hindi halatang pera" . You also dont remember that? Yes Your Honors.

Q: September 27 at 1:30 in the afternoon, "Di na pwede sabi sa akin. Pinakaiusapan ko na nga ulit iyon." You dont remember that? A: No, your Honors.69

Respondent would like this Court to believe that she never had any intention of committing a crime, that the offer of a million pesos for a favorable decision came from complainant and that it was complainant and the law enforcers who instigated the whole incident. Respondent thus stated that she met with complainant only to tell the latter to stop calling and texting her, not to get the One Million Pesos (P1,000,000.00) as pre-arranged. This claim of respondent is preposterous to say the least. Had the offer of a million pesos really come from complainant and had she really intended to stop the latter from corrupting her, she could have simply refused to answer the latters messages and calls. This she did not do. She answered those calls and messages though she later claimed she did not remember having sent the same messages to complainant. She could also have reported the matter to the CA Presiding Justice, an action which respondent admitted during the hearing was the proper thing to do under the circumstances. 70 But this course of action she did not resort to either, allegedly because she never expected things to end this way. 71 While claiming that she was not interested in complainants offer of a million pesos, she met with him not only once but twice, ostensibly, to tell the latter to stop pestering her. If respondent felt that telling complainant to stop pestering her would be more effective if she did it in person, the same would have been accomplished with a single meeting. There was no reason for her to meet with complainant again on 28 September 2004 unless there was really an understanding between them that the One Million Pesos (P1,000,000.00) will be handed over to her then. Respondent even claimed that she became afraid of complainant when she learned that the latter had been dismissed by PAGCOR for using illegal drugs. 72 This notwithstanding, she still met with him on 28 September 2004. Anent complainants narration of respondents refusal to reduce the amount of One Million Pesos (P1,000.000.00) based on the lesson learned from a previous transaction, while admitting that she actually said the same, respondent wants this Court to believe that she said it merely to have something to talk about. 73 If indeed, respondent had no intention of committing any wrongdoing, it escapes the Court why she had to make up stories merely to test if complainant could make good on his alleged boast that he could come up with a million pesos. It is not in accord with ordinary human experience for an honest government employee to make up stories that would make party-litigants believe that court decisions may be bought and sold. Time and again this Court has declared, thus:

"Everyone in the judiciary bears a heavy burden of responsibility for the proper discharge of his duty and it behooves everyone to steer clear of any situations in which the slightest suspicion might be cast on his conduct. Any misbehavior on his part, whether true or only perceived, is likely to reflect adversely on the administration of justice." 74 Respondent having worked for the government for twenty four (24) years, nineteen (19) of which have been in the CA, 75 should have known very well that court employees are held to the strictest standards of honesty and integrity. Their conduct should at all times be above suspicion. As held by this Court in a number of cases, "The conduct or behavior of all officials of an agency involved in the administration of justice, from the Presiding Judge to the most junior clerk, should be circumscribed with the heavy burden of responsibility."76 Their conduct must, at all times be characterized by among others, strict propriety and decorum in order to earn and maintain the respect of the public for the judiciary. 77 Respondents actuations from the time she started communicating with complainant in July 2004 until the entrapment operation on 28 September 2004 show a lack of the moral fiber demanded from court employees. Respondents avowals of innocence notwithstanding, the evidence clearly show that she solicited the amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a favorable decision. The testimony of Atty. Gepty, the recipient of respondents confession immediately after the entrapment operation, unmistakably supports the finding that respondent did voluntarily engage herself in the activity she is being accused of. Respondents solicitation of money from complainant in exchange for a favorable decision violates Canon I of the Code of Conduct for Court Personnel which took effect on 1 June 2004 pursuant to A.M. No. 03-06-13-SC. Sections 1 and 2, Canon I of the Code of Conduct for Court Personnel expressly provide: "SECTION 1. Court personnel shall not use their official position to secure unwarranted benefits, privileges or exemption for themselves or for others." "SECTION 2. Court personnel shall not solicit or accept any gift, favor or benefit based on any explicit or implicit understanding that such gift, favor or benefit shall influence their official actions." (Underscoring supplied) It is noteworthy that the penultimate paragraph of the Code of Conduct for Court Personnel specifically provides: INCORPORATION OF OTHER RULES "SECTION 1. All provisions of the law, Civil Service rules, and issuances of the Supreme Court governing the conduct of public officers and employees applicable to the judiciary are deemed incorporated into this Code." By soliciting the amount of One Million Pesos (P1,000,000.00) from complainant, respondent committed an act of impropriety which immeasurably affects the honor and dignity of the judiciary and the peoples confidence in it. In the recent case of Aspiras vs. Abalos,78 complainant charged respondent, an employee of the Records Section, Office of the Court Administrator (OCA), Supreme Court for allegedly deceiving him into giving her money in the total amount of Fifty Two Thousand Pesos (P52,000.00) in exchange for his acquittal in a murder case on appeal before the Supreme Court. It turned out that respondents representation was false because complainant was subsequently convicted of murder and sentenced to suffer the penalty of reclusion perpetua by the Supreme Court.79 The Supreme Court en banc found Esmeralda Abalos guilty of serious misconduct and ordered her dismissal from the service. This Court aptly held thus: "In Mirano vs. Saavedra,80 this Court emphatically declared that a public servant must exhibit at all times the highest sense of honesty and integrity. The administration of justice is a sacred task, and by the very nature of their duties and responsibilities, all those involved in it must faithfully adhere to, hold inviolate, and invigorate the principle that public office is a public trust, solemnly enshrined in the Constitution." 81 Likewise, in the grave misconduct case against Datu Alykhan T. Amilbangsa of the Sharia Circuit Court, Bengo, Tawi-Tawi, 82 this Court stated:

