These three cases arose from the same suit in the Court of First Instance of Manila, Civil Case No. 23848. Ricardo Gutierrez was employed lay the Rural Transit Company, owned and operated by the Bachrach Motor Co., Inc., on August 1, 1949 under a probation appointment of six months at P6 a day.  On. July 13, 1951, Gutierrez was dismissed for "grave insubordination and insult against the management".  He commenced the present suit in the trial court on August 28, 1954 for reinstatement, with backpay, and for moral and exemplary damages, plus attorney's fees.  After trial, the lower court rendered judgment in favor of plaintiff Gutierrez, ordering the defendant company to reinstate him to his old position as assistant mechanic, "effective from the date this decision becomes final, with compensation of P6 a day, and sentencing said defendant to pay said plaintiff P1,000.00 as moral damages and P800 as attorney's fees, and costs."  According to the decision, the P1,000.00 moral damages were for plaintiff's "physical suffering and mental anguish and wounded feelings" due to his supposed unjust dismissal.  From this judgment, plaintiff Gutierrez appealed directly to this Tribunal, raising only questions of law and claiming that the trial court erred in not ordering defendant to pay him back wages from the date of his separation until reinstatement, and in awarding only P1,000.00 as moral damages, and without exemplary damages.  Said appeal is recorded here as G. R. No. L11603. Defendant Bachrach Motor Co., Inc. perfected a similar appeal to us, also raising only questions of law and contending that the trial court erred in not holding that plaintiff was dismissed for a just and valid cause; in holding that defendant company can be compelled, to rein state "plaintiff to his previous employment and in awarding him moral damages and attorney's fees.  This appeal is recorded here as G. R. No. L-11586.

Before expiration of the period for appeal, plaintiff filed a petition for partial execution of the decision, asking that defendant Company be ordered to reinstate him to his former position, with the same remuneration.  Over the objection of the defendant, respondent Judge granted said petition in his order of September 17, 1956, at the same time denying and overruling defendant's motion for reconsideration of the decision,  On September 24, 1956, plaintiff filed another petition, this time, for full execution of the judgment, that is to say, including the payment to him of P1,000.00 as moral damages and P800.00 as attorney's fees as awarded in the decision. This was opposed by defendant Company on September 29, 1956.  On September 28, 1956, defendant Company filed an urgent petition to stay execution and for approval of a supersedeas bond in any amount to be fixed by the trial court.  On September 29, 1956, respondent Judge issued an order granting plaintiff's petition for full execution. of the judgment upon his filing a bond in the amount of P1,800.00.   On October 4,  1956,  defendant Company filed an urgent motion to stay execution and for the approval of a supersedeas bond in such  amount as the court may deem sufficient.   This petition of defendant company was denied by respondent Judge by order of  October 6, 1956.  In the meantime, on October 2,  1956, the present petition for certiorari with preliminary injunction (G.  R. No. L-11238) was filed by defendant Company as petitioner.

On October 10, 1956,  plaintiff-respondent Ricardo Gutierrez filed with the trial court a petition for issuance of  the writ of execution of that portion of the decision regarding the payment of P1,800.00,  offering to file the corresponding bond in the same amount,  By order of October  13, 1956, respondent Judge suspended execution with respect to the civil indemnity awarded  until after the Supreme  Court shall have granted or denied the petition of preliminary injunction in the certiorari case to be filed by  the defendant in the Supreme Court, referring to G. R. No. L-11298.

Because of the intimate relation among these three cases, referring as they do to the same original suit, we have decided to render one single decision.

The facts in the case are not disputed.   They are narrated in  detail in the decision of the trial court, the pertinent portion of which we reproduce below:

"From the evidence it appears that on August 1, 1949, plaintiff Ricardo Gutierrez was employed as temporary mechanic in. the Rural Transit Company, owned and operated by the defendant, at Blumentritt Parada, Rizal Avenue Extension, Manila, with compensation at P6 a day, under a probation appointment for sis months, with the understanding that, if he would show efficient and satisfactory service during that period, he would be appointed as a regular employee. These conditions are clearly recited in the appointment, Exhibit A, which bears the signature of Mr. J. Kaplin, manager of the Rural Transit, and mechanic Ricardo M. Gutierrez. Pursuant to that contract of employment, Exhibit A, plaintiff started working for the defendant on August 1, 1949, until January 1 1951, or a period of 1 year, 5 months and 11 days, without interruption.  On January 11, 1951, manager Kaplin issued Special Order No. 14, marked Exhibit B, giving plaintiff 15 days vacation leave effective January 12, 1951, for tbe reasons set forth therein, which, on account of its importance, is  hereby quoted in full:

"Assistant mechanic Ricardo Gutierrez,  upon fluoroscopic  examination this date  by  the Anti-Tuberculosis Society, has been found to be suffering from some kind  of  lung disease and upon certificate issued by Dr.  Vasquez,  the said diagnosis has been confirmed and  he has to undergo medical  treatment for a period of at least 15 days.

"'In view of the above,  he is hereby given 15 days vacation  effective January 12, 1951, to undergo the necessary medical treatment,  with the understanding that he will  not be allowed  to return to work unless the fluoroscopic examination of his lungs will show that they are absolutely cleared  as required by  the company regulation."

