IV.- Repeatedly, this Chamber has considered that the object of the litis is delimited by the complaint and its answer, that is, the objective and subjective limits are fixed within which the debate shall develop and the ruling shall be produced. In such a way that the parties are prevented from altering the bases upon which they have brought the litigation, in pursuit of the fundamental guarantee of due process and procedural equilibrium; otherwise, the opposing party would be prevented from arguing and providing exculpatory evidence, remaining in a situation of disadvantage and defenselessness, in breach of the right of defense in trial (In this regard, see the rulings of this Chamber, No. 423, of 9:50 a.m. of August 1, 2001; No. 54, of 10:10 a.m. of February 13; No. 103, of 2:45 p.m. of March 13; and No. 292, of 10:10 a.m. of June 14, 2002). The plaintiff seeks for this Chamber to declare the annulment of the dismissal, which he bases on: 1st.- Violation of Article 39 of the Organic Law of the National Banking System, as he indicates that by virtue of that norm his removal as Assistant Manager could only be granted with the vote of no less than five members of the Board of Directors; and that this did not occur, as it was the Intervenor of the Banco Anglo Costarricense who decreed his dismissal, individually, not collegially, that is, the other members of the Intervention Board, or those of the Board of Directors of the Central Bank, or those of the Liquidation Board did not concur. 2nd.- In omission of application of the Agreement of Parties and Arbitration, as he indicates that by virtue of that agreement, the Labor Relations Board necessarily had to rule on the nature of the dismissal and the existing evidence, since that agreement, as well as said Board, continued to govern. However, upon reviewing the case file, it is observed that these issues and reproaches were not raised at the proper time, that is, in the complaint - neither in the facts nor in the procedural claim -, much less in his appeal, requiring a declaration of that kind, all of which makes the grievance inadmissible.
V.- In accordance with the provisions of Article 502 of the Labor Code and as established by the Constitutional Chamber in its rulings Nos. 5,798, of 4:21 p.m., of August 11, 1998; and, 1,306, of 4:27 p.m., of February 23, 1999, the Labor Tribunal may confirm, amend, or revoke what was decided by the first instance judge; but such power is subject to the specific grievances that the disagreeing parties expressly raise before it. Now then, as established in Article 500 of the same code, the appeal must be filed within the third day, counted from the last notification. In subsection c), of the following article, it is indicated that once the parties are notified, the case file shall not be sent to the Superior Court, even if they have appealed, until one day after the indicated three-day period has elapsed, so that they may express, before the same first instance body, the express and specific reasons for their disagreement. (In this regard, see the resolutions of this Chamber, Nos. 367, of 4:10 p.m., of October 7; 386, of 2:20 p.m., of December 10, both of 1999; 55, of 10:40 a.m., of January 12, 2000; 167, of 9:00 a.m., of March 9; and, 454, of 10:00 a.m., of August 10, both of the year 2001).
VI.- Having analyzed the appeal, regarding what was actually raised, timely, by the plaintiff's representative, the grounds for grievance were these: 1.- In the first point, he argues, in summary, that the A Quo's ruling reached the conclusion that the plaintiff committed serious faults in granting overdrafts to various clients of the Bank, since he should have been more prudent with public interests, because he managed public funds. Likewise, that said ruling details a series of cases where, according to the plaintiff's actions, it reflects the carelessness he incurred in the management of resources, by granting overdrafts in those conditions in a liberal manner. Therefore, it estimated that his conduct justified his dismissal, due to the negligence with which he acted and cites a ruling that supports that the public official is obligated to safeguard state interests. 2.- In the second point, he states that he respects the basis of the ruling but does not share it. He recalls that in 1994, the Board of Directors and the General Management of that Institution established a famous program called “Agile State Banking” with the aim of facilitating and financing credits and collaborating with the development of various national companies. He explains that the plaintiff served simply as an Assistant Manager and, like other lower-ranking employees, had to follow guidelines and orders from the Board of Directors and the General Management, which were issued at that moment for the administration and handling of that type of credit, called “overdraft.” That if the plaintiff had opposed the cited program, the overdrafts, and approving them - because public funds were put at risk -, and assuming that said program had been successful, he would rather have been terminated, immediately, without employer liability, for not having followed the successful policies and guidelines issued, since the decision in this regard had already been made by those bodies. That is, if the guidelines are followed he is dismissed and if not, also. 3.- In the third point, he reproaches that it was not taken into account that when the “Agile Banking” program began, the plaintiff had already provided uninterrupted services to the Institution for over thirty years, without ever having been sanctioned for any fault, and that he did not avail himself of his retirement, with the purpose of collaborating in said Program. That if he had retired, he would not have had any problems, as a consequence of the Bank's debacle. 4.- In the fourth point, he notes: That it is public knowledge that all the directors and the General Manager were criminally convicted for the improper administration of the entity. That the debacle of that Bank did not originate from the overdrafts but from the acquisition of Venezuelan foreign debt bonds that destabilized it financially, without the plaintiff having any participation in the latter. And that added to this is the ill-considered closure based on political motives or reprisals that economically harmed all Costa Ricans. 5.- In the fifth point, he states: that he mentions all the previous things with the aim that the context in which the events occurred be better appreciated and not by analyzing, point by point, a few overdrafts that, for one reason or another, were left unpaid or were not given under the normal conditions in which [Nombre2] used to do things. That his client managed the overdraft branch for amounts of millions upon millions of colones and never before were there problems. He claims that his client has turned out to be a scapegoat and it is unjust that for his spirit of service and for having stayed working during the Bank's financial collapse, his labor rights have not been paid and he has had to face a criminal process. 6.- In the sixth point, he claims that the ruling was based on the problems of a few overdrafts and reproaches that it was concluded that these suffer from deficiencies and irregularities. He objects that they did not take into account the other unproven charges attributed to the plaintiff, which were invoked to dismiss him without any reason. 7.- In the seventh point, he says that he will later explain, in a new brief, regarding the subject of the overdrafts that are considered poorly granted. 8.- In the eighth point, he indicates that, as can be seen from all the foregoing, the plaintiff acted within the framework of his legal attributions and according to the guidelines of the financial policy of the Banco Anglo Costarricense, therefore his dismissal is unjustified (pages 137 to 139). Subsequently, he submitted, as evidence for better provision, the acquitting criminal judgment, limiting himself to pointing out, regarding it, that: “2.- As is very well explained in that judgment, my client lacked all responsibility in the criminal acts attributed to him, and which were classified as ten crimes of embezzlement (peculado), at the time, by the Office of the Attorney General of the Republic.” (page 215). The Ad Quem noted that it was only required to resolve those reproaches visible on pages 137 to 139, given that the expansion of arguments contained in the brief on pages 145 to 147 was untimely, which is correct because, as explained in the previous Considering, it was not obligated to rule on these other, new arguments that were formulated to it, already outside the deadline. VII.