"No position demands greater moral righteousness and uprightness from the occupant than the judicial office. Those connected with the dispensation of justice bear a heavy burden of responsibility. Court employees in particular, must be individuals of competence, honesty and probity charged as they are with safeguarding the integrity of the court . . . . The High Court has consistently held that persons involved in the administration of justice ought to live up to the strictest standards of honesty and integrity in the public service. He should refrain from financial dealings which would interfere with the efficient performance of his duties. 83 The conduct required of court personnel must always be beyond reproach." 84 The following pronouncement of this Court in the case of Yrastorza, Sr. vs. Latiza, Court Aide, RTC Branch 14 Cebu City 85 is also worth remembering: "Court employees bear the burden of observing exacting standards of ethics and morality. This is the price one pays for the honor of working in the judiciary. Those who are part of the machinery dispensing justice from the lowliest clerk to the presiding judge must conduct themselves with utmost decorum and propriety to maintain the publics faith and respect for the judiciary. Improper behavior exhibits not only a paucity of professionalism at the workplace but also a great disrespect to the court itself. Such demeanor is a failure of circumspection demanded of every public official and employee." 86 In view of the facts narrated above and taking into account the applicable laws and jurisprudence, the Committee in their Report87 recommended that respondent be dismissed from government service for GRAVE MISCONDUCT and violation of Sections 1 and 2, Canon 1 of the Code of Conduct for Court Personnel. 88 Finding the Committees recommendation to be supported by more than substantial evidence and in accord with the applicable laws and jurisprudence, the recommendation is well taken. WHEREFORE, premises considered, respondent Elvira Cruz-Apao is found GUILTY of GRAVE MISCONDUCT and violation of SECTIONS 1 and 2 of the CODE OF CONDUCT FOR COURT PERSONNEL and is accordingly DISMISSED from government service, with prejudice to re-employment in any branch, instrumentality or agency of the government, including governmentowned and controlled corporations. Her retirement and all benefits except accrued leave credits are hereby FORFEITED. SO ORDERED. G.R. No. 117221 April 13, 1999 IBM PHILIPPINES, INC., VIRGILIO L. PEA, and VICTOR V. REYES, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and ANGEL D. ISRAEL, respondents.