Thereafter, since he felt  himself sufficiently recovered,  he reported for work,  but the defend ant refused to allow him to resume his old job on the ground that the company's physician. has not issued any certification that his lungs had been cleared, for on February 2, 1951, manager Kaplin received from Dr. Antonio Vasquez Clinic, Inc., defendant company's physician, a letter, Exhibit 5, which states that the plaintiff had been X-rayed on that date (February 2, 1951) and that the plate showed that his right lung suffered from minimal fibroid lesions at the level of the second anterior interspace and his left lung disclosed minimal pinhead size fibroids at the level of the second interspace, second rib anteriorly.  On February 6, 1951, the company's physician sent another communication to manager Kaplin, marked Exhibit 6, wherein he stated that plaintiff 'has lung lesions which appeared to be tuberculous in nature,'  although he did not seem to be in need of hospitalization, and thereby recommended that plaintiff be allowed to take rest and treatments until those pulmonary conditions clear up.

"Unable to convince himself that he was suffering from tuberculosis, plaintiff had a X-ray taken of his lungs by the National Chest Center on May 8, 1951, his film Exhibit E, having been identified as bearing No. 145365, and the result shows that there is 'increased density of the hilum shadow' which, according to Dr. Andres Y. Cruz, of the Division of Tuberculosis, Department of Health, who testified in this case in lieu of Dr. Fidel X, Nepomuceno, Chief of the National Chest Center, means that he has no TB, causing them to issue certificate Exhibit F.  As interpreted by the National Chest Center, there is no doubt that plaintiff has had previous infection when he was young but he has no tuberculosis as ordinarily understood, not even an incipient one, and there is, therefore, nothing by which he could prove to be contagious to other people. By reason of his conviction that he was not suffering from that dreaded disease, it appears that Ricardo Gutierrez, who had an insurance policy with the Philippine-American Life Insurance Company, requested that he be X-rayed at the X-ray laboratory of that company on February 1, 1951, as shown by the film, Exhibit C, which was identified by Miss Adelaida Deang, nurse-technician of the Philippine-American Life Insurance Company, who testified in this case; and the authenticity of the X-ray film Exhibit C, as refer ring to plaintiff Ricardo Gutierrez, is further corroborated by the record of the Philippine-American Life Insurance Company marked Exhibit G, wherein his signature appears on the book of the company.  On account of the refusal of the defendant to reinstate him despite the findings of the National Chest Center, plaintiff complained to the Bureau of Labor about his case and what the Bureau of Labor did was to refer the matter to Dr. Godofredo R. Hebron, a TB specialist employed by the Rational Chest Center and at present the Assistant Chief of the TB Section of the Veterans Hospital, who had specialized in the United States from November, 1942, up to November, 1946, and who testified in this Court.  It is hardly necessary to state, at this juncture, that the Court was greatly impressed not only by the qualifications of Dr. Hebron but also by his knowledge of TB.   On March 19, 1951, it appears that he prepared letter, Exhibit 3, addressed to Dr. Antonio G. Hernandez, Chief of the Medical Division, Bureau of Labor, wherein, after making an interpretation of X-ray film Exhibit C taken at the Philippine American Life Insurance Company, he reached the conclusion that both lungs of the plaintiff Ricardo Gutierrez are essentially normal and that there is no evidence of active pulmonary tuberculosis anywhere in the lung field. He further stated that the only finding worth mentioning is the blunting of the left costophronic sinus which is possibly due to a previous pleuresy.  Associating the findings of Dr. Fidel R, Nepomuceno, Medical Officer-Reentgenologist of the Division of Tuberculosis, Department of Health, appearing in Exhibit F with the findings of Dr. Godofredo. R. Hebron, TB specialist of the National Chest Center, marked Exhibit D, the increased density of the hilum  shadow was possibly due to a previous pleurisy.  Having, therefore, secured what might have been termed as clearances from two renowned physicians of the National Chest Center,  plaintiff repaired back to manager Kaplin for reinstatement to his old position as assistant mechanic, but his request was again turned down, and, according to him, he reported for six times for reinstatement 'but his efforts were of no avail.   This allegation is undoubtedly true for the evidence of defend ant marked Exhibit 4,  which is a letter by manager 'Kaplin to the  herein plaintiff dated July 7,  1951, shows that manager Kaplin again reiterated the findings of the company's physician already alluded to elsewhere in this decision, and so  exasperated and chagrined was plaintiff Ricardo  Gutierrez that he wrote on the face of Mr.  Kaplin's letter Exhibit 4, an annotation in his own handwriting to the effect that he does not believe in the company's physician's recommendation. (See Exhibit 4-A written on the face of Exhibit 4).  Sometime on July 13, 1951, apparently unable to control himself by reason of the rebuffs received by him at the hands of defendant's management, plaintiff wrote a letter marked Exhibit 2, which Mr. Kaplin considered very offensive in its language.  For  the purpose of this decision, it might be necessary to quote it:

"'Kaplin:

'I have received your letter dated on July 751 I believed this letter is the one that your are giving when I report to you.  Did you not remember that I threw that letter in your table because I don't want to read, it.

'In this packing letter you write the finding result  of my X-ray result taken on May 9-51 it mean that your Doctor Vasquez is telling again you that I have more sickness or lung disease. Remember Kaplin that I don't believed your best doctor I don't believed him any more because to me they are not a good doctor.

'And tell them that I don't to spend more money for their recommendation that I have lung sickness like what I do before.

