MAXIMUM ALLOWABLE REGLEMENTARY PERIOD TO FILE PETITION FOR REVIEW ON CERTIORARI IS 45 DAYS NOT 60 DAYS

Nueva Ecija II Electric Cooperative, Inc., et al. vs. Elmer B. Mapagu
G.R. No. 196084, February 15, 2017

Facts:

Respondent Elmer B. Mapagu (Mapagu) was employed with NEEC as a data processor since May 1983. 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.

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 (k Whrs) 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 the NEEC Code of Ethics and Discipline (NEEC Code).

Mapagu received a Notice of Dismissal from service. Hence, he filed a Complaint for illegal dismissal.

LA Ruling:

The LA dismissed the complaint for lack of merit.

NLRC Ruling:

The NLRC reversed and set aside the ruling of the LA.

NEEC sought for reconsideration but this was denied by the NLRC. Petitioners elevated the case to the CA via a petition for certiorari under Rule 65 of the Rules of Court (Rules).

CA Ruling:

In its September 2, 2010 Resolution, the CA dismissed the petition outright. It found that petitioners failed to sign the attached Verification and Certification against Forum Shopping and held that a defective verification and certification is equivalent to non-compliance with the Rules.

It also constitutes valid cause for dismissal of the petition under the last paragraph of Section 3, Rule 46. Further, Section 5, Rule 7 of the Rules which requires the pleader to submit a certification of non-forum shopping executed by the plaintiff or principal party, is mandatory. Subsequent compliance cannot excuse a party from failing to comply in the first place.

Petitioners filed a Motion for Reconsideration which the CA denied. The CA noted that petitioners still failed to attach a signed verification and certification of non-forum shopping. Petitioners seek recourse with the Supreme Court via a petition for review under Rule 45.

Issue/s:

Whether or not the petition was filed within the reglementary period.

SC Ruling:

Petitioners received the September 2, 2010 Resolution of the CA on September 14, 2010. They filed a Motion for Reconsideration and received the Resolution denying the same on March 17, 2011. Thereafter, they filed a Motion for Extension of Time to File Petition for Review on Certiorari with Payment of Docket Fees.

They sought an extension of 20 days from April 1, 2011 or until April 21, 2011 within which to file the appeal. On May 6, 2011, they filed this petition. They allege that they have 60 days to file the appeal and in fact, they claim that they are filing it 11 days ahead of the reglementary deadline.

The right to appeal is a mere statutory privilege and must be exercised only in the manner and in accordance with the provisions of the law. One who seeks to avail of the right to appeal must strictly comply with the requirement of the rules. Failure to do so leads to the loss of the right to appeal.

Petitioners confuse petitions for review on certiorari under Rule 45 with petitions for certiorari under Rule 65. It is the latter which is required to be filed within a period of not later than 60 days from notice of the judgment, order or resolution. If a motion for new trial or reconsideration is filed, the 60-day period shall be counted from notice of the denial of the motion.

A party litigant wishing to file a petition for review on certiorari must do so within 15 days from notice of the judgment, final order or resolution sought to be appealed. Here, petitioners received the Resolution of the CA denying their Motion for Reconsideration on March 17, 2011. Under the Rules, they have until April 1, 2011 to file the petition. However; they filed the same only on May 6, 2011. This was 50 days beyond the 15-day period provided under Section 2, Rule 45 and 30 days beyond the extension asked for. Even if petitioners were given the maximum period of extension of 30 days, their petition before us still cannot stand. The Rules allow only for a maximum period of 45 days within which an aggrieved party may file a petition for review on certiorari. By belatedly filing their petition with the CA, petitioners have clearly lost their right to appeal.

All told, considering that the SC lost jurisdiction to review the case in view of the finality of the CA Decision, the Court found no further reason to delve into the other issues raised by petitioners.