- Having analyzed the cassation appeal, the subsisting grounds for grievance, by which he alleges misapplication of the existing regulations, leading the tribunal to improperly apply labor law, are the following: He alleges a substantive error for having ignored the regulations and Board agreements, then in force and mandatory, which, he says, regulated the granting, approval, extensions, and cancellations of overdrafts. Likewise, that he did not submit the acquitting criminal judgment to question the independence of jurisdictions, as it seems the Ad Quem misunderstands it, but rather for a better understanding of the problems that occurred at the Bank, since said judgment explains and clarifies a series of facts, among others, the existence of regulations, which, he says, justify and explain the plaintiff's actions. He then divides the ruling into three sections. Regarding the first section: A) ON JOINT SIGNATURE (MANCOMUNACIÓN): he indicates, in summary, that it was a common and regulated practice among high-ranking officials, to share responsibilities, to raise the limit and thus be able to approve overdrafts. That it is contradictory that in the A Quo's ruling, confirmed by the Ad Quem, it is said, on one hand, that joint signature was possible, and that this is reproached, on the other hand, as a labor irregularity. That in the criminal judgment it is said that this was permitted; and that [Nombre3] and [Nombre4] said so in the present process. B) ON THE EXTENSIONS (PRÓRROGAS): he indicates, in summary, that the judges also sanction him for granting extensions, despite the fact that they were authorized and regulated and that he limited himself to their application. To this end, he summarizes what was declared, in part, by witnesses [Nombre3] and [Nombre4]; as well as what was said on the matter in the criminal judgment; and he finally adds that, according to what was explained about joint signature, nothing prevented the extensions, if they indeed occurred. C) REGARDING THE GUARANTEES: he indicates, in summary, that nothing can be reproached of him in this regard since these were verbal overdrafts, which according to the cited Manual were authorized without the need to sign a document, and according to witness [Nombre3] only a form was filled out; and that both him and witness [Nombre4] said that he was among the officials authorized to grant them. Furthermore, he partially transcribes what was considered in this regard in the criminal judgment. D) REGARDING THE CASE OF [Nombre5] : he claims that he was not accused, criminally, for this case, which he attributes to the fact that his conduct was deemed not illegal; and therefore he asks that it be assessed whether his conduct represents any irregularity from the labor point of view. That this company's case was handled interbank-wise, in order to help it overcome its financial crisis and thus avoid other types of problems. That being a sixth-degree mortgage certificate, it is less of a guarantee than a check, even one without funds, due to the penal responsibility of its issuer. That he did not know it was unfunded, since he only received it as a substitution of guarantee, under his discretion, due to his high position, to help the company and incidentally favor the interests of the Bank he was responsible for, which is normal, so he acted in accordance with the existing regulations and banking practices, which are a source of law. That as the witness for the prosecution himself said, the check was for an amount of ¢30,000,000, higher than the sixth-degree mortgage certificate for ¢25,000,000. And that despite this witness saying that the check was consulted and had no funds, there is a doubt, which must favor him, since that document was not brought into the case file, in addition to the fact that the witness said that it was his colleague who handled the case, and she did not declare. E) He points out that it is erroneous that it was said that the constant extensions prevented the overdrafts from acquiring an age of 180 days, and therefore prevented the collection of interest since they were charged upon each extension, as they were accumulated to the principal, as well as other expenses and commissions; or, that this could result, from an accounting and financial point of view, in a fictitious profit, in case of non-compliance, as stated by the witness and auditor Mr. Quirós, since in that case, the interest, as well as the capital, could be executed through collection actions. He indicates that according to the criminal judgment, it was the Board of Directors and not him who was in charge of approving credit policies, and therefore, as a mere executor, he bears no responsibility. F) FINAL CLARIFICATION: he points out that overdrafts were a reality, and that is why some are known and will continue to be known in the Courts. And furthermore, that when he said that some overdrafts were not given under the normal conditions in which they used to be given, it was not in the sense of irregular or illegal, but according to what was explained in the criminal judgment, that is, they changed in their modalities over time, as “a hook to pull in clients,” as witness [Nombre4] said, as the regulatory provisions changed to adapt them to the policies of the Board of Directors. Regarding the second part: he indicates that verbal overdrafts were authorized and regulated. That he acted in accordance with the law and existing policies. That there was always a guarantee because, even if documentation was not signed, the overdraft itself constituted a guarantee, that is, an executory title, for purposes of judicial collection. He adds that joint signature and extensions were permitted, hence he did not circumvent the control and oversight of the Board of Directors or Audit, since what he did was apply the existing regulations, as a mere assistant credit manager. Regarding the third part: he indicates that, as analyzed, the plaintiff, in his role, complied with all existing regulatory provisions and therefore the dismissal was unjust.
\n\n**VIII.-** It has been repeatedly established that the grievances formulated before this Chamber, in order to be procedurally and legally admissible, must have necessarily been raised before the adjudicators of the preceding instances; because, in accordance with Articles 598 and 608 of the Civil Procedure Code, applicable by virtue of numeral 452 of the Labor Code, only those matters that have been timely proposed and debated by the parties may be the subject of the appeal; and, furthermore, they must inevitably have been invoked, also previously, before the jurisdictional body of the second instance; when the judgment issued by the latter is—as in the present case—merely confirmatory of the ruling issued by the lower court (A-quo). Consequently, claims not formulated before the appellate court (Ad-quem), by virtue of the principle of procedural preclusion, cannot validly be raised in this third instance either; the competence of the Chamber thus being legally limited. (On this topic, see, among others, judgments No. 536, of 9:40 a.m.; 537, of 9:50 a.m.; and 540 of 10:20 a.m., all of September 7 of last year, 2001).\n\nUpon a comparative analysis of the claims raised, it becomes immediately apparent that the detailed reasons now set forth before this Chamber, which in its opinion merit the admissibility of the appeal, are surprising, in their vast majority, for being novel, in relation to what was reasoned in its appeal; that is, in relation to the rather general grounds upon which it based its disagreement and which, in its judgment, gave merit for the Appellate Court (Ad Quem) to amend the judgment in whole or in part. It is in evidence that in point seven of its appeal, it indicated that it would later explain, in a new brief, regarding the matter of the overdrafts (sobregiros) that were deemed improperly granted. Thus, by virtue of this procedural principle of preclusion, the Chamber can only analyze and resolve some of the grievances now asserted. Particularly, insofar as they relate not to a question of fact, but of law, that is, in relation to its general argument that the plaintiff acted within the framework of his legal attributions.\n\n**IX.-** Thus, we have that in its brief visible on folio 215, by which it offered the exonerating criminal judgment, the plaintiff limited itself to stating that: “2.- As is very well explained in that judgment, my client lacked any responsibility in the criminal acts attributed to him, and which were classified as ten crimes of embezzlement (peculado), at the time, by the Office of the Attorney General of the Republic (Fiscalía General de la República).” As can be seen, it did not indicate, on that occasion, as it now explains, that it did so with the purpose of providing a better understanding of the problems that occurred in the Bank, or because said judgment clarified a series of facts, among them, the existence of regulations, for the purposes of whatever it could serve and contribute to the labor jurisdiction. Consequently, the objections that the contribution of that judgment was misinterpreted by the Appellate Court (Ad Quem), and that therefore it was not given the ideal treatment as a tool for a better perspective of the case, are inadmissible due to preclusion, since these are arguments that did not form part, as stated, of the brief offering that evidence. Given that the Appellate Court (Ad Quem) evidently could not rule on them, as they were not presented to it. For which reason it is prohibited for the Chamber to hear and resolve them, since doing so would constitute acting as a court of appeal and not, as a petitioned third instance, which is illegal, as it is to the detriment of the right to defense and due process, in this case, of the defendant.