(SGD.) RICARDO R. GUTIERREZ

P.S.

'Don't send me any letter from your best doctors.'"

Stung by the language of plaintiff's letter Exhibit 2, Manager Kaplin issued Special Order No. 216 on that same date, July 13, 1251, dismissing Ricardo Gutierrez from the service for grave insubordination and insult against the management.  However, plaintiff did not immediately institute the necessary action except on August 28, 1954, and the present complain was brought to by him as a pauper.

"In the course of his testimony, Dr. Luis Vasquez, defendant company's physician, conceded that the X-ray film does not indicate positiveness or certainty that plaintiff was suffering from TB, but he claimed that he was working on the theory that plaintiff's pulmonary condition." could be tuberculosis, and, consequently, contagious, thereby causing him to recommend that plaintiff be required to take a rest. Having found, he said, shadows which should not be there, he had the impression that there were lung lesions, the exact nature of which he was not prepared to answer, and on the basis of his impression, his office prepared letters Exhibits 5 and 6.  In the mind of this Tribunal, all the misunderstanding could have been avoided if Manager Kaplin had taken, serious efforts to reconcile the report of the government physicians with the report of the company's physician, considering the insistence with which plaintiff had demanded for reinstatement.  In. the company physician's letter of February 6, 1951, marked Exhibit 6, he had not recommended that the plaintiff be laid off but simply suggested that he be allowed to take a rest, until his pulmonary condition cleared up, but, since the plaintiff had been insisting that he had not tuberculosis, he having even gone to the extent of referring the matter to the Bureau of Labor, Manager Kaplin should have taken diligent efforts to ascertain where the divergence lies.  But nothing has been done to determine the rest cause of this disagreement, while the plain tiff, on the other hand, was becoming desperate in his predicament, not knowing what to do, and his need for employment becoming a desperate necessity for survival, * * *"

In our opinion, there are three important questions for determination:  First, whether plaintiff was dismissed from his employment for a valid cause; second, whether without any valid cause, plaintiff could be dismissed. by the defendant; and third, whether assuming that the plaintiff's dismissal was unjustified and illegal, he has filed a suit for reinstatement and for damages within a reasonable time after dismissal.

It will be noticed from the portion of the appealed decision abovequoted that the trial court gave more credit and reliance upon the opinion of the doctors of the chest center than the opinion of Dr. Vasquez, the company's physician; and that the plaintiff was not really suffering from any  lung ailment and consequently, he should be allowed to resume work with defendant company, and that his dismissal inspite of his disrespectful behaviour and tone  of his letter, Exhibit 2, was not wholly justified.

It may be that plaintiff was not really suffering from any  disease or ailment of the  lungs as to incapacitate him for work or to infect his fellow workers. However, defendant company was not bound by the opinion of outside doctors.  It had its own company physician on whose opinion it had a right to rely for its own protection.  Whether said company physician's opinion was right or wrong, from the point of view of the company's interest as an employer, is not immediately important.  There is no evidence, not even a hint, that Dr. Vasquez acted dishonestly, or even with bias and bad faith, in rendering his opinion to the effect that plaintiff was suffering from a lung ailment.  Evidently, his medical and expert opinion based on his analysis and observation was an honest one and there was no reason for the company to doubt him.  Besides, according to paragraph 4 of the plaintiff's complaint that initiated this case in the trial court, he admitted and alleged that "he coughed every now and then and had a slight fever at the time contracted in the course of his employment".  These are symptoms of tuberculosis and those symptoms may have influenced Dr. Vasquez in rendering his medical opinion. Furthermore, according to the very medical examination made by the outside doctors, plaintiff had had previous infection  (tuberculosis) when he was young, and that their finding of the blunting of the left costophronic sinus and the increased density of  hilum shadow was probably due to a previous pleurisy.   In this  connection, it should also be borne in mind that  under the Workmen's Compensation Law,  as interpreted by the  courts,  if  any ailment of an employee is aggravated  by  his work and results in disability,  the employer is liable  for compensations  which may amount to a considerable sum if the disability is important and permanent.  Under  these  considerations, an employer may not well be blamed for  taking extreme precautions and being strict  in  hiring its  laborers and employees or in continuing them in their employment as regards their health and general physical condition.  This, aside from the consideration that if  an employee is suffering from an infectious disease like tuberculosis, and he is allowed to continue working,  he may infect his fellow workers, to the prejudice not only of said, innocent and unsuspecting fellow workers, but  to  the management as well, which eventually would have to  shoulder  the financial responsibility.

He should also remember that on  the basis of. the opinion of the company physician about the  health of the plaintiff, the company did not dismiss but merely asked him to rest and undergo medical treatment and  even  made available to him the facilities of the company's clinic. It was only when the plaintiff, exasperated at the continued refusal of the company to allow him to resume work, committed the alleged act of disrespect and insubordination for which he was dismissed.  Was said behaviour of the plaintiff sufficient ground for dismissal?  Considering the relation between the plaintiff and Mr. Kaplin, the manager of the company at whom the disrespectful acts were directed, we are inclined to believe and we  do find that it was sufficient ground for dismissal.  According to the finding of the trial court, it would appear that while plaintiff was in the office of the manager, Mr. Kaplin, either because he was called or he went there on his own initiative, Kaplin personally delivered to  him the letter, presumably informing him  that the company could not yet allow him to resume work because of the opinion  of the company physician that he was still sick. The plaintiff on receiving the letter, instead of reading it, hurled and threw it on the table  of the manager.  As to his attitude and behaviour on that occasion, we can only imagine.  Then this was followed by his letter, Exhibit  Z, couched in insolent language, and twice addressing the manager as plain "Kaplin" without the "Mr.", and Gutierrez a mere assistant mechanic.  An employer and its high officials, such as the manager, are entitled to more respect than what the plaintiff, displayed at the time.  The Company has a right  to maintain discipline among its employees and expect  a certain degree of decorum and respect from them.