MENDOZA, J This is a petition or certiorari to set aside the decision, 1 dated April 15, 1994, of the National Labor Relations Commission (NLRC) finding private respondent to have been illegally dismissed and ordering his reinstatement and the payment of his wages from August 1991 until he is reinstated. Petitioner IBM Philippines, Inc. (IBM) is a domestic corporation engaged in the business of selling computers and computer services. Petitioners Virgilio L. Pea and Victor V. Reyes were ranking officers of IBM during the period pertinent to this case. On April 1, 1975, private respondent Angel D. Israel commenced employment with IBM as Office Products Customer Engineer. For the next sixteen (16) years, he occupied two other positions in the company, 2 received numerous award, 3 and represented the company in various seminars and conferences in and out of the country. 4 On February 1, 1990, private respondent was assigned to the team supervised by petitioner Reyes.

On June 27, 1991, petitioner Reyes handed a letter to private respondent informing the latter that his employment in the company was to be terminated effective July 31, 1991 on the ground of habitual tardiness and absenteeism. The letter states, thus: June 27, 1991 Mr. Angel D. Israel Present Dear Angel, This refers to our previous discussion regarding your habitual absences and tardiness the last of which was on June 26, 1991. Your records will attest to the fact that on several occasions, your attention has been called to your habitual tardiness and non-observance of standing office procedures regarding attendance. Despite several opportunities given to you, you cannot seem to reform your ways and attitude on the matter of attendance. Considering that we area service-oriented company, you can appreciate that we cannot allow such a situation to continue lest we put the best interest of the Company in jeopardy. 1wphi1.nt Much to our regret, therefore, pleased (sic) be advised that the Company is terminating your employment effective July 31, 1991. You are requested to report to Personnel Department at your earliest convenience for the settlement of any money or benefits due you. Very truly yours, (Sgd) V.V. REYES Business Manager cc. L.L. Abano Alleging that his dismissal was without just cause and due process, private respondent filed a complaint with the Arbitration Branch of the Department of Labor and Employment (DOLE) on July 18, 1991. In his position paper filed on September 6, 1991, he claimed that he was not given the opportunity to be heard and that he was summarily dismissed from employment based on charges which had not been duly proven. 5 Petitioners denied private respondent's claims. It was alleged that several conferences were held by the management with private respondent because of the latter's unsatisfactory performance in the company and he was given sufficient warning and opportunity to "reform and improve his attitude toward attendance," 6 but to their regret, he never did. It was alleged that private respondent was constantly told of his poor attendance record and inefficiency through the company's internal electronic mail (e-mail) system. According to petitioners, this system allows paperless or "telematic" 7 communication among IBM personnel in the company offices here and abroad. An employee is assigned a "User ID" and the corresponding password is provided by the employee himself and, theoretically, known only to him. Employees are then expected to turn on their computers everyday, "log in" to the system by keying in their respective IDs and passwords in order to access and read the messages sent to and stored in the computer system. To reply, an employee types in or encodes his message-response and sends the same to the intended recipient, also via the computer system. The system automatically records the time and date each message was sent and received, including the identification of the sender and receiver thereof. All messages are recorded and stored in computer disks. 8

Attached to petitioners' position paper were copies of print-outs of alleged computer entries/messages sent by petitioner Reyes to private respondent through IBM's internal computer system. The following is a summary of the contents of the printours which mostly came from petitioner Reyes' computer: (a) Private respondent was admonished when he would miss out on meetings with clients and failed to attend to important accounts, such as that of Hella Philippines; 9 (b) Petitioner Reyes conducted consultations with private respondent concerning the latter's work habits;
10

(c) A new policy of requiring employees to be at the office at 8:30 a.m. every morning was adopted and employers were no longer allowed to sign out of the office by phone; 11 (d) Petitioner Reyes would type into his computer the records of the security guard which reflect private respondent's daily tardiness and frequent absences; 12 (e) Private respondent was admonished when he failed to respond to instructions from his superiors;
13

