G.R. No. 129449 - CISELL A. KIAMCO, VS. NATIONAL LABOR RELATIONS COMMISSION (4TH DIVISION), PHILIPPINE NATIONAL OIL COMPANY (PNOC) AND PNOC-ENERGY DEVELOPMENT CORPORATION (PNOC-EDC). D E C I S I O N - Supreme Court E-Library

Ruling

WHEREFORE x x x x the decision appealed from is REVERSED, VACATED and SET ASIDE and a new one entered declaring the complainant as a regular employee of the respondents and to have been illegally dismissed by the latter. Ordering respondents to REINSTATE the complainant to his former position without loss of seniority rights and privileges with back wages from the date of his dismissal up to actual reinstatement less any income he may have earned during the pendency of the case. [10] On 12 November 1996 private respondents filed a Motion for Reconsideration of the decision of the NLRC [11] contending that it erred in holding that Kiamco was a regular employee and that the findings of the Labor Arbiter that Kiamco was a project employee should be affirmed. On 23 January 1997 the NLRC issued a Resolution modifying its 27 September 1996 Decision in NLRC Case No. V-0316-95 the dispositive portion of which reads - WHEREFORE x x x x the decision in question is MODIFIED in accordance with Our above discussion. Accordingly, the complainant-appellant is declared a project employee at respondent's Geothermal Agro-Industrial Demonstration Plant and to continue with said employment until the full completion of the project but in the absence of proof to that effect, complainant is hereby awarded back wages for a period of six (6) months or in the amount of P23,100.00. The order declaring the complainant-appellant as a regular employee of respondent Philippine National Oil Corporation [sic], and for said company to reinstate the complainant with full back wages is hereby deleted. [12] In his petition for certiorari Kiamco assails the 23 January 1997 Resolution of the NLRC. He charges the NLRC with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the questioned Resolution and prays that it be nullified and he reinstated to his former position. He also seeks payment of back wages, damages and attorney's fees. The petition also raises the following issues: (a) whether the petition should be dismissed for failure of petitioner Kiamco to file a motion for reconsideration with the NLRC; (b) whether petitioner is a regular employee or a project employee; (c) whether petitioner is entitled to reinstatement without loss of seniority rights and privileges and to the payment of full back wages; and, (d) whether petitioner is entitled to moral and exemplary damages. Both the Solicitor General and private respondents insist that the petition should be dismissed because of petitioner's failure to file a motion for reconsideration with the NLRC, pleading that - It is undisputed that petitioner failed to file a motion for reconsideration of the assailed Resolution before filing this petition. Such being the case, the assailed Resolution became final and executory, petitioner can no longer question the correctness of the assailed Resolution before this Honorable Court. As ruled in Palomado v. NLRC (257 SCRA 680, 687-699 [1996] ): Additionally, t