But assuming for a moment  that as a matter of fact, plaintiff was really free  from  any  lung ailment and assuming further that his act of disrespect and insubordination was not sufficient ground  for dismissal, was the company justified in dismissing him without cause? For the reason that the contract of employment of plain tiff was not for any period or  term,  the answer must have to be in the affirmative, as to be demonstrated below.

Counsel for the defendant-appellant has chosen to cite and invoke the opinion rendered.by the writer of the present opinion in the case of  National Labor Union vs. Berg Department Store, G. R. No. L-6953, March 31, 1955. True said opinion was in part  a dissent, but it merited the votes of three members Justices Bengzon, Padilla and A. Reyes, and  was even  concurred in by a member of the majority in that case, Justice Bautista. And the undersigned has reason  to hope, even to believe, that the other members of  the majority in that case, still in the Tribunal, or  some  of them would not disagree to the considerations made in that  minority opinion, this for the reason that the majority opinion in said case was based on another ground, namely,  that the dismissal of the employees was contrary to the  terms of the collective bargaining agreement between the management and the Union,  For this reason,  it is deemed convenient, and to avoid repetition,  to reproduce and make part of this opinion, the said considerations made by the undersigned in that case,  with the assurance that these considerations do not in any manner affect nor conflict with the majority opinion in  said case:

"I realize that there is a  belief,  more or less prevalent,  that  an employer may not dismiss its employee or  laborer  except for cause,  and this belief is entertained not only by the  laymen but also by a portion, of the bench  and bar as well.   This belief,  to me erroneous, is due in part to certain rulings and declarations of some courts  ordering the reinstatement of some dismissed  industrial employees on the ground  that they had been dismissed or suspended without cause,  and also awarding backpay corresponding to the period of suspension or dismissal.  They overlook the fact that such suspensions or dismissals, not infrequently, were made after a dispute had been submitted to the Court  of Industrial Relations for settlement,  or that the employees were suspended or dismissed because of union activities, this, all in violation of express statutory provisions.  It is high time in my opinion that all doubts  on this  point be cleared and that the relation between employer and employee and the rights  and obligations of each be clearly ascertained and  defined.  What ever the courts, including this  Tribunal may, in the  past have said about the  validity or impropriety of dismissals of employees by their employers,the law or rule is and has always been that in the absence of a contract of employment for a specific period, just as an employee in a commercial or industrial establishment may quit at any time, singly or collectively, with or without cause, so the employer can dismiss any employee at any time and without cause.  This right of the employer is commonly referred to as his right to hire and fire his employee in the same way that the employee can stop working by himself or go on strike with his fellow employees.  Authorities in support of this assertion are hardly necessary, but I shall quote some of them:

"'Traditionally, employers have enjoyed' the right to employ and dis charge workers at pleasure.  They have insisted upon the unfettered exercise of that right.  The Supreme Court asserts that the right of employers to employ and discharge workers has not been impaired by the National Labor "Relations Act. (Associated Press vs. National Labor Relations Board, 301 U.S. 103 [19327].)  To the degree, however, that the Federal Act, and  state acts patterned after it, forbid discrimination because of union connections or activities, they restrict the right of employers to hire and discharge at will. The  Federal Act justifies these restrictions  imposed upon employers, because the denial by employers of the right of employees to organize and bargain collectively leads to strikes which obstruct commerce.  The employee, too, possesses the  nominal right to withdraw his services but, like his employer, is restrained from doing  so if it can be shown, that public safety or welfare is jeopardised by his act. A number of state laws have set forth unfair labor  practices prohibited to both employers and employees.  Thus, while both our legislative and  judicial branches of government affirm the  venerated right of employment under free  contracts  the freedom of the part of the employer to employ or to dis charge, and, on the part of the employee., to sever his connections with his employer at will  these governmental agencies have qualified that right in so far as its exercise seems to conflict with public interests.' (Dr. Albion Guilford Taylor on Labor Problems and Labor Law, 2nd Ed., 1950, pp. 399-400)

"'Although the attitude of the court towards social legislation affecting the right of an employer to discharge employees at will has undergone some change in recent years, it may still be said that ordinarily, any act which undertakes to impose upon any employer the obligation to keep in his service one whom he does not desire is unconstitutional.  In the present era of social change and widespread labor legislation, the constitutionality of a law prohibiting the discharge of an employer because of his membership in a labor union has been upheld.' (National Labor Relations Board vs. Jones & L. Steel Corp., 301 U.S. 1, 81 L. ed. 8;3, 108 A.L.R. 1352).   (Francisco Labor Laws, Sec. 54, p.26).

" 'A general contract of hiring is ordinarily deemed a contract terminable at the will of either the employer or the employee.