(f) IBM Australia, contacted by Hella Australia, once asked about the reported lack of attention given to Hella Philippines. 14 Private respondent directly answered IBM Australia, through telematic memo, and reported that Hella Philippines was deferring its computer plan and decided to use micros in the meantime; 15 (g) The said response was denied by Hella Australia which later made it clear that it would be buying "anything but IBM";
16

and

(h) While private respondent showed some improvement after consultations where he allegedly admitted his shortcomings, petitioner Reyes reported that he (private respondent) would eventually slide back to his old ways despite constant counselling and repeated warnings that he would be terminated if he would not improve his work habits. 17 Through these computer print-ours calling private respondent's attention to his alleged tardiness and absenteeism, petitioner sought to prove that private respondent was sufficiently notified of the charges against him and was guilty thereof because of his failure to deny the said charges. On March 13, 1992, the labor arbiter rendered a decision finding private respondent to have been terminated for cause and accordingly dismissing the complaint. Considering, however, the ground for termination as well as private respondent's long record of service to the company, the arbiter ordered the award of separation pay at the rate equivalent to one-half (1/2) month salary for every year of service. The dispositive portion of the decision reads WHEREFORE, judgment is hereby rendered in this case declaring respondent IBM Phils., Inc. not guilty of the charge of illegal dismissal. However, respondent company is directed to pay complainant Israel the sum of Two Hundred Forty Eight Thousand (P248,000.00) as separation pay. All other claims are denied for lack of merit. It appears, however, that prior to the release of the labor arbiter's decision at 11:21 a.m. on March 26, 1992, private respondent had filed a "Manifestation And Motion To Admit Attached New Evidence For The Complainant" which was received by the Arbitration Branch at 10:58 a.m. of the same day. The evidence consisted of private respondent's Daily Time Records (DTRs) for the period June 1, 1990 to August 31, 1990 and pay slips for the period January 1990 to June 1991 showing that private respondent did not incur any unexcused absences, that he was not late on any day within the period and that no deduction was made from his salary on account of tardiness or absences. Private respondent appealed to the NLRC which, on April 15, 1994, reversed the labor arbiter's decision and found private respondent's dismissal illegal. The NLRC ruled: (1) that the computer print-outs which petitioners presented in evidence to prove that private respondent's office attendance was poor were insufficient to show that the latter was guilty of habitual absences and tardiness; and (2) that private respondent was not heard in his defense before the issuance of the final notice of dismissal. 18 The dispositive portion of the NLRC's decision reads: WHEREFORE, the Decision dated March 13, 1992 is hereby SET ASIDE and a new one entered declaring the dismissal of the complainant as illegal. Respondent (sic) are hereby ordered to reinstate complainant to his

