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[TIONG KING v. COURT OF INDUSTRUIAL RELATIONS](http://lawyerly.ph/juris/view/c168c?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. L-3587-Feria, Dec 21, 1921 ]

TIONG KING v. COURT OF INDUSTRUIAL RELATIONS +

DECISION

G. R. No. L-3587-Feria

[ G. R. No. L-3587-Feria, December 21, 1921 ]

TIONG KING PETITIONER VS. COURT OF INDUSTRUIAL RELATIONS AND THE NATIONAL TAILOR'S ASSOCIATION, RESPONDENTS.

D E C I S I O N

FERIA, J.:

I dissent from the decision of the majority because it is absolutely wrong from the beginning to the end. It begins by declaring as a matter of fact that the petitoner Tiong King was the owner and operator of the Army Shirt Factory, contrary to the finding of fact of the Court of Industrial Relations to the effect that, according to the evidence, "Tiong Bang is not a lessee, as claimed, muoh less the true and real owner of the tailorshop the closing of which is being sought in the present proceeding, but Gaw Fun So, and that all contraots executed between Gaw pun So and his wife Ng Ki on one side and Tiong King on the other, were pure and simple devise to indirectly compel the members of the petitioning association to abandon the work and be dismissed from the service." And the decision ends by reversing the resolution of the Court of Industrial Relations dated Ootober 31, 1949, and affirming the resolution of said Coulrt dated May 27, 1949, signed then by Judges Bautista, lantin and Castillo, which beoame functus officio not only because, upon a motion for reconsideration thereof, Judge Castillo withdrew his conformity therewith by concurring in the dissenting resolution of Judges Roldan and Jimenez of June 30, 1949, whioh was converted into a majority resolution by resolution of Ootober 31, 1949; but Judges lantin and Bautista abandoned said resolution of May 27, 1949, by writing a separate dissenting opinion dated November 10, 1949.

Section 2 of Rule 44, relating to appeal from an award, order or decision of the Court of Industrial RElations to the Supreme Court, provides that only question of law may be raised on appeal by certiorari, and this Court has also so ruled in several oases among them in case of Leyte Land Transportation Co., Inc. vs. Leyte Laborers Union,[1] G. R. No. L-1377, promulgated on May 20, 1930. In accordance therewith, attorney for the petitioner Tiong King did not assign in his petit ion for certiorari as erroneous the finding of the Court of Industrial Relations "that Tiong King is not a lessee much less the true owner or operator of the tailorshop sought to be olosed in the present proceeding, and that all contracts executed between Gaw Pun So and his wife on one side and Tiong King on the other were pure and simple devise to indirectly compel the members of the respondent National Tailors Association to abandon the work or to be dismissed from the service.11 The resolution appealed from does not declare Gaw Pun So and Ng Qui jointly liable with Tiong King for the payment of the petitioners' salaries and wages; and therefore the only questions raised in the petition are the following:

"(1) That nerein petitioner Tiong King could not legally close his tailor shop or tailoring business, from May 30, 1948, notwithstanding the fact that his P7,000.00 working capital had beoome exhausted;

"(2) That petitioner Tions King was under obligation to pay the wages of his laborers and seamstresses, alleged members of the National Tailors' Association, numbering more than forty (40), from May 30, 1948, in the amount of over 540,000.00, ¦which Tiong King did not have;" (Petition for certiorari, p. 10)

This case was set for hearing on September 18, 1950. On September 16 attorney for the petitioner-appellant moved that he be given 10 days with/which to submit a brief memorandum in lieu of oral argument; and the attorney for the respondent also prayed that he be given 10 days from reoeipt of the memorandum for the petitioner to make/reply thereto. Both petitions were granted; but neither the petitionerappellant nor the respondent appellee filed their memora|ida. "What the petitioner filed is a constancia whioh reads as' follows;

"NOW COMES the undersigned attorney for the petitioner Tiong King, and before this Honorable Supreme Court respeotfully makes of record the following:

"1. That after a careful study and examination of the memorandum brief filed by the respondents, it is deemed unnecessary to file any extensive memorandum of oral argument, in reply thereto, and submits the case for deoision.

"2. And that petitioner merely reiterates his contention that no person can be compelled to continue in business and pay his laborers, once his capital has been exhausted, as shewn in the authority s cited in our memorandum dated April 12, 1950, filed in this case."

"So this case was submitted for decision and the only question raised or reiterated by the petitioner-appellant is his contention that wno person can be compelled to continue in business and pay his laborers, once his capital has been exhausted."

