Petitioner Felix Cruz, Jr., an employee of private respondent Citytrust Banking Corporation, held the confidential position of Micro Technical Support Officer responsible for evaluating requests for Micro Computers and accepting bids submitted thereof. Following feedbacks that certain irregularities were being committed in the bidding process, a special investigation was conducted and found petitioner was receiving unauthorized and unreported commissions and rebates from suppliers. An administrative hearing ensued and petitioner being found guilty, Citytrust terminated his employment. Aggrieved, petitioner filed an illegal dismissal complaint before the Labor Arbiter. The LA deciding in petitioner’s favor, Citytrust appealed to NLRC which ruled to set aside the LA decision and dismiss the case. Thus, petitioner filed a petition for certiorari with the SC, which referred the same to CA pursuant to the St. Martin ruling. CA dismissed the petition, sustaining the NLRC ruling. Instead of MR, petitioner filed again the present petition for certiorari.
Respondent mainly contends that the present petition for certiorari is not the proper remedy to assail the subject decision of the CA. Respondent argues that petitioner’s failure to file a petition for review cannot be remedied by the filing of a special civil action for certiorari.
Whether petitioner availed the proper remedy to assail the decision of the Court of Appeals.
First, it is well settled that the remedy to obtain reversal or modification of judgment on the merits is appeal. This is true even if the error, or one of the errors, ascribed to the court rendering the judgment is its lack of jurisdiction over the subject matter, or the exercise of power in excess thereof, or grave abuse of discretion in the findings of facts or of law set out in the decision.
Petitioner claims that he received the CA Decision on May 17, 2001. Consequently, he had 15 days from said date of receipt of assailed judgment, or until June 1, 2001, within which to file a petition for review on certiorari, the reglementary period prescribed by Rule 45 to avail of said action. On July 9, 2001 close to two months after said receipt, petitioner filed the present petition. Evidently, petitioner has lost his remedy of appeal. The filing of the instant petition for certiorari cannot be used as a means of recovering his appeal as it is settled that certiorari is not a substitute for lost appeal. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive.
Second, assuming for the sake of argument that the present petition for certiorari is the appropriate remedy, the records of the instant case show that petitioner failed to file a motion for reconsideration of the decision of the appellate court, thus, depriving the CA of the opportunity to correct on reconsideration such errors as it may have committed. The general rule is that a motion for reconsideration is indispensable before resort to the special civil action for certiorari to afford the court or tribunal the opportunity to correct its error, if any. This rule is subject to certain recognized exceptions. None of these exceptions are present in the instant case. Hence, petitioner’s unjustified failure to file a motion for reconsideration of the decision of the CA before recourse to this special civil action was made calls for the outright dismissal of this case.