"' In  the absence of something in the contract of employment to fix a definite term of service, or other contractual provision to  restrict the right of the employer to discharge, or some statutory restriction upon this  right, an employer may lawfully discharge  an employee at what time he pleases and for what cause he chooses, without there by becoming liable to an action against him.' (35 Am.Jut., Sec. 34, pp. 469470.  Anno. 34 A.L.R. 824). (Francisco, Labor Laws, p.673).

"This  right  of  the employer,  in  the  absence of  a  contract  fixing a period  of employment,  to dis miss  its employee has always been  recognized  in this  jurisdiction.  Art.  302 of the Code  of  Commerce provides that  where the  contract  does  not have  a fixed period,  anyone of the parties  (employer and employee) may terminate it upon giving one month advance notice thereof to the other. Under this codal provision the courts,  including the Court of Industrial Relations had been awarding a month's pay or mesada not only to commercial employees as contemplated by the Code of Commerce but even to industrial employees or laborers.  This means that in the absence of a contract fixing the period of employment, the employee may quit at any time and the employer may dismiss him at any time, in either case even without cause, by giving one month notice in advance; in the absence of such notice the employee laid off or dismissed is entitled to one month pay.

"This traditional right of the employer to dismiss his employee without cause is properly recognized, nay, taken for granted  in the new law (Republic Act No. 1052) entitled "AN ACT TO PROVIDE FOR THE MANNER OF TERMINATING EMPLOYMENT WITHOUT A DEFINITE PERIOD IN COMMERCIAL, INDUSTRIAL, OR AGRICULTURAL ESTABLISHMENT OR ENTERPRISE.  "The Congress of the Philippines thru this Act unequivocally acknowledges and recognizes the right of, the employer to dismiss his employee without cause.  Because of the repeal of Art. 302 of the Code of Commerce by the new Civil Code, and because of said repeal, Congress felt that in the absence of a contract. of employment for a fixed period, employees and laborers dismissed without cause, were no longer entitled to the mesada, even in the absence of notice of dismissal or layoff, said Republic Act was passed.

"To dissipate any lingering doubt about the recognition by Republic Act No. 1052, of this right of the employer to dismiss an employee without cause, we may refer to the legislative proceedings in both Houses of Congress when the Act in the form of a bill was discussed.  The bill sponsored by Senator Primicias had the following explanatory note:

"'In repealing the provisions of the Code of Commerce on agency, including Article 302 thereof governing the payment of one month's salary to dismissed employees, the new Civil Code provides In Article 1710 that the "dismissal of laborers shall be subject to the super vision of the government, under special laws."  But, when the said Civil Code took effect, no special law was enacted. to protect the rights of many workers who, since then, have been dismissed from their employment without the benefit of one month's compensation.

" 'To fill the void left by the enforcement of the aforesaid Code, Immediate approval of the attached bill is, therefore strongly recommended.' (Italics supplied)

"The same bill was sponsored in the lower houseby Congressman Tolentino who made the following brief remarks:

" 'Mr. Speaker, this is a bill providing that employees shall be given a previous notice at least one month before the termination of  their employment where there is no  fixed period. ' (Italics supplied)

"The discussion of the bill in the Senate by Senators Primicias and Sumulong is enlightening.  Senator Sumulong made the following remarks;

"'*  *  *  Mr. President, when a con tract or employment contains a definite period, that is when the employment Is for a fixed period of time, it is well established that upon the expiration of the period agreed upon, the employment is terminated without need of notice and without showing any cause.  Now under Article 302 .of the Code 'of Commerce, whose repeal motivated the presentation of the original bill on the subject matter, there is a provision that when the contract for employment does not provide for a definite period of time either party may terminate the employment advance notice, in which  case  the employee would be  entitled  to compensation for that month. That provision in Article 302 of the Code  of Commerce, I understand, is  based on the experience of  ages and establishes a very sound rule that when  the employment  does not  provide for a  definite period of time,  it  is only fair that before it is terminated the  employer should be notified  by the employee  or, vice-versa, the employee  should be  notified  by the employer  before  the employment  is terminated.   That is only reason able  because when there is no definite period agreed  upon  you have  to give the employee  a reasonable time to look  for another employment  before terminating the contract.' (Congressional Record, Senate, Vol. 1,  No.  24, p. 317; under scoring supplied) Senator  Sumulong  continuing, said:

"'I have no  objection that the  employee should be given one month notice  by the employer  to terminate employment  without fixed period,  as provided for in  the  amendment  by substitution, but I  am only suggesting;  is  it not also reasonable that the same  consideration  be extended to the employer  (Congressional Record, Senate, Vol.  1, Ho. 24, p.  319)

"'With  due respect to the  opinion of the Majority Floor  Leader,  I wish to  call the  attention  of the Senate  that  we have before us here a bill in  which the  subject  is how can a contract of employment without  a fixed period be terminated? Now, why  should we  not provide how it  can  be terminated by  the employer?  Why  don't we make  it clear  as to how  it can be terminated by  .the employer?   I have made a little  study of this and  the general  principle is  that  when  a contract of  employment  Is without a fixed  period,  in  the absence of a statute regarding how it can be. terminated by either side, the contract can be terminated at any time without need of showing cause.  That is  the general principle, and that  is the necessity for this bill, so that the employee can be safeguarded and protected, that his employment cannot be terminated without being given one month's notice, I am for that.1 (Id., p. 320; underscoring supplied).

