Hilario Asondido  was an  emergency laborer employed in the Division of Ports and Harbors of the Bureau of Public Works  from May 22, 1950,  to December 31, 1952, and put to work  on various assignments mixing cement, cleaning the pier deck  and operating the jack-hammer, a hand-operated machine run by compressed air, used for boring holes in concrete  pavements.  It appears on record that on December 31, 1952, he coughed blood and a subsequent examination by a doctor of the Philippine-American Life Insurance Co. diagnosed his ailment as  "active  pulmonary tuberculosis affecting the 1st,  2nd and  3rd interspace of left lung", although previous  to that occasion, or on October 12, 1952, a physical examination preparatory to being insured  was conducted by a  physician  of the same Insurance  Company  who  found him negative  of  said disease.  Hilario  Asendido filed  on January  3, 1958, his resignation with  the Bureau of Public  Works, and went to Pila, Laguna, undergoing treatment at  the Laguna Chest & Tuberculosis Demonstration  Center where  his condition was diagnosed as far  advanced tuberculosis on February 2, 1953.

It is not  clear  from the evidence when Asendido filed his claim against the Bureau of Public  Works, but there was such a  claim filed with the Workmen's Compensation Commission as a result of  which hearings were conducted by  Referee  Priscila  Argonza   Medina  of  said  Office. Throughout the proceedings, the Bureau  of Public Works  was represented by an attorney of the  Legal Division of said Bureau.

On February 14,  1955, Referee Argonza Medina rendered decision finding that the claimant Hilario Asendido might have had incipient tuberculosis at the time he first entered employment,  but in such stage yet as to escape  detection even by a physician.  It went on further to say  that  this ailment must have  been aggravated by  the nature of his work, that is, the continuous operation of the jackhammer in the month of December, 1952, resulting in the appearance of blood  in his  coughings, and declared that  such was compensable under section 2 of Act  3428, as amended. Hence,  respondent  Bureau of  Public  Works was  ordered:

1.  To  pay the claimant Hilario Asendido,  thru this Commission the sum  of One Thousand Six Hundred Twelve Pesos and 80/100 (P1,612.80) in lump sum. with no discount, as compensation corresponding  to the period "from January 1, 1953, up to February 28, 1955, and Fourteen Pesos and  Forty Centavos  (P14.40) weekly thereafter until the   pulmonary tuberculosis  of  the  claimant  is declared  arrested and  he can normally resume his  former  work or until  the maximum  compensation of P4,000.) is fully paid;
   
   
2. To  reimburse the claimant of the amount of One Hundred Ninety Five Pesos and 10/000 (195.10) as medical expenses, and to pay for  the medical and hospital  expenses to be incurred in the future by the claimant as a result of his illness; and
   
   
3. To pay into the Workmen's Compensation Fund the amount of P17.00 as costs and the amount of P1.00 for  every P100.00 to be paid as  compensation, pursuant  to  section  P5 of Act 3428, as amended".

A copy of  said decision  was received  by the Bureau of Public Works on February 26, 1955,  and  was  referred to the Director of Public Works on March 17, 1955,  who forwarded the  same to  the Solicitor  General for appeal or for such action  as may be deemed appropriate on  the matter.  Pursuant thereto, the Solicitor  General filed with the Workmen's Compensation Commission on March  24, 1955, a  petition for relief from  the decision of Referee Priscila  Argonza Medina, stating that under section 1661 of the Revised Administrative Code, the Solicitor General is  the  counsel for the Republic  of  the  Philippines; that as the  judgment to be enforced will cause a financial liability of the Government, the proper party in this case should  have been the Republic of the Philippines,  (section 53, Republic Act No.  772); that as  such  party to this suit, the Government  should have been notified through the Solicitor General's  Office; that although  the Bureau of Public  Works was represented during the  hearings, said counsel had no authority under the law to represent the Director before any board, commission or court requiring the services  of  a lawyer;  that  is the Republic of  the Philippines, the  real party in  interest,  was not notified, it  was  deprived  of its day in court,  and prayed that the decision of the referee be set aside and a new trial  be held so as to give the  proper party the opportunity to be  heard  and  be duly represented  by its legal counsel, and  for such  other  relief  as may  be deemed proper and equitable.