former position without loss of his seniority rights and to pay backwages starting August 1991 until reinstated at the rate of P40,516.65 a month including all its benefits and bonuses. Presiding Commissioner Edna Bonto-Perez dissented on the ground she found that petitioners have presented strong and convincing documentary evidence that private respondent was guilty of habitual tardiness and absences. She was also of the opinion that private respondent was sufficiently warned before he was actually dismissed. 19 Petitioners moved for a reconsideration, but their motion was denied in a resolution, dated July 20, 1994. Hence, this petition for certiorari. Petitioners contend that 1. THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK Of JURISDICTION IN HOLDING THAT NO JUST CAUSE EXISTS NOR WAS THERE DUE PROCESS OBSERVED IN THE DISMISSAL OF THE PRIVATE RESPONDENT BECAUSE THE COMPUTER PRINTOUTS WHICH PROVE JUST CAUSE AND DUE PROCESS ARE NOT ADMISSIBLE IN EVIDENCE. 2. THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OR EXCESS OF ITS JURISDICTION IN HOLDING THAT EVEN IF THE COMPUTER PRINTOUTS WERE ADMISSIBLE, PETITIONER FAILED TO SATISFY DUE PROCESS. We find petitioners' contention to be without merit. First. Petitioners argue that the computer print-outs submitted by them need not be identified or authenticated according to the rules of procedure in regular courts in order for the same to be admissible in evidence. They contend that technical rules of evidence do not apply to administrative/labor cases 20 and because of a relaxation of the rules of evidence, private respondent was in fact allowed by the labor arbiter to adduce additional evidence even after a decision had been rendered. 21 It is indeed true that administrative agencies, such as the NLRC, are not bound by the technical rules of procedure and evidence in the adjudication of cases. 22 This was the reason private respondent was allowed to submit additional evidence even after the case was deemed submitted for resolution by the labor arbiter. The practice of admitting additional evidence on appeal in labor cases has been sanctioned by this Court. 23 However, the liberality of procedure in administrative actions is subject to limitations imposed by basic requirements of due process. As this Court said in Ang Tibay v. CIR, 24 the provision for flexibility in administrative procedure "does not go so far as to justify orders without a basis in evidence having rational probative value." More specifically, as held in Uichico v. NLRC: 25 It is true that administrative and quasi-judicial bodies like the NLRC are not bound by the technical rules of procedure in the adjudication of cases. However, this procedural rule should not be construed as a license to disregard certain fundamental evidentiary rules. While the rules of evidence prevailing in the courts of law or equity are not controlling in proceedings before the NLRC, the evidence presented before it must at least have a modicum of admissibility for it to be given some probative value . The Statement of Profit and Losses submitted by Crispa, Inc. to prove its alleged losses, without the accompanying signature of a certified public accountant or audited by an independent auditor, are nothing but self-serving documents which ought to be treated as a mere scrap of paper devoid of any probative value. The computer print-outs, which constitute the only evidence of petitioners, afford no assurance of their authenticity because they are unsigned. The decisions of this Court, while adhering to a liberal view in the conduct of proceedings before administrative agencies, have nonetheless consistently required some proof of authenticity or reliability as condition for the admission of documents. In Rizal Workers Union v. Ferrer-Calleja, 26 this Court struck down the decision of the Director of Labor Relations which was based on an unsigned and unidentified manifesto. It was held:

From even a perfunctory assessment, it becomes apparent that the "evidence" upon which said decision is professedly based does not come up to that standard of substantiality. It is of course also a sound and settled rule that administrative agencies performing quasi-judicial functions are unfettered by the rigid technicalities of procedure observed in the courts of law, and this so that disputes brought before such bodies may be resolved in the most expeditious and inexpensive manner possible. But what is involved here transcends mere procedural technicality and concerns the more paramount principles and requirements of due process, which may not be sacrificed to speed or expediency. . . The clear message of [Article 221 of the Labor Code] is that even in the disposition of labor cases, due process must never be subordinated to expediency or dispatch. Upon this principle, the unidentified documents relied upon by respondent Director must be seen and taken for what they are, mere inadmissible hearsay. They cannot, by any stretch of reasoning, be deemed substantial evidence of the election frauds complained of. Likewise, in the case of EMS Manpower & Placement Services v. NLRC, 27 the employer submitted a photocopy of a telex which supposedly shows that the employee was guilty of "serious misconduct" and which became the basis of her dismissal. This Court ruled that the telex, a "single document, totally uncorroborated and easily concocted or fabricated to suit one's personal interest and purpose," 28 was insufficient to uphold the employer's defense. In Jarcia Machine Shop and Auto Supply, Inc. v. NLRC, this Court held as incompetent unsigned daily time records presented to prove that the employee was neglectful of his duties: Indeed, the [DTRs] annexed to the present petition would tend to establish private respondent's neglectful attitude towards his work duties as shown by repeated and habitual absences and tardiness and propensity for working undertime for the year 1992. But the problem with these DTRs is that they are neither originals nor certified true copies. They are plain photocopies of the originals, if the latter do exist. More importantly, they are not even signed by private respondent nor by any of the employer's representatives. . . . 29 In the case at bar, a specimen of the computer print-out submitted by petitioners reads: Date and time 10/12/90 09:23:1 From: REYES VV MNLVM1 To: ISRAEL MNLRVM Israel, A.D. SEC: I IBM INTERNAL USE ONLY Subject: Angel, have been trying to pin you down for a talk the past couple of days. Whatever happened to our good discussion 2 weeks ago? I thought you would make an effort to come in on time from then on? If you have problems which prevent you from coming in on time, let me know because I would really like to help if I can. The sum of all your quotas is less than mine so I really need all of you pitching in. Kindly take a look at your proofs in-tray as there are some to do's which are pending. Acts such as St. Louis U. and NEECO should be worth looking into as they've been inquiring about upgrading their very old boxes. If you are too tied up for these accounts do let me know so I can reassign. By Monday morning please. Let's give it that final push for the branch!. Regard from the APPLICATION MNLVM 1 (REYES VV) SYSTEMS MARKETING group T (832) 8192-279