"'*  *  *.  In case of a contract where there is a definite period agreed upon, there is no need of notice because both parties are notified that upon a certain date the employment will terminate.  That. is the reason why no notice is required because the employee before the expiration date can prepare to look for another employment and the employer also, before the arrival of the expiration date, can look for other employees to take the place of those whose employment will be  terminated. But when the contract does not  specify  a definite period of employment,  there  is where the necessity of notice arises, because neither side knows when the employment will terminate.  That is why it  is fair to the employee that before his  services are dispensed with, he should be told one month in advance,  one month  from  today  your  services  wil1 no longer be  required.   You can  look for other places were you can enjoy yourself.."  That is entirely  fair.  That is the  provision of the amendment by  substitution with  which I heartily concur.   But in the  case of  the employer also,  when he does not know  when the employment  will terminate,  I think that he should  also  be notified by the employee: "Mr. Employer,  unfortunately  I  cannot continue until  that  date, so  that  one  month from now you can  look for  others to take my place." That is reasonable We are:protecting labor  and,  at the same time,  we are being reasonable  with management and  capital, and being  fair and reassuring  the industrial and commercial progress of this country.  But when we become one sided, when we become myopic in our philosophy, when we think only of pleasing labor, and I am for pleasing labor, we are in fact committing a disservice, because labor cannot exist unless there is management and capital to cooperate with it.  If we kill the man who has the capital and the management who build all industrial establishments in this country, then I am afraid that we are defeating the very purpose of this bill because in the end labor also will suffer from our injustices to the employer.r (Id., pp. 321322; underscoring supplied).

Senator Primicias had the following to say:

"'*  *  *  This bill is presented in the sense that there are many laborers laid-off now without protection.  When I was yet the humble chairman of the Committee on Labor, I received many com plaints of laborers being laid of with out being paid the proper indemnity.  I know there are many establishments, many factories which are dignified and law abiding and because of the lack of the provisions of law, are not paying their laborers whenever they leave their employment.  But on the other hand, there are also many establishments, especially those controlled by aliens, which dismiss laborers without notice.  This is urgent. We should protect them.   (Congressional Record,,Senate, Vol. I, pp. 319320; underscoring supplied).'

"From all the foregoing, it is quite clear that the bill was passed  in both houses of Congress with the understanding that the employer in the absence of a contract of employment for a certain period and unless prohibited by statutory provision, always had the right to dismiss his employee at any time and without cause and because of this right, and because many laborers and employees had been dismissed, without cause. to give them the protection or benefit, the bill was passed and is now Republic Act No. 1052,

"I repeat that Republic Act No. 1052 never meant or intended to give the employer a new right,  which he never had before,  that of dismissing an employee without cause, because the employer all along and always had that traditional right.  Republic Act 1052 did nothing more than recognize and take that right for granted, at the same time, saving to the employee the right of the "mesada" which he lost by repeal of Art. 302 of the Code of Commerce.

"We may not say as does Mr. Justice Pablo in his opinion concurring in that of the majority that Republic Act No. 1052 is a reactionary legislation because in his opinion said act destroys the conquests of labor, one of which was the stability of his employment, which the Chief Justice calls the security of employment.  As already demonstrated, there has never been such stability or security of employment except when provided for in statutory provision, like those acts I shall later enumerate.  Republic Act 1052 could not have destroyed what had never existed.  All it did was, as already stated, to recognize the instability and insecurity of employment, and to extend partial protection of the laborer against the same.

"The same concurring opinion of Justice Pablo places the supposed security of a laborer or employee in a private establishment on the same level or footing of that .of a Government employee.  He apparently overlooked the fact that not only the law  (Sec. 694, Rev. Adm. Code) but the Constitution itself  (Art. XII, Sec. 4) expressly prohibits the removal or suspension of a civil service employee except for cause provided by law.  A private employee or laborer unfortunately, is not included in that prohibition.

''Of course, this clear right of dismissal or suspension of an employee is subject to the paramount police power of the State, and under said police power, the Legislature in most jurisdictions including ours has from time to time promulgated laws regulating and restricting this right of an employer to dismiss his employee without cause, forbid ding it in cases where the dismissal would affect public interests.  And it is interesting to note that even the right of an employee or laborer to quit.work or to strike is similarly regulated and limited.  I may mention some of our laws on this point that readily come to mind.  Section 19 of Commonwealth Act 103 provides that in every contract of employment or tenancy, it is an implied condition that when any dispute between the employer or landlord and the employee, tenant or laborer has been submitted to the Court of Industrial Revelations for settlement or arbitration or when the President of the Philippines had ordered an investigation in accordance with section 5 of the Act with a view to determining the necessity and fairness of fixing and adopting a minimum wage or share of laborers or tenants, and pending award, or decision by the Court of such dispute or during the pendency of the investigation above referred to, the employee, tenant, or laborer shall not strike or walk out of his employment, when so enjoined by the Court after hearing and when the public interest so requires, and if he has already done so that he shall forthwith return to it and that pending such dispute or investigation the employer or landlord shall refrain from accepting other employees, tenants, or laborers, unless with express authority of the Court; that no employer or landlord shall suspend, lay-off or dismiss any employee, laborer, from the time a labor association, or organization or group of laborers, or tenants or farm to an employer or lord a petition or complaint regarding  any matter  likely  to cause  a  strike  or  lockout or while an  industrial or  agricultural dispute is  pending before the court;  and that if  it is  proved that during the  said period an employee  or  laborer, tenant,  or  farm-laborer has been  suspended  or dismissed  without just cause,  the court may  direct his  reinstatement and the payment of his  salary or wage during the suspension or dismissal.