No question is raised or may be raised in this appeal by certiorari that Tiong King is not the owner or operator as lessee of the Army Shirt Factory, because that is a question of fact decided conclusively by the loiser oourt against the appellant. But the majority decision, onntrary to what appears in the record, says the following:

"The decisive question before us, therefore, is not whether Tiong King had no more capital with which to continue the Army Shirt Factory, but whether he was the owner or operator thereof and had the right to file the petition in the Court of Industrial Relations to close the same. Upon this point, it is only sufficient to recall that the National Tailors Association entered into a stipulation with Tiong King alone whereby they agreed that all cases against the former owners ot the business were terminated. As correctly observed in the resolution of the Court of Industrial Halations dated Lay 27, 1949,. granting the petition of Tiong King, '3ste traspaso del negoeio a favor de Tiong King.no se hizo a escondidas. Lo sabia la misma peticionaria; de alii qua esta pidio primero al Tribunal que se la incluyera a aquel como uno de los recurridos en estas actuaciones.' That Tiong King vias conceded to be the owner and operator of the Army Shirt Factory at the time his petition to close it was filed, is conclusively borne out by the fact that Presiding Judge Roldan in his decision of January 15, 1949, ordered Tiong King, and not Gaw Pun So, to pay the salaries and wages of the personnel."

As to the question of faot whether or not Tiong King was the owner and operator of the Army Shirt Factory, the Court of Industrial Relations in its resolution appealed from, found as already stated above, "that Tiong King is not a lessee much less the true owner or operator of the tailor shop sought to be closed in the present proceeding", and therefore ij'can not be raised on appeal by certiorari in this Supreme Court in accordance with the provision of Section 2 of Rule 44. Besides, the faot that the resolution of the trial Judge Roldan of January 17, 1949, affirmed by the Court of Industrial Halations in bane in its resolutions of June 30 and October 31, 1949,"ordered Tiong to pay the salaries and wages of-the personnel," does not prove that he is the true owner or operator of the factory, because Tiong Eing is liable for the payment of sa«tt salaries and wages for having acted in collusion with. Gaw Pun So"according to the finding of fact of court below. If the lower court did not declare Gaw Pun So »2»» jointly and severally liable with Tiong King for the payment of said salaries and wages, it is because the former was not a jearty in this proceeding.

But the decision of the majority in order to circumvent the provisions of section 2 of Rule 44, adds; "On the surface it may be argued that vie have reversed, in violation of section 2, Rule 44, of the Rules of Court, the Court of Industrial Relations on its finding of fact that Tiong King -was neither the owner nor the lessee of the business in question. At bottom, however, the argument must fall beoause, regardless of said result, vie have merely passed uppn and determined the legal effect of the agreement entered into between the National Tailors Association and Tiong King, to the complete exclusion of the forjwr owners, and duly approved by the Court of Industrial Relations. In other words, we have in essence only held that the Court of Industrial Relations erred in construing the legal implications of said agreement."

There is nothing in the reoord to show what were the facts in controversy which were the object of the agreement (approved by the lower court on February 17, 1948) entered iiito between the petitioner National Tailors Assooiation and Tions King in which it was stipulated that "This agreement is between the National Tailors Assooiation's and Tiong King,,and all oases are terminated" (against, Gaw Pun So and his wife Ng Ki), except what appears in the resolution appealed from, -which says the following:

"Said agreement only referred to the demands appearing in the petition of the National Tailors' Association subjeot of Case No. 117-7, as there was then no other case or ca'ses pending between the petitioner National Tailors' Association and tha respondents.Tiong King, and Gaw Pun So. Cases No. 117-7(1), 117-7(2) and 117-V(3) which are incidents of Case No. 117-7 were filed with this Court, as the records show, after said agreement has been signed.

* * * * * * *

"It is trvle as a part of the quoted order, it vsas stated that the agreement was between National Tailors' Association and Mr. Tiong King. There was no finding of the Court, however, that Mr. Tiong King was the owner, neither a finding that he was the lessee. * * *

* * * * * * *

"Further more, although it is true that the agreement between the National Tailors' Association and respondents Gaw Pun So and Tiong King in Case No. 117-7 which was recognized by the Court on February 17, 1948, absolved Gaw Pun So ana Tiong King of whatever responsibility they might have in connection with the case, it did not contemplate to relieve Gaw Pun So or any obligation that might be the result of his later acts, as that created by collusion between him and Tiong King."