Victor V. Reyes Marketing Manager Not one of the 18 print-out copies submitted by petitioners was ever signed, either by the sender or the receiver. There is thus no guarantee that the message sent was the same message received. As the Solicitor General pointed out, the messages were transmitted to and received nor by private respondent himself but his computer. 30 Neither were the print-outs certified or authenticated by any company official who could properly attest that these came from IBM's computer system or that the data stored in the system were not and/or could not have been tampered with before the same were printed out. It is noteworthy that the computer unit and system in which the contents of the print-outs were stored were in the exclusive possession and control of petitioners since after private respondent was served his termination letter, he had no more access to his computer. 31 Second. Even if the computer print-outs were admissible, they would not suffice to show that private respondent's dismissal was justified. Petitioners' contention is that private respondent was repeatedly warned through computer messages for coming in late or not reporting at all to the office during the period May 1990 June 1991 but he never denied the allegavtions. Therefore, he must be deemed to have admitted these allegations. 32 But the burden of proving that the dismissal was for just cause is on petitioners. They cannot simply rely on any admission by private respondent implied from his failure to deny the alleged computer messages to him which he denied he had ever received. On the other hand, private respondent's additional evidence, consisting of DTRs and reporting pay slips, show that he did not incur unexcused absences or tardiness or that he suffered deduction in pay on account of such absences or tardiness. Indeed, petitioners could have easily proven their allegations by presenting private respondent's DTRs. Since these were in petitioners' possession, their non-production thereof raises the presumption that if presented they would be adverse to petitioners. This is precisely what the best evidence rule guards against. The purpose of the rule requiring the production of the best evidence is the prevention of fraud, because if a party is in possession of such evidence and withholds it, and seeks to substitute inferior evidence in its place, the presumption naturally arises that the better evidence is withheld for fraudulent purposes which its production would expose and defeat. 33 Private respondent's DTRs for the period June 1, 1990 August 30, 1990 34 show that while his attendance record may not have been perfect, it was at least satisfactory. The days when private respondent did not report to the office were credited either as vacation or as sick leaves. On days when he was away on business trips, his destination was shown. The DTRs were signed by petitioner Victor Reyes. It is said that the DTRs presented were only for the period when private respondent's attendance was excellent; he took care not to submit his DTRs for other months during which he was often late in coming to office. 35 As the Solicitor General has pointed out, however, it was precisely during that period of June 1, 1990 August 30, 1990 when, according to the print-outs submitted by petitioners, private respondent was often late or absent. Nor is there proof to support petitioners' allegation that it was private respondent's secretary and not him who often signed the attendance sheet. 36 Indeed, petitioners did not present private respondent's secretary or, at the very least, attach an affidavit sworn to by her to prove their allegations and thus dispute the DTRs presented by private respondent. This, notwithstanding ample opportunity to do so. On the other hand, as already stated, the DTRs, showing private respondent's good attendance, were signed by petitioner Victor Reyes himself, and no good reason has been shown why they cannot be relied upon in determining private respondent's attendance. Third. Even assuming the charges of habitual tardiness and absenteeism were true, such offenses do not warrant private respondent's dismissal. He has not been shown to have ever committed any infraction of company rules during his sixteen-year stint in the company. Although it is alleged that he failed to attend important client meetings and gave false representations to a valued client to cover his tracks, there is no record finding him guilty of such offenses. Dismissal has always been regarded as the ultimate penalty. 37 The fact that lapses in private respondent's attendance record may have occurred only during his final