It seems  that this petition was denied  and the Solicitor General filed  with  the  same Commission  a petition  to review the decision of Referee Medina.  On  May 31, 1955, an order was issued by said Referee  denying the petition for review on  the ground that the same was not sufficient in  form and  substance  for failure to  comply with  the requirement of section  3  of Rule  38 regarding the attachment of an affidavit of merit to the petition, at the same time maintaining that  the Commission acquired jurisdiction over the person of the respondent and that said  party was given its day in court, and in accordance with Section 49  of Republic Act 773, the record of the case was elevated to  the Workmen's Compensation Commissioner for review. As the  Commissioner issued on October 12, 1955, an  order affirming the judgment rendered  by the  Referee in  favor of  claimant  Hilario Asendido, the Solicitor General representing the  Republic of the Philippines,  brought the matter  to this  Court and  in this instance  assails the  order of  the respondent Workmen's Compensation  Commissioner affirming the order of Referee Medina as devoid of basis in law and in fact.   The order appealed from was based on the premise that the petition for review filed by therein petitioner, the  Republic of the  Philippines,  was defective and  it is now the contention of the Solicitor General that affidavits of merits are not necessary where the Court ov body has no jurisdiction over the person of a party or of the subject matter.  Herein petitioner further asserts that the  claim being one involving financial liability of  the Government, the proper party should  have been the Republic of the  Philippines and as the latter was not notified, the proceedings  held before Referee Medina  were null and void in so far  as the Republic  of the Philippines is  concerned.   It is,  therefore,  prayed  that  the   decision  and order of respondent Workmen's  Compensation Commissioner be declared erroneous and  the case be set for new trial.

From the foregoing recital of facts, We can glean  that the Solicitor General, in representation  of   the Republic of the Philippines, questions the jurisdiction of the Workmen's Compensation  Commission  to  adjudge the Bureau of Public Works liable and to require it to  pay the claim of the  laborer who had rendered  services in said Bureau. It is the petitioner's consistent stand that the case, which necessarily  involves a liability  to the national  funds, is an action  against the Government and  the proper party should have been the Republic of the  Philippines.  The main issue raised by this  appeal is whether or not  the Republic  of the Philippines is an indispensable party in the  case  at bar  and,  consequently,  whether the order appealed  from  was issued in excess  of  jurisdiction.

The  Bureau  of Public  Works is an  agency  of  the Executive branch, the appropriation  for its  operation and maintenance being provided for by the National Government.  Although the various functions of said Bureau are executed under  the direction of the Director, as contended by counsel for respondent  claimant, it is obvious that said Director is subject to the control of the Department Head, who in turn falls under the supervision and control of the President.  In contemplation of the Workmen's Compensation Act, this Bureau cannot be considered as the employer of  those  working thereunder,  for  it is merely a  part of the machinery  of the Government, the services  or works rendered to said Office being  designed for the  good  and welfare of  the  public the said  Office  not being in business but engaged in the performance of  functions which .are the proper concern of the Government.

Moreover, in a recent ruling this Court  held that cases involving  financial liability that may be  proved  against the Government are actions against the Government  (See Araneta et al. vs. Gatmaitan et al., supra, p.  328).. which strengthens petitioner's contention that the action at  bar should have properly been  brought  against the Republic of  the Philippines.   And  that the law intended the National Government to be liable for  compensation  arising under the  Workmen's  Compensation  Act  is  clearly embodied in  sections 3  and 53 of Republic Act  722,  amending Act  No. 3428,  which   read as  follows:

Sec.  3. APPLICABLE TO GOVERNMENT. This Act shall also be applicable to  mounted messengers in the service  of the  National Government and all its political subdivisions and to  the employees and laborers  employed in public works and in the industrial concerns of the Government and to all other persons performing tnanual labor in the  service of the National Government and its political subdivisions and  instrumentalities ;

*        *           *               *               *               *
Sec.  53. DEPOSITS OF GOVERNMENT ENTITIES TO GUARANTEE PAYMENT  OF  COMPENSATION. The  National, provincial, and municipal government, as well as government-owned or controlled  corporations employing  laborers  and  employees comprised within  the provisions of this  Act, shall deposit with the office of the Workmen's Compensation Commissioner an amount to  be determined by said Commissioner to guarantied payment of compensation.  The said deposits shall be received by the Commissioner  and disbursed, thru the  authority of the  Commissioner or his  deputy,  as  compensation  payments to injured laborers of the government entities making the contribution or  the  laborers'  dependents in cases of death whenever  the  said laborers or their  dependents are entitled  to compensation under the provisions of this Act.