"Section 21 of the  same law (Com. Act  103) provides that it shall be unlawful  for any employer to discharge or to threaten to  discharge , or in any other  manner discriminate against, any laborer  or  employee because such employer believes that he may testify in any investigation, proceeding or public hearing conducted by  the  Court.

"Commonwealth  Act  213  provides  that my person,  landlord, corporation  or  their  agents who  intimidate  or coerce  any employee or laborer  or  tenant under their  employ with intent of preventing  such employee or laborer or tenant from  joining  any  registered legitimate labor  organization of his  own choosing, or, who dismiss or threaten, to dismiss such employee or laborer or  tenant  from his  employment for having joined, or  for being a  member of any registered legitimate labor organization shall be guilty of a felony.

"Republic  Act  679  provides that' it shall be unlawful for  any  employer to discharge  any woman employed  by him who may  be  pregnant  for the  purpose of  preventing such woman from enjoying the  benefits of  section. 7 of the  Act or to discharge such  woman  while  on  leave  on account  of  her  pregnancy  or confinement;  also that it  shall be  unlawful for  any employer to discharge any woman or  child employed by him for  having  filed a complaint under this Act or to discharge such  woman  and child or any other employee  who  has  given testimony or is about to give testimony under  this Act.

"Republic  Act  602  known as the  Mininum Wage Law in its section 13  provides that after the  effective date  of the Act, it shall be unlawful for  any  person to  discharge or in any manner to discriminate against because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to  the  Act,  or has testified or is about to testify in  any such proceeding, or has served  or is about to serve on a Wage Board.

"Republic Act 875 known as the Magna Charta of Labor, in its section 14,  paragraph(a)5,  provides that it shall be unfair labor practice for an employer  to dismiss, discharge, or otherwise prejudice or discriminate against an employee for  having filed charges or for having given or  being about to give testimony under this Act.

"From all the foregoing,  we may safely conclude that unless regulated or restricted by express statutory provision such as those above enumerated,  an employer  may freely dismiss his employee  or laborer provided that under Republic Act 1052 like Art. 302 of the Code of Commerce, he gives one month notice in advance or gives one month  pay in lieu thereof.  In other words, the  traditional and age old right  of an employee or laborer to quit singly or  collectively at any time and without cause  and the  right of the employer to dismiss his employee or laborer at any time without cause, still exist although qualified and restricted by  statutory provisions."

We now come to the third important question for determination, namely, whether or not plaintiff-appellee has filed the present suit  for reinstatement and for backpay within a reasonable time after  dismissal.  In a long line of decisions, this Tribunal has held that a government official or employee even under  the protection  of  the Constitution  and  the Civil Service Law  that  secure him against dismissal without cause, however meritorious his claim, must file  his petition  for reinstatement within one year from the date of dismissal,  otherwise, it would be barred by  laches.  In the present  case, Gutierrez, was dismissed on  July 13, 1951.  He  filed the present  action for reinstatement only on August 28,  1954, that is to  say, after more than three years.   Although  well find this to be neither the time nor the occasion for applying the doctrine laid down with respect to government officials and t employees illegally and improperly dismissed, nevertheless we find that  the  plaintiff appellee was guilty  of  laches, and that he filed his action too late.

"IV.  LACHES, STALE DEMANDS,  AND  LIMITATIONS

"Section 112.  Definitions  .

"Laches is such delay in enforcing one's rights as works disadvantage to  another.

"Laches in a general sense  is the  neglect, for an unreasonable and unexplained  length of time,under circumstances  permitting  diligence, to do what in  law should  have been done.   More specifically,  it is inexcusable  delay in  asserting a right; an unexcused delay in asserting rights, during  a period of time in  which adverse rights have  been acquired under  circumstances that make  it inequitable  to displace such adverse  rights for the benefit of  those who are bound by the delay; such delay in enforcing one's rights as works disadvantage to another; such neglect to assert a right as, taken in conjunction with lapse of time more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity; an implied waiver arising from knowledge of existing conditions and an acquiescence in them; acquiescence in. the assertion of adverse rights  and undue delay oh complainant's part in asserting his own, to the prejudice of the adverse party." (30 C.J.S. p.5202-1).

The reason for the rule as to laches is clearly explained in the above definition.  When, an employee or laborer is illegally and unjustifiably separated from the service by his employer, in justice to said employer, the petition or suit for reinstatement, including backpay, should be instituted within a reasonable time, this to allow the management to conduct its business and affairs, considering the dismissal and the possibility or probability of the dismissed employee resorting to court action to vindicate his right to continue in. his employment.  'Within a reasonable time, say, one year, the management may keep the post either vacant by hot filling  it or cover it with a temporary employee, giving the latter to under stand that should the management be later ordered to make the reinstatement, the temporary employee should vacate the post.  But this period of uncertainty should not be allowed to continue indefinitely.  We find that the more than three year period which plaintiff-appellee had allowed to elapse, without a valid excuse or explanation after his dismissal, is unreasonable.  Consequently, assuming that he had a valid right to be reinstated, he slept too long on said right and had forfeited the same.