\n\nIn any case, even admitting, as the appellant indicates, that said judgment was only appealed by the Attorney General’s Office (Procuraduría) regarding the patrimonial aspects, it is evident that it lacks finality, at least, regarding the points concerning civil liability. Consequently, we can only endorse what was considered by the Appellate Court (Ad Quem) in this regard since the circumstance of having been criminally acquitted of all punishment and liability, regarding the crime of embezzlement (peculado), in the modality of a continuing crime to the detriment of the duties of public function, does not neutralize the faults attributed. Given that there is independence between the criminal and the labor avenues; in the criminal jurisdiction it was resolved in that manner in application of the universal principle of in dubio pro reo in some of the cases charged and for certainty in others, particularly because it was assessed that the element of intent (doloso) in the conduct was not present, which is not necessary in labor matters to consider that manner of proceeding negligent, and which gave rise to them being considered serious faults. Indeed, said criminal acquittal does not weaken the propriety of the fault, since in one avenue and the other, the assessment made of the evidence is different. Nor does it erase the irregularities committed by the non-compliance with existing regulatory provisions, which as a public servant he had to comply with in accordance with the principle of legality. Indeed, as will be seen, there is no doubt that the faults committed are sanctionable from a labor standpoint, since they involve actions that are, moreover, incompatible with the regulations then existing.\n\n**X.-** The thesis being attempted, that the imputed faults are not sanctionable from a labor standpoint, but rather justified actions in light of the regulations then existing, requires for its admission the existence of a legal norm of coverage that would have authorized him. Something which, as will be seen, is not the case.\n\n**A.-** The objections under letter a), regarding JOINT OBLIGATION (MANCOMUNACIÓN), are not admissible. Despite the fact that the arguments on this point are novel, given that they were not asserted before the Appellate Court (Ad Quem), thus constituting a precluded matter, even so, it is not observed that an express norm existed that authorized him to grant overdrafts (sobregiros) jointly or in common (mancomunada), at least for the date of the facts. From the cited criminal judgment, it is deduced, rather, that it was not until May 1994 (Session 42-5-94) that the Board of Directors finally authorized joint obligation (mancomunación). From which it follows, without much interpretive effort, that if that were so, it was because before that date it was not normatively authorized. Therefore, it can be concluded, as the Appellate Court (Ad Quem) did, that the plaintiff participated in a practice in this regard, which is reprehensible since, as is known, “...No one can claim ignorance of the law, except in cases where the law itself authorizes it. The waiver of laws in general, nor the special waiver of those of public interest, has no efficacy. Acts and agreements contrary to prohibitive laws shall be null, if those same laws do not provide otherwise. The law is neither abrogated nor derogated, except by a subsequent one; against its observance, disuse, custom **nor contrary practice** may be alleged. ...” (Article 129 of the Political Constitution). From which it is deduced that in a written system, and with greater reason in a state Bank governed by Administrative Law, at least regarding internal processing and approval acts related to the granting of credits, it is logical, by application of the principles of legality and reserve of law, that custom or practice contra legem—which intends to modify or repeal it—is not admitted, but only secundum legem or praeter legem. Indeed, “In Administrative Law, the character of a source of law has been denied to custom for the following reasons: a) It is affirmed that, in application of the principle of legality, powers are attributed to the Administration by a written norm. Certainly, powers of authority (potestades de imperio) are reserved to law (Articles 12, paragraph 2—a contrario sensu—, 59, paragraph 1, and 103, paragraph 1—a contrario sensu— LGAP) and, even Article 59, paragraph 2, LGAP establishes that ‘The internal distribution of competencies, as well as the creation of services without powers of authority, may be done by autonomous regulation, but the same shall be subordinate to any future law on the matter.’ Indeed, the LGAP establishes that the regulation of external and internal powers must be carried out by written norm. Another important limit of custom as a source of law is that contained in Article 85, paragraph 3, LGAP, by establishing that transfers of competence—through delegation, avocation, etc.—cannot be made through practice, use, or custom. b) The administered party cannot impose ties or limits on the Public Administration, so the two parties of the administrative legal relationship do not participate in the formation of the custom, but only one of them—the public administration. The foregoing is true, provided that administrative custom emanates from the practices of the Public Administration as a form of self-limitation of its discretion for the benefit of the administered party. Custom, in order to function as a source of Administrative Law, must be a reason for subjections or limits for the Public Administration to the benefit of the administered party. Note, in this regard, that Article 8 LGAP establishes that the administrative legal order shall be understood as integrated by unwritten norms ‘...necessary to guarantee a balance between the efficiency of the Administration and the dignity, freedom, and other fundamental rights of the individual.’ Administrative practices that give rise to customs usually refer to organization and administrative procedure, for which reason they usually have an internal or indirectly external repercussion.” (Ernesto Jinesta Lobo. Treatise on Administrative Law. Volume I. General Part. First Edition 2002. DIKE Legal Library, pp. 189 and 190). From which it is also deduced that administrative practice does not proceed contra legem. And in the former Banco Anglo, there existed the “REGULATIONS OF FACULTIES FOR THE GRANTING OF CREDITS (REGLAMENTO DE LAS FACULTADES PARA LA CONCESIÓN DE CRÉDITOS)”, whose last modification was made by Article 6, Session No. 62/07/92, of August 3, 1992 (see package No. 2 of attached documents), which clearly defined the competence by amount—₡15,000,000 in the case of the plaintiff, as deputy manager—which could not be exceeded, as it established that said faculties were inherent to their positions and not personal, and that the limits set for each official were individual and independent. There also existed the “PROCEDURES MANUAL FOR THE PROCESSING AND COLLECTION OF OVERDRAFTS IN CURRENT ACCOUNTS (MANUAL DE PROCEDIMIENTOS PARA TRÁMITE Y COBRO DE SOBREGIROS EN CUENTA CORRIENTE)”, from January 1988, 1992 (see package No. 2 of attached documents), which established, in what is of interest, in section II, point No. 5, that if the amount of the obligation exceeded his faculties, he had to submit it for the knowledge of the official with greater faculties or to the board of directors if necessary. As some joint overdrafts (sobregiros mancomunados) were prior to May 1994, we can only conclude that they were granted by the plaintiff irregularly, that is, contra legem. The testimonies that the appellant cites in its support are not admissible, for the same reason, given that, as a principle, witnesses do not prove against documents. Therefore, in this case, what was said by witness [Nombre4] is inadmissible, since it evidently refers to said practice and at most to the subsequent authorization by the board of directors. The same can be stated regarding what was said in this regard by witness [Nombre3] (folios 40-42). On this matter, the witness—former auditor—[Nombre6] was clear in declaring: “In relation to the joint exercise of faculties to approve or extend overdrafts (sobregiros), which I came to detect, it was not a custom in Banco Anglo.