We  already  found  occasion  to  pass  upon  this  matter squarely in  another case  involving practically  the same set of facts.   In G. R.  No. L-9252,  Republic of the  Philippines vs. Hernando et  al.,^*  promulgated  July  31,  1956, this Court, speaking through Mr. Justice Bautists  Angelo, made "the following pronouncement:

"While  it is true  that  the  Director  of Public  Works  or  the Commissioner of Public Highways can be sued on matters covering their  official functions or  activities,  the situation varies when it refers to a claim  for  death benefit or compensation, for, as already adverted to  the proper party in interest is the national government because the money to be applied to the payment of the compensation belongs  to it under section  53 of the Workmen's Compensation  Act. This  is the situation  obtaining in  the  present case.   And as  it appeal's that the national government was not given its day in court, the decision of the referee cannot  stand, since  it  was  rendered in excess of jurisdiction.

*        *           *               *               *               *

On this  score alone,  the present appeal by the Government is  clearly meritorious,  but we desire to pass upon the  question  invoked  by  respondents,   that  the petition for  relief  filed  by the  Solicitor General  to  review  the decision  of  Referee Medina was defective  for  failure to comply  with the requirements of section 3 of  Rule  38 of the Rules of  Court regarding  submission of  an affidavit of  merit.  Said section  prescribes the  following:

Sec. 3.  WHEN  PETITION  FILED; CONTENTS   AND VERIFICATION. A  petition provided for in  either  of  the  preceding sections of  this rule must be verified filed within sixty  days  after the petitioner learns of the judgment, order, or other proceedings to  be set aside, and not more than six months  after  such judgment  or order  was entered, or such proceeding  was taken; and must be accompanied with, affidavits showing the  fraud, accident, mistake,  or excusable negligence relied  upon, and the facts constituting the  petitioner's good and substantial  cause of action  or  defense,  as the case may be,  which he may prove if his  petition be granted.

The requirement  of  this section  is  similar to that of section 2 of Rule 37 concerning motions for  new  trial, and although the rulings of  this  Court advocate strict compliance  "with the same, the view setting exceptions to the general rule was laid down in the cases of Coombs vs. Santos, 24 Phil. 451; McGrath vs. Del Rosario, 49 Phil. 330;  and Gonzales  vs. Francisco, 49 Phil.  747,  cited in I Moran's Comments on the Rules of Court, 1952 ed. p. 780. It was thus held  that  failure  to  accompany a motion to set aside judgment with an affidavit  of merit is irreversible error  "except where there was no jurisdiction over the defendant or of the subject matter  of the action, where a judgment was taken by  default  before  defendant's time to answer had expired, where  it was  entered by mistake, or was obtained by  fraud, and other similar case".  This seems to be a sound rule on the matter,  for in a petition directly assailing the jurisdiction of the court, an affidavit of  merit  has  no  practical  value.   An affidavit of merit is one setting forth  that  the defendant has  a meritorious defense  (substantial and not  technical)  and  stating the facts constituting  the same (Black's Law Dictionary, 4th ed.,  p. 80).  An attack on the jurisdiction of the court is given such primary recognition  in our  jurisprudence that  this defense can properly  be raised  for the first time  even  on  appeal.  Certainly, an  affidavit  of  merit which essentially deals with facts constituting petitioner's defense and/or  basis of  such  defense has  no place in  a pleading that advances an  argument that goes down to the very root  of the proceedings.

Wherefore,  the  decision rendered in W.C.C. Case  No. 2594 by Referee Priscila Argonza Medina dated February 14,  1955, and all other orders issued by her  in connection therewith, as well as the order  of  the  respondent Com- missioner  Cesareo  de Leon of October 12, 1955,  affirming the judgment rendered by said Referee, are  set aside and respondent Commissioner  is hereby ordered to set the case for new trial after  giving notice  to all parties concerned, so as to give herein petitioner, the Republic of the  Philippines, its day in  court.   Without pronouncement  as  to  costs.   It  is  so ordered.

Paras, C.  J., Bengzon, Padilla,  Montemayor, Reyes, A., Bautista Angelo, Labrador,  Conception,  Reyes, J. B. L., and Endencia, JJ., concur.

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^* 90 Phil., 683.