This findings of fact of the majority of the lower court in its resolution of June 30, 1949, appealed from is not contradicted but admitted by the minority, for Judges Lanting and Bautista who abandoned their resolution of May 27, 1949," from which the excerpt quoted in the decision was taken, wrote a dissenting opinion dated Nov. 10, 1949, in which said judges say" "That the question of ownership of the business or that of its lease has never bean squarely presented to and decided by this Court before it is true, but that is no protof at all that Tiong King is not the right party to represent the respondent Army Shirt Pactory. Not even in the instant incidental case has that issue been squarely presented by the petitioner. It was only in the decision of Jan. 13, 1949, that the trial judge concluded that there was collusion between Tiong King and Gaw Pun So and that the former is neither the owner of the business nor the lessee of its premises and the sewing machines used in connection therewith."

The ownership of the business or that of its lease not having been in question between the parties, the above mentioned agreement approved by the lov.er court on February 17, 1948, can not have the legal implication of recognizing that Tiong King was the lessee muoh less the owner or operator of the business, contrary to the finiiags of fact of the Court of Industrial Relations. Besides, even assuming that said agreement had recognized Tiong King as the lessee or operator of the business and that question became res ajudicata by its approval by the lower court on February 17, 1948, the legal effect of such agreement was limited to the question then in controversy before and up to the tide of approval of the agreement by the court. But the petitioners, one of the signatory parties were not in estoppel to show by the subsequent acts of Tions King and Gavt Pun So, and the Court of Industrial Relations to declare on Jan. 11, 1949, or about one year afterwards, that said agreement was entered into and the approval thereof by the oourt was obtained through fraud, for Tiong King was a mere dummy .of Gati Pun So, and "all contracts exeouted between Oterw Pun So and his wife Ng Hi on one side, and Tiong King on the other side, were pure and simple devisf to indirectly compel the members of the petitioning association to abandon the work or to be dismissed from the service." And furthermore, even if the legal effect of the agreement is that Tiong King was the owner, lessee or operator of the Army Shirt Factory, vafcfl no evidence was presented afterwards to show the collusion between Tiong King and Gaw Pun So in entering into said agreement and obtaining the approval of the lower court, and such question is purely of law, this Supreme Court can not pass upon that question because it is not raised by the petitioner-appellant as already shown at the beginning of this opinion.

The remaining question is, whether Tiong King was neither the owner nor the lessee or operator of the Army Shirt factory, had the right to close said factory, for according to the decision of the majority above quoted, "The decisive question before us, is not whether Tioag King had no more capital mith which to continue the Army Shirt Factory, but whether he was the owner and operator thereof and had the right to file the petition in the Gourt of Industrial Relations to close the sane." But the majority, in discussing and deciding this second question, forgetting vihat the decision has previously stated, and we have just oopied and underlined, says "There being no question that Tiong King's capital invested in the Army Shirt Factory was almost exhausted at the time of the filing of his petition to close it, said petition must necessarily be granted. It is admitted by all the Judges of the Court of Industrial Halations that an employer may close his business, provided the same is done in good faith and is due to causes beyond his control. To rule otherwise, would be oppressive and inhuman."

In reply to the above, it is sufficient to say that, it having been found by the Court of Industrial Relations in its resplution appealed from that Tiong King was not the lessee, mueh less the true owner or operator of the Army Shirt Factory, but a mere dummy of Gaw Pun So and his wife, Tiong King cannot be the true owner of the capital invested in said factory. Therefore the above quoted ruling or conclusion has no basis on fact or law, and therefore not applicable to the petitionerappellant Tiong King in the present case.

The reason why the constant ruling of the Court of Industrial Relations that "an owner or employer may close his business, provided the same is done in good faith and.is due to causes beyond his control" has not been applied to Tiong King in this case, is because he was found by the lower court to be, not the true owner or operator of a business, but a dummy vk Gaw Pun So. It would be useless or of no effect to permit a person, who is not the true owner but a dummy for another, to close the business on the condition, almost always imposed by the Court of Industrial Relations upon an employer authorized to close his business, that he should readmit his former laborers and employees siiould he reopen his business in the future; because the true onwer and not the dummy is the one who may reopen the business, and the true owner would not be bound to comply with suoh condition should he reopen his business. To authorize Tiong King to close the business in the present case would be tantamount to giving countenance to the plot devised by Gaw Pun So and Tiong King to indirectly compel the members of the Rational Tailors Association to abandon their work or to be dismissed from the service.

The resolution appealed from should therefore be affirmed.

Padilla and Tuason JJ., concur.

The resolution of the court of Industrial Relations of Oct. 31, 1949 is reversed and the resolution of May 27, 1949 of the same court is affirmed.




[1] 80 Phil., 842.

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