- It is clear that the Overdraft Manual regarding that if the amount of a credit exceeds the faculties of an official, they must go to an official with greater faculty and even to the Board of Directors, in other words, the faculties are individual and the action of collegiate bodies would be meaningless given the possibility of joining together, being able to substitute through this means the Board of Directors itself if they so proposed. -The faculties of the officials starting in ninety-two were thirty million colones for the General Manager, fifteen million for the Deputy Credit Manager, the plaintiff here, and ten million for the rest of the deputy managers.- While it is true that in eighty-seven the Board of Directors at that time took an agreement that allowed joint action, it did so exhaustively and indicated a maximum amount of eight million, if I remember correctly, for the General Manager and one of the deputy managers.- However, starting in nineteen ninety-two when the faculties of management and deputy managements were reviewed, as well as when the response given to one of the AGEF reports was known by the Board, where it ratifies the Manual for the Processing and Collection of Overdrafts, at that moment the agreement of eighty-seven becomes obsolete or meaningless, since one single official exceeded the sum that was previously achieved jointly, in such a way that it was not feasible to combine faculties from the date this agreement was taken in ninety-two.” (folio 57). Therefore, it must be considered a serious fault, insofar as it transgressed section II, point 5, of the repeatedly cited PROCEDURES MANUAL FOR THE PROCESSING AND COLLECTION OF OVERDRAFTS IN CURRENT ACCOUNTS, the validity of which has not been denied by the plaintiff.\n\n**B)** The objections under letter b), regarding the granting of EXTENSIONS (PRÓRROGAS), are also not admissible because their filing before the Tribunal was omitted. In any case, it is not only about whether or not it was possible to extend overdrafts (sobregiros), because the lower court (A Quo) does not allude, at least not solely, to the question of extensions, but also and above all, to the fact that an overdraft could not be granted when another one was pending—which was confirmed by the Appellate Court (Ad Quem)—and that this occurred in the case of AUTO TRANSPORTE EL CARMEN DE GUADALUPE, where it was demonstrated that while an overdraft (sobregiro) of ₡2,000,000 was in force, another overdraft of ₡20,000,000 was granted (proven fact No. 8, supported by the testimony of [Nombre1], folios 38-39). Indeed, in the attached archival documents, it is recorded that Messrs. AGUILAR [Nombre7] AND COB SABORÍO authorized, on February 3, 1994, a new overdraft (sobregiro) for ₡20,000,000, in account no. CED1, of said company, until March 3, 1994, despite the fact that another pending overdraft existed, authorized by the plaintiff himself, Aguilar Mojica, on January 18, 1994, in that same account and company, for ₡2,000,000, until April 18, 1994. Without it being recorded anywhere that the previous overdraft was canceled with the establishment of the new one (see folios 0000010, 0000011, 0000012, and 0000013 of the administrative file, package No. 2.). This is confirmed, moreover, by witness [Nombre8], who served at the time for the former SUGEF, who declared, in what is of interest, that: “In the case of Auto Transportes, while the overdraft of two million was in force, the one for twenty million colones was granted, I recall that on the same approval form by hand (I don’t know who wrote it), it was acknowledged that it had another overdraft of two million colones in force.” (folio 39 front). For his part, the witness—and auditor—Mr. [Nombre6] stated, in what is of interest, that: “It is also important to mention that one of the irregularities that I found was granting more than one overdraft authorization for the same account, which also contravenes what is established in the Manual given the very nature of the current account in which a single balance is managed.- In other words, the existence of more than one overdraft in a current account was not viable.” (folio 56). This proven fact, about which the plaintiff conformed, in any case, insofar as it was not challenged by him before the Appellate Court (Ad Quem), and much less before this Chamber; which must then be considered a serious fault, insofar as it transgressed section II, point 12 of the repeatedly cited PROCEDURES MANUAL FOR THE PROCESSING AND COLLECTION OF OVERDRAFTS IN CURRENT ACCOUNTS, of January 21, 1988, in force at the time, which literally provided that: **“two authorized overdrafts cannot exist for the same current account**, but a new overdraft can be established to cancel the previous one.” Above all because, from those same folios, it is evident that these were, in both cases, authorizations for new and/or independent overdrafts, since despite being assigned the same No. 580194, both appear, on the forms of the current accounts section, under the overdraft type code “1 -authorization” and not under any of the other codes, for example “2-cancellation”, or “3-extension, reduced or increased”; besides the fact that on the authorization slips, signed by the plaintiff here, Mr. [Nombre7], received by said section, it is only indicated as a note “please take note and carry out the necessary procedures,” and in no way that it was, e.g., an extension, a cancellation, or an increase, much less, that they were provisional overdrafts.\n\n**C)** The claim enunciated under letter C), regarding GUARANTEES (GARANTÍAS), is also not admissible, because likewise it was not formulated before the Tribunal. In any case, although the criminal judgment indicates that one must not lose sight of the fact that “the classification that a determined person, whether natural or legal, had in their history as a client of the bank were aspects that according to Article 5 of the procedures manual gave the power to apply ‘its own criterion’...” and that banking practices existed by virtue of which, over time, the granting of guarantees was dispensed with, nor must one lose sight of the fact, as stated, that practices contra legem are illegal—and moreover, unconstitutional—and that point 5 of section II of the cited procedures manual, in truth, established a discretionary power, but not a total or absolute freedom, by establishing that “the official resolves the overdraft, approving or denying it, according to his own **criterion and the analysis of the data in his possession.**” (emphasis added); which means, of course, that while he could approve or deny verbal—or “unauthorized”—overdrafts according to his own criterion, he could not do so outside the existing regulations, but rather subject, in all cases, to the limits of reason, logic, technique, and science, among others, since that same norm very clearly establishes that said criterion had to be based, one way or the other, on the analysis of the data in his possession. To which end we can cite, e.g., the analysis of financial statements audited by an external certified public accountant, at least for the last immediate prior fiscal period. A requirement in force, at least until April 1994, since it was not until Article 15 of the Board of Directors meeting No. 30-4-94, of April 12 of that year, that it was agreed, in what is of interest, that the approving instance could exempt the requesting company from this requirement (see document in package No. 1). From which it follows that before that date this requirement could not be dispensed with, a requirement that in this case is notably absent. Moreover, it is evident that an abusive use was made of “unauthorized” or verbal overdrafts, since according to point 4 of section I of the cited Manual, “Unauthorized overdrafts are those that originated, principally, from the cashing of a check or the processing of a debit note to a specific account with insufficient funds, to cover the transaction.” And in no way, a method to circumvent the existing requirements for normal, ordinary credits. Note, furthermore, that witness [Nombre8], who worked with the then General Audit Office of Financial Entities, declared, in what is of interest, that “The procedure we followed was the following: 1.- We inquired what prior studies had been done for the granting of the overdraft.- 2.- If the debtor’s payment capacity was analyzed.- 3.- Purposes for which the resources would be used. 4.- Guarantees offered.- In the cases mentioned—referring to two overdrafts granted to Autotransportes El Carmen de Guadalupe—, we found that there was a type of overdraft called verbals, where the officials authorized by the Board of Directors granted or conceded overdrafts without them being processed by the Credit Dept. (...) We looked for what studies had been done for the granting of the credit, but we did not find any supporting documentation, **(credit studies to grant it)**, so we verified in Custody, which is where documents that serve as a guarantee for the different credits are kept, if any document existed for these overdrafts, this more than anything for the last of the overdrafts which was one of the larger ones.