Lastly, we come to the question of the legality and propriety of the order of execution issued by the trial court and made subject of certiorari proceedings in G. R. No. L-11298.  Considering the conclusion we have arrived at, namely, that plaintiff-appellee was legally dismissed, and that even if it were otherwise, he has lost his right to reinstatement, the question of the legality and propriety of the order of execution pending appeal has become moot.  In connection therewith, however, we may say that the very decision, of the trial court orders reinstatement only when its decision shall have become final.  The decision having been appealed, it is clear that it was not yet final.  Consequently, the trial court clearly erred in ordering reinstatement of plaintiff pending appeal, specially when the defendant had  offered a supersedeas bond to stay execution.

In view of the foregoing, the appealed decision, is hereby reversed and the petition for certiorari is denied.

No costs.

Bengzon, Padilla, Reyes, A., Bautista, Angelo, and Labrador, JJ., concur.

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D I S S E N T I N G

REYES, J. B. L.,

As I view the case, the basic question seems to be whether or not the appellee Ricardo Gutierrez (engaged beyond his period of probation) was dismissed for a just and valid cause.

It is well to recall, at this juncture, that the dismissal occurred in 1951. At the time, the new Civil Code had operated t repeal the provisions of the Code of Commerce authorizing unconditional dismissals of employees engaged for an indefinite period, upon 30 days notice or payment of a mesada (one month's salary) (Lara vs. Del Rosario, 50 O.G. 1975). And only the enactment of Republic Acts Nos. 1082 (1954) and 1787 (1957) restored such power to dismiss even without just cause, provided notice or indemnity was given to the employee whose services were terminated.

Did the law between 1950 and 1954 employer the employers to dismiss employees, contracted for an indefinite term, without just cause and without notice or indemnity?  I see no reason to change the stand that I expressed in my concurrence in National Labor Union vs. Berg Department Store, 51 0. G. (No. 4) 1866, that the law did not  so  authorize, and that during that period dismissals had to be for a justifiable cause.

Was any such cause shown in this instance?  The fluoroscopic examinations performed by impartial observers clearly preponderate in favor of  the contention  that Gutierrez was not sick with tuberculosis when he was dismissed, contrary  to the opinion of the company physician. Disease  can therefore be ruled out to justify the dismissal.

I do not deny that the manager had the right to believe his doctor's report.  But we are dealing with a period when the law required the actual existence of a cause, and the condition is not satisfied with mere belief or suspicion.

The second cause, the one averred in the court below, was that Gutierrez was guilty of insubordination and disrespect because of the rough language employed by him in addressing the manager of defendant company, Mr. Kaplin, orally and in writing where the latter insisted in denying him work.  I submit that to qualify disrespect and insubordination we should not lose sight of the psychological condition of the plaintiff Gutierrez. Only by ignoring the distress and fear that oppress a laborer facing loss of work and possible starvation, not only for himself but also for his wife and children, may we demand that at all times plaintiff should have behaved as a gentleman; but such insistence would be entirely unrealistic. Distracted by the spectre of hunger hovering over his spouse and children; resenting the open bias of Mr. Kaplin, who would not even bother to refer to the company doctor the favorable reports of the National Chest Center and of the Department of Health clinicians; and not enjoying the benefits or prolonged education and training that can confer self-restraint, is it any wonder that Gutierrez should have exploded into violent language?  A mechanic can not be expected to act like an engineer or a scientist; nor a butcher to behave  like a surgeon.

Disrespect  and  insubordination presuppose  deliberate  intent to  flaunt authority.  But  the plaintiff's  emotional  stress precluded  deliberate action.  Kaplin's  conduct, on the other  hand,  showed a mind provocatively intent upon dismissing plaintiff  at all costs. A fair and open  mind would have  considered the  possibility of error on the part  of the company's physician, and that he might be willing  to reconsider a  previous opinion in view of  the later findings.  Unless, of course, Mr. Kaplin was thoroughly convinced that his doctor would never look beyond the  company's interest, being a mere enslaved, money grubbing  hack, totally devoid of scientific spirit.  Was not manager Kaplin  legally bound to understand that only fair conduct and thoughtfulness for a fellowman can breed true respect; that it must be  deserved  and can not be  commanded?

As  to the lateness  in filing the action, I think  the  rule for public officials should not  be applied to private  disputes. In the case of the former, the overriding  need for prompt  dis patch of government  business justifies  the requirement that claims for restoration  to office  should be  speedily presented and resolved. But as between private parties,  it is the  statute of limitations that fixes the period during which the  courts will be  willing to entertain the complaints of one  against the other, except under extraordinary circumstances that are not  shown to exist.  Altogether  too often poverty explains the late submission  of lawful claims.   Anyway, this point was  not  debated in the trial court.

Therefore, submit  that  the judgment  below should be  affirmed.

Concepcion and Endencia, JJ., concur.

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^[1] Mesias vs. Jover, et al. G.  R.  Mo.  L8548,  Nov.  22, 1955; Unabia vs. City Mayor of Cebu, et al. 99 Phil., 258;  Florentino Jose,  Jr. vs.  Arsenio  Lacson, G. R. No. 10477, May 17,  1957; Eraudia vs.  Vicente S. del Rosario, 103 Phil., 489.