year in the company, after a long period of exemplary performance, makes petitioners' contention dubious. While it is true that long years of service is no guarantee against dismissal for wrongdoing, 38 at least the employee's record does provide an index to his work. In case doubt exists between the evidence presented by the employer and that presented by the employee, the scales of justice must be tilted in favor of the latter. 39 Fourth. The print-outs likewise failed to show that private respondent was allowed due process before his dismissal. The law requires an employer to furnish the employee two written notices before termination of his employment may be ordered. The first notice must inform him of the particular acts or omissions for which his dismissal is sought, the second of the employer's decision to dismiss the employee after he has been given the opportunity to be heard and defend himself. 40 These requirements were not observed in this case. As noted earlier, there is no evidence that there was an exchange of communication between petitioners and private respondent regarding the latter's supposed substandard performance. Private respondent has consistently denied, however, that he was ever advised of the charges hurled against him. The so-called one-onone consultations or "personal counsellings" mentioned in the print-outs between petitioner Reyes and private respondent concerning the latter's work habits do not satisfy the requirements of due process, as we had occasion to say in Pono v. NLRC. 41 Consultations or conferences may not be a substitute for the actual holding of a hearing. Every opportunity and assistance must be accorded to the employee by the management to enable him to prepare adequately for his defense, including legal representation. 42 In Ruffy v. NLRC, 43 this Court held that what would qualify as sufficient or "ample opportunity," as required by law, would be "every kind of assistance that management must accord to the employee to enable him to prepare adequately for his defense." No such opportunity was given to private respondent in this case. He was simply served his termination notice without being heard in his defense. Fifth. Petitioners allege that the NLRC, after concluding that the evidence submitted by them were not properly identified or authenticated, should have remanded the case to the arbiter for "clarificatory" hearing. A formal hearing was not de rigueur. The 1994 Rules of Procedure of the NLRC, 4 provides: Immediately after the submission by the parties of their position papers/memorandum, the Labor Arbiter shall, motu proprio, determine whether there is need for a formal trial or hearing. At this stage, he may, at his discretion and for the purpose of making such determination, ask clarificatory questions to further elicit facts or information, including but not limited to the subpoena of relevant documentary evidence, if any, from any party or witness. As held by the NLRC: Aside from these computer print-outs, respondents have not presented any other evidence to prove that complainant was ever called for investigation nor his side heard prior to receipt of the termination letter dated June 27, 1991. In fact, even if we consider these computer print-outs, respondents still failed to satisfy the requirements of procedure due process. . . . In this particular case, we observe that there is failure on the part of respondents to prove the existence of a legal cause. The evidence presented before the Labor Arbiter did not sufficiently and clearly support the allegation of respondents that complainant committed habitual absences and tardiness resulting into inefficiency. 44 In spite of this finding, petitioners failed to adduce additional evidence when they moved for a reconsideration of the NLRC decision or when they filed the instant petition. Despite the opportunities afforded them, petitioners failed to substantiate their allegations. Neither have they shown sufficient reasons to convince this Court that, if the case were to be remanded to the arbiter or a formal hearing, they would be able to present evidence which they could not have presented during the initial stages of this case. As we held in Megascope General Services v. NLRC: 45 As regards petitioner's contention that a hearing has to be conducted to be fully ventilate the issues in the case, . . . [s]uffice it to state that nonverbal devices such as written explanations, affidavits, position papers

or other pleadings can establish just as clearly and concisely an aggrieved party's defenses. Petitioner was amply provided with the opportunity to present evidence that private respondents were not its employees. Indeed, it was petitioner's failure to present substantial evidence to buttress its claims that worked to its disadvantage and not the absence of a full-blown hearing before the public respondent . WHEREFORE, the petition is DISMISSED and the decision of the NLRC, dated April 15, 1994, is hereby AFFIRMED.1wphi1.nt SO ORDERED.