- The person in charge of custody signed a list of several overdrafts for us where it was recorded that there were no documents for those indicated on it. In the specific case I mentioned, there is a record of this.” (folio 38 front and back). Later, he indicated that: “In the case of Auto Transportes El Carmen, no backing or guarantee document was found (mortgage, bill of exchange), for which the person in charge of Custody signed a record.” (folio 39 front and back). A situation that of course the plaintiff could not ignore, since the witness and auditor, Mr. [Nombre6], declared: “...Regarding the criterion of external oversight bodies, I learned at the end of nineteen ninety-two of a pronouncement issued by the Office of the Comptroller General of the Republic (Contraloría General de la República) which, among other things, pointed out the illegality of granting credits without guarantee, referring to credit in current accounts.- As a result of my concerns, and given that the same Organic Law of the National Banking System indicates the obligation to take a guarantee when granting a credit, I informed the General Manager, with a copy to the Deputy Managers, of this pronouncement through official letter number 1-93, since it was at the beginning of nineteen ninety-three, a time when the plaintiff was deputy manager.- I wish to amplify here that this was not the only note, since there exists a series of notes, including one in which I invited the plaintiff to present a document before the Board of Directors as a starting point to discuss and review the situation of the credit in current accounts that had been occurring.” (folio 56 front and back). Reasons for which the reproaches set forth at this point by the legal representative of the plaintiff must be rejected.\n\n**E)** The grievance contemplated in item **e)** of the grievance brief was omitted from presentation before the Appellate Court (Ad-quem). Now then, despite the fact that the appellant indicates that the constant extensions did not prevent the collection of interest, by virtue of the fact that they were capitalized on each occasion, and that therefore, in the event of non-compliance, they could be made effective through collection; this does not detract from the fact that, as the defendant stated in its response, through his actions he not only facilitated the perpetuation of these overdrafts, transgressing section II, point 10 of the repeatedly cited PROCEDURES MANUAL FOR THE PROCESSING AND COLLECTION OF OVERDRAFTS IN CURRENT ACCOUNTS, of January 21, 1988, in force at the time, which literally provided that: “In the event that a client wishes to extend an overdraft, they must request it in writing to the Loans Section, before its expiration, so that the corresponding formalities can be carried out. According to the Board of Directors' agreement from session 68-8-86 of 8-18-86, Article 5, it was determined to extend the term for credits in current accounts to 90 days, extendable at the client’s request and at the Bank’s discretion, for equal periods, **up to one year.**\n\nAn overdraft that has reached its maturity could not be extended”; but also, and above all, because through that route it was made to appear that there were profits which in the end were fictitious, by virtue of the fact that the constant extensions prevented them from becoming past due and triggering the application of subsection 3) of Article 56 of the Organic Law of the National Banking System. An assumption that, if one looks closely, was precisely the one explained by the Auditor, Mr. JORGE TOMAS [Name6], when he stated: “I consider it important to mention that extending the overdrafts generated their increase by virtue of the fact that the interest was charged to the account itself and consequently the overdrawn balance grew and could result in fictitious profit for the Institution.- The constant extensions prevented the overdraft from being more than one hundred eighty days past due and consequently it was not possible to apply the provisions of the Organic Law of the National Banking System, regarding not accounting for interest for those credits more than one hundred eighty days past due.- I recall cases such as that of Importadora Numa where the plaintiff acted jointly with another official whose name I do not remember to extend the overdraft.- Another case was with the checking account of Limonal S.A., Ecológico Rent a car, [Name9] , Pavimentos Nacional S.A., among others,...”. (folio 56). Therefore, the reproach that what Mr. [Name6] said is from the point of view of auditing leads nowhere, as that is precisely the issue. Given that, as the appellant himself explains, according to the law, interest cannot be accounted for credits more than 180 days (6 months) past due, that is, carried to the financial statements —as if they were profits, already realized— because they have not been generated, really —since they only constitute an accrual— especially because they are of doubtful recovery (due to the duration of the credit), under the expedient, we say, of constant extensions. D) The grievance contemplated in item D), of the statement of grievances, regarding the case of BOTICA FRANCESA, was omitted, entirely, from presentation before the Ad Quem, and is therefore inadmissible. In any case, the allegation is improper. There is no doubt that by accepting a check, in substitution of a mortgage certificate, even if the former was for a greater amount, and the latter was of sixth degree, one acted lightly and against common sense. This is unacceptable especially for a high-ranking, long-standing bank official, such as the plaintiff was. Suffice it to say that, as is well known, a check drawn and received as a guarantee, as the plaintiff received it, loses by that very fact its nature, that is, its condition of an unconditional payment order; thus simultaneously enervating, for the same reason, the criminal liability that the issuer has, when drawing a check without funds, precisely due to the evident absence of intent. Besides raising difficulties, in the civil route of summary execution, for the same reasons. Be that as it may, the fact is that the aforementioned check turned out to be without funds, when consulted, which implies, of course, that there existed, and the plaintiff should have presumed so, the improper design of obtaining a source of income to pay what, under normal conditions, one was not economically capable of fulfilling. What has been said so far leads us to reject the objection in point F), of the statement of grievances, that is, the clarification made, regarding what was said by the appellant, in point 5 of his appeal, given that on that occasion he admitted, without a doubt, regarding the overdrafts analyzed by the A Quo, “...that for one reason or another they failed to be paid or were not given under the normal conditions in which [Name2] used to do so...”. (see folio 138). In accordance with everything analyzed up to now, it is idle to analyze the rest of the grievances, by which he alleges that the verbal overdrafts were authorized and regulated; that he acted in accordance with the law and existing policies, that there was always a guarantee because, even if documentation was not signed, the overdraft constituted a guarantee, an executory title, for collection purposes. Or else, that joint liability and extensions were permitted, and that therefore he did not circumvent the control and oversight of the Board of Directors or of Auditing, since he only applied, as a simple assistant manager, the existing regulations. Or also, in that he points out that the plaintiff, in his function, complied with all regulatory provisions. For these allegations, for all the aforementioned reasons, are useless, as they are inconducive. Consequently, the appeal cannot be upheld; given that the errors pointed out, in the opinion of this Chamber, did not occur. XI.- For the reasons given, it is possible to conclude that the dismissal of Mr. [Name7] is justified, since, due to his high rank, as assistant credit manager, extensive work history, and his technical functions, he was obliged to lead by example and proceed with strict adherence to the existing regulations and techniques governing banking activity, in accordance with the doctrine of Article 213 of the General Public Administration Law. Quite to the contrary, the actions of Mr. [Name3] reveal a disregard for the regulations then existing. Among others, but not exclusively, as stated, by overstepping his authority, as Assistant Credit Manager, that is, in his powers, inherent to his position and not personal, individual, and independent (a serious defect, in accordance with Article 129 of the Law General of Public Administration, subsidiarily applicable); approving overdrafts, while another was pending, on the same account; and accepting an inconvenient substitution of guarantee; putting at risk the public assets that had been entrusted to him to safeguard. The cited facts are —furthermore— contrary to the requirements of good faith, understood as loyalty, rectitude, and probity, in the performance of the functions entrusted to the public servant, capable of constituting serious misconduct that justifies dismissal without employer liability. It is inexcusable that having started working for the Bank on November 6, 1961, as an employee in general services and from then on, having moved up various positions, until reaching the position of Assistant Credit Manager, in 1991, as he states, he incurred the errors that were detailed. On the subject of misconduct committed by bank officials, this Chamber has stated: \"There exist, then, connoted employer interests that need special legal protection, which can be observed from the angle of general requirements due to the institutional and public nature of the Banks, and by reason of the type of activities to which they are dedicated, and lastly, the particular requirements by reason of the position held. The general requirements are highly qualified duties that apply to all bank employees, even if they have not been expressly included in the employment contracts, nor in the regulations, but which are considered tacitly incorporated into the employment relationship by virtue of the state and public nature of our Banks and the mandate derived from the first paragraph of Article 19 of the Labor Code, given that the banking business demands economic security, seriousness, good reputation, and other requirements necessary for its development. The particular requirements or duties must be related to the general ones, but find their principal origin in the position the employee holds. Here the element of 'trust' attains significant importance in the evaluation of the bank employee's misconduct and particularly if the misconduct itself relates to the employee's specific obligations. Lastly, the employee's personal conditions and merits can act as 'aggravating circumstances' or as 'mitigating circumstances' (vote No. 114 of 2:00 p.m. on August 1, 1989). \"... when dealing with misconduct committed by bank officials or employees, one must proceed with greater circumspection in its assessment, given that the prestige and image of the entity are at stake, in relation to third parties who use its services, for the handling and custody of monies and securities. Due to the special and delicate nature of their function, the bank servant in general must be an honest, irreproachable, loyal, and, fundamentally, trustworthy worker; all these being characteristics and obligations inherent to their employment contract —Article 19 of the Labor Code—. The moment a servant of a Bank, state or private, all comprised, in turn, within the concept of the National Banking System, contravenes any of those obligations imposed by the contractual bond, for the benefit of a third party or for personal gain, there is not the slightest doubt that it calls into question the internal structure and organization of the entity, thereby diminishing the good service they are obliged to provide, for the launch of programs or projects of collective benefit, insofar as they contribute to the improvement and economic reactivation of the country, with public or private funds, in the context of mixed banking. Under these conditions, when the bank official attacks the internal structure of the Institution, breaking the legal framework in force therein that regulates their conduct, they will act, in turn, contrary to the good faith, probity, loyalty, and trust that inspire their employment contract and, therefore, will become deserving of the maximum sanction to be imposed, namely, their dismissal without employer liability. It is worth emphasizing that the reprehensible conduct of the servant does not necessarily have to cause economic, real, and effective harm to the employer; it may even be potential, but no less sanctionable on that account, due to the deterioration of prestige that it may bring to the Bank's image, both internally and externally.\" (resolution No. 202 of 4:05 p.m. on July 3, 1996). “Regarding the misconduct committed by the bank employee, this Chamber has reiterated the criterion that it is sufficient to determine facts that reasonably cause trust in the servant to be lost; such as serious negligent conduct that endangers the employer's assets; for the latter, justifiably, to be able to terminate the relationship, since in that way the employee's suitability to fulfill their obligations is placed in doubt. This type of official, by the very fact of carrying out activities related to the handling of considerable sums of money, is obliged even more than any other worker to act in an extremely careful manner, exercising the utmost diligence in the performance of their tasks; for, if they fail to do so, the interests of the banking entity, their employer, can be seriously affected, as happened in the matter under review (see Votes of this Chamber numbers 79, of 9:10 a.m., on August 17, 1988 and 40, of 9:50 a.m., on March 12, 1993). Consequently, their misconduct must be assessed with greater rigor, for a poor functioning of the system can not only harm the entity from an economic point of view, but can also affect its prestige and image, in relation to third parties who use its services, for the handling and custody of monies and securities” (ruling No. 416 of 11:00 a.m. on July 27, 2001) XII.- The Chamber concludes, in definitive, that the objections of the cassation appellant on the point that his dismissal is unjust, on the basis that he acted in accordance with the existing regulations, are not receivable. And consequently, that the acts for which the plaintiff was reproached, which in the case were deemed proven and which were classified as serious misconduct, as well as the sanction imposed, have full legal justification, and that the censures he has been offering are no more than reproaches that do not have the virtue of erasing the misconduct committed. Consequently, the appeal filed must be rejected, and the challenged judgment confirmed.\"\n\n**III.-** In the labor process, as established by numeral 559 of the Labor Code, the appeal in cassation for reasons of form is not admissible, when only the correction, replacement, or execution of procedural steps is requested. On this topic, this Chamber, in Voto N° 67 of 09:30 hours of February 27, 2002, stated: “... **II.-** In this matter, the appeal is admissible only regarding issues of substance and not of form. This is expressly established by numeral 559 of the Labor Code and has been resolved in repeated pronouncements, in which the reason supporting the legal impossibility has been explained, so that in the appeal of third requested instance, allegations for errors of procedural order, committed during the course of the litigation, may be examined. On this topic, the former Cassation Chamber, in its resolutions of 15:45 hours, of July 13, 1979; and of 16:30 hours, of July 6, 1977, indicated: “**II.-** In view of the fact that most of the grievances invoked by the appellants aim to address formal aspects of the judgment being challenged, it is prudent to make the following considerations. Article 495 of the Labor Code, as relevant, states: \"Once the matter arrives on appeal ... of the judgment before the Superior Labor Tribunal, the latter shall review, first, the procedures; if it finds that any formality capable of causing effective defenselessness has been omitted, it shall decree the nullity of proceedings or resolutions that is appropriate and to the extent necessary to guide the normal course of the trial. In this case, it shall return the expediente to the Judge, with a precise indication of the omissions that must be corrected and the disciplinary correction that corresponds, if there is merit to impose it. Otherwise, it shall issue its ruling, without any procedure, within seven days following the day on which it received the expediente, unless it orders some evidence for better provision, which shall be presented within fifteen days. **Every judgment of the Superior Labor Tribunal shall contain in its operative part, a specific declaration that it has observed no procedural defects in the processing of the trial in question...\". Additionally, Article 552 of the same Code establishes: \"Once the case records are received, the Chamber shall reject the appeal outright if it has been filed against the provisions of Articles 549 and 550. It shall do the same when **the appeal only requests the correction, replacement, or execution of procedural steps**” (bold is by the drafter). The cited articles exclude any possibility of alleging formal defects, in an appeal before the Chamber that hears labor matters. This emerges from the records of the Congressional Commission that, at that time, upon reporting on the draft of the Labor Code, as recorded on pages 15 and 153 of the 1943 Edition of the Labor Code, National Printing Office, indicated: \"We obligate the Superior Labor Tribunal to record in the operative part of its rulings that it has observed no procedural defects in the processing of the trials, with the **object that the parties may not appeal before the Cassation Chamber for violations of form, according to the definition that the Code of Civil Procedure gives to these...**” (the bold is also ours). From the foregoing, it is clearly inferred that the will of the legislator was to leave in the hands of the second-instance Tribunal everything related to the examination of eventual procedural defects and, consequently, this third requested instance only has jurisdiction to hear matters concerning substantive aspects, with the exception of some serious defects of incongruence or gross breaches. (...). ”(See Votos números 62, of 9:00 hours, of March 26, 1993; 155, of 10:10 hours, of June 9, 1999, and 397, of 10:00 hours of July 20, 2001) ...”. This being the case, the Chamber lacks jurisdiction to rule on the objections of procedural order invoked by the appellant, relating to the nullity of the ruling, which he bases on the fact that the judgment commits inaccuracies by correcting part of the proven facts and modifying their evidentiary basis. Nor is it an obstacle, at least in this case, that the alleged errors were committed or confirmed by the Ad Quem, given that, as will be seen, in any case they are inadmissible and/or useless, for being inapposite. Let us see: Although in proven fact Nº 4, related to overdrafts of AUTOTRANSPORTE EL CARMEN DE GUADALUPE, the A Quo cites as an element of proof the testimony of [Nombre1] from folio 38 verso, and the Ad Quem indicates, in its place, that the evidentiary basis of that fact is the complaint and its answer, from folios 2,3, 11 to 17 respectively, one can only deduce that it is a material error. That is to say, that with this the only thing the Ad Quem intended to correct was the omission contained in proven fact Nº 3, of the A Quo's judgment, which states: “That the Intervention Board of Banco Anglo Costarricense deemed the administrative channel exhausted on December sixth, nineteen ninety-four.”, given that, upon a careful look, regarding this proven fact, the A Quo omitted entirely to cite the evidentiary elements and the respective folios of the expediente. The same can be said regarding the other claim, that is, that despite both parties agreeing that the plaintiff's date of entry was in 1961, and not in 1991, as the A Quo erroneously deems proven, and confirmed by the Ad Quem, then this only constitutes a slip, which in no way constitutes, by itself, defenselessness or a violation of due process. Consequently, these are different assumptions from those that constitute the precedent cited, namely Voto N° 107-92 of 9:30 hours of May 20, 1992. Furthermore, these are objections that were not raised in due time, before the instance bodies, for their correction, because although the appellant filed a motion for clarification and addition, with concomitant nullity, it was not for these reasons (see folios 503 and 504 to 506), such that he conformed to what was resolved, and therefore he cannot now seek the nullity of the judgment. In any case, these objections prove useless, for being inapposite, given the manner in which the Chamber resolves this appeal.\n\n**IV.-** Repeatedly, this Chamber has considered that the complaint and its answer delimit the object of the litigation, that is, they fix the objective and subjective limits within which the debate must develop and the judgment be produced. In such a way that the parties are prevented from altering the bases on which they have brought the litigation, in pursuit of the fundamental guarantee of due process and procedural balance; otherwise, the opposing party would be prevented from arguing and presenting exculpatory evidence, remaining in a situation of disadvantage and defenselessness, in breach of the right of defense in trial (In this regard, see the votes of this Chamber, Nº 423, of 9:50 hours of August 1, 2001; Nº 54, of 10:10 hours of February 13; Nº 103, of 14:45 hours of March 13; and Nº 292, of 10:10 hours of June 14, 2002). The plaintiff seeks for this Chamber to declare the nullity of the dismissal, which he bases: **1º.-** On a violation of Article 39 of the Organic Law of the National Banking System, as he states that by virtue of that rule, his removal as Sub-Manager could only be granted with the vote of no fewer than five members of the Board of Directors; and that this did not occur, given that it was the Intervenor of Banco Anglo Costarricense who decreed his dismissal, individually, not collegially, that is, without the concurrence of the other members of the Intervention Board, or those of the Board of Directors of the Central Bank, or those of the Liquidation Board. **2º.-** On an omission to apply the Collective Bargaining and Arbitration Agreement, as he states that by virtue of that agreement, the Labor Relations Board necessarily had to rule on the nature of the dismissal and the existing evidence, given that this agreement, as well as the cited Board, remained in force. However, upon reviewing the case records, it is observed that these issues and objections were not raised in their due time, that is, in the complaint -neither in the facts nor in the procedural claim-, and much less in his appeal, which demands a declaration of that kind, all of which renders the grievance inadmissible.\n\n**V.-** In accordance with the provisions of Article 502 of the Labor Code and as ordered by the Constitutional Chamber in its Votos N°s. 5.798, of 16:21 hours, of August 11, 1998; and, 1.306, of 16:27 hours, of February 23, 1999, the Labor Tribunal may confirm, amend, or revoke what was resolved by the first-instance judge; **but such power is subject to the specific grievances that the disagreeing parties expressly raise before it.** Now then, as established in Article 500 of the same Code, the appeal must be filed within the third day, counted from the last notification. In subsection c), of the following numeral, it is indicated that once the parties are notified, the expediente shall not be sent to the Superior, even if they have appealed, until one day after the indicated three-day period has elapsed, so that they may set forth, before the same first-instance body, the express and specific reasons for their disagreement. (In this regard, see the resolutions of this Chamber, N°s. 367, of 16:10 hours, of October 7; 386, of 14:20 hours, of December 10, both of 1999; 55, of 10:40 hours, of January 12, 2000; 167, of 9:00 hours, of March 9; and, 454, of 10:00 hours, of August 10, both of the year 2001).\n\n**VI.-** Having analyzed the **appeal**, in what was indeed raised, timely, by the plaintiff's representative, it is found that the grounds for grievance were these: 1.- In the first point he indicates, in summary, that the A Quo's judgment reached the conclusion that the plaintiff committed serious faults in granting overdrafts to various clients of the Bank, since he should have been more prudent with public interests, because he was administering public funds. Likewise, that said judgment punctuates a series of cases where, according to the plaintiff's actions, it reflects the carelessness he incurred in the handling of resources, by granting, in a liberal manner, overdrafts under those conditions. Therefore, he estimated that his actions justified his dismissal, due to the negligence with which he acted and cites a judgment that supports that the public official is obligated to safeguard state interests. 2.- In the second point he states that he respects the basis of the ruling but does not share it. He recalls that by 1994, the Board of Directors and Management of that Institution established a famous program called \"Agile State Banking\" with the eagerness to facilitate and finance credits and collaborate with the development of various national companies.\n\nIt explains that the plaintiff was simply acting as an Assistant Manager and, like the other lower-ranking employees, had to comply with the directives and orders of the Board of Directors and the General Management, which were issued at that time for the administration and handling of that type of credit, called an “overdraft (sobregiro).” That if the plaintiff had opposed the aforementioned program, the overdrafts, and approving them—because public funds were at risk—and supposing that said program had been successful, he would instead have been terminated immediately, without employer liability, for not having complied with the successful policies and directives issued, since the decision in that regard had already been made by said bodies. In other words, if one complies with the directives, one is dismissed, and if one does not, one is also dismissed. 3.- In the third point, it reproaches that it was not taken into account that when the “Banca ágil” program began, the plaintiff had already provided uninterrupted services to the Institution for over thirty years, without ever having been sanctioned for any fault, and that he did not elect to take his retirement, with the purpose of collaborating in said Program. That if he had retired, he would not have had any problem as a consequence of the Bank’s debacle. 4.- In the fourth point, it notes: That it is public knowledge that all the directors and the Manager were criminally convicted for the improper administration of the entity. That the debacle of that Bank did not originate from the overdrafts but from the acquisition of Venezuelan foreign debt bonds that defunded it, without the plaintiff having any participation in the latter. And that this is compounded by the thoughtless closure based on political motives or reprisals that economically harmed all Costa Ricans. 5.- In the fifth point, it indicates: that all the foregoing things are said in the eagerness for the context in which the events occurred to be appreciated in a better way, and not by analyzing point by point a few overdrafts that, for one reason or another, were left unpaid or were not granted under the normal conditions in which [Name2] was accustomed to doing so. That its client handled the overdraft branch for amounts of millions upon millions of colones and there had never been problems before. It alleges that its client has ended up being a scapegoat and it is unjust that because of his spirit of service and having stayed working during the Bank’s financial collapse, his labor rights were not paid to him and he had to face a criminal process. 6.- In the sixth point, it complains that the judgment was based on the problems of a few overdrafts and reproaches that it was concluded that these suffer from deficiencies and irregularities. It objects that they did not take into account the other unproven charges attributed to the plaintiff, which were invoked to dismiss him without any reason. 7.- In the seventh point, it says that it will later explain, in a new brief, regarding the particulars of the overdrafts that are deemed to have been improperly granted. 8.- In the eighth point, it indicates that, as can be seen from everything set forth, the plaintiff acted within the framework of his legal powers and according to the financial policy directives of the Banco Anglo Costarricense, which makes his dismissal unjustified (folios 137 to 139). Subsequently, he submitted, as evidence for better provision (prueba para mejor proveer), the acquittal in the criminal judgment, limiting himself to indicating, with respect to it, that: “2.-As is very well explained in that judgment, my represented party lacked all responsibility for the criminal acts attributed to him, which were classified as ten crimes of embezzlement (peculado), at the time, by the Office of the Prosecutor General of the Republic (Fiscalía General de la República).” (folio 215). The Ad Quem noted that it only had to decide on those reproaches visible at folios 137 to 139, given that the expansion of arguments contained in the brief at folios 145 to 147 was untimely, which is correct because, as was explained in the preceding Considerando, it was not obligated to rule on those other, new arguments formulated to it outside the time limit.\n\n**VII.-** Having analyzed the cassation appeal (recurso de casación), the surviving grounds of grievance, for which it accuses **misapplication of the existing regulations, which leads the court to improperly apply labor law**, are the following: It alleges a substantive error for having ignored the regulation (reglamentación) and Board agreements, then in force and mandatory, which, it says, regulated the granting, approval, extensions (prórrogas), and cancellations of overdrafts. Likewise, that it did not submit the acquittal in the criminal judgment to call into question the independence of jurisdictions, as the Ad Quem seems to misunderstand it, but for a greater understanding of the problems that occurred at the Bank, since said judgment explains and clarifies a series of facts, among others, the existence of regulations, which, it says, justify and explain the plaintiff’s activities. It then divides the judgment into three sections. Regarding the first section: **A) ON THE JOINT UNDERTAKING (MANCOMUNACIÓN):** It indicates, in summary, that it was a common and regulated practice among high-ranking officials, to share responsibilities, to raise the limit and thus be able to approve overdrafts. That it is contradictory that in the judgment of the A Quo, confirmed by the Ad Quem, it is said, on the one hand, that undertaking jointly was possible, and that this is reproached, on the other hand, as a labor irregularity. That in the criminal judgment it is said that this was permitted; and that [Name3] and [Name4] said so in the present proceeding. **B) ON THE EXTENSIONS (PRÓRROGAS)**: It indicates, in summary, that the judges also sanction him for the granting of extensions, despite the fact that they were authorized and regulated and that he merely applied them. To that effect, it reviews what was declared, in part, by the witnesses [Name3] and [Name4]; as well as what was said, on the matter, in the criminal judgment; and finally adds that according to what was explained about the joint undertaking (mancomunación), nothing prevented the extensions, if indeed they occurred. **C) REGARDING THE GUARANTEES (GARANTÍAS):** It indicates, in summary, that nothing can be reproached of him in this regard because these were verbal overdrafts (sobregiros verbales), which according to the cited Manual were authorized without the need to sign a document, and that according to witness [Name3], only a form was filled out; and that both he and witness [Name4] said that he was part of the officials empowered to grant them. Furthermore, it transcribes, in part, what was considered on the matter in the criminal judgment. **D) REGARDING THE CASE OF [Name5]**: It alleges that he was not criminally accused for this case, which it attributes to his conduct being considered not illegal; and for that reason, it requests an assessment as to whether his conduct represents any irregularity from the labor perspective. That this company’s case was handled interbank to help it overcome its financial crisis and thus avoid other types of problems. That being a sixth-degree mortgage certificate (cédula hipotecaria), it provides less of a guarantee than a check, even one without funds, due to the criminal liability of its issuer. That he did not know it was without funds, as he only received it as a substitution of guarantee, under his criteria, by reason of his high rank, to help the company and, in passing, favor the interests of the Bank, which is normal, and therefore he acted in accordance with the regulations and existing banking practices, which are a source of law. That as the witness for the plaintiff himself said, the check was for an amount of ¢30,000,000, superior to the sixth-degree mortgage certificate for ¢25,000,000. And that despite this witness saying the check was checked and had no funds, there is a doubt that must favor him, since that document was not brought into the case file, besides the fact that the witness said it was his colleague who handled the case, and she did not testify. **E)** It indicates that it is erroneous that it was said that with the constant extensions, the overdrafts were prevented from reaching an **age (antigüedad)** of 180 days, and therefore the collection of interest was impeded because the interest was collected upon each extension, as it accumulated to the principal, along with other expenses and commissions; or, that this could result, from an accounting and financial perspective, in a fictitious profit in case of default, as stated by the witness and auditor, Mr. Quirós, since in that case, the interest, as well as the capital, could be executed through collection actions. It indicates that according to the criminal judgment, it was the Board of Directors and not him who was in charge of approving credit policies, and because of that, as a simple executor, he bears no responsibility. **F) FINAL CLARIFICATION:** It indicates that overdrafts were a reality, and that is why some are known and will continue to be known in the Courts. And furthermore, that when it said that some overdrafts were not granted under the normal conditions in which they used to be granted, this was not in the sense of irregular or illegal, but rather, according to what was explained in the criminal judgment, that is, that they changed in their modalities over time, as “a hook to pull in clients,” as witness [Name4] said, as the regulatory provisions changed to adapt them to the Board’s policies. **Regarding the second part:** It indicates that verbal overdrafts were authorized and regulated. That he acted in accordance with the law and existing policies. That there was always a guarantee because, even if documentation was not signed, the overdraft constituted in itself a guarantee, that is, an executory title (título ejecutivo) for purposes of judicial collection. It adds that joint undertaking and extensions were permitted, hence he did not circumvent the control and oversight of the Board of Directors or Auditing, since what he did was apply the existing regulations, as a mere assistant credit manager. **Regarding the third part:** It indicates that, as was analyzed, the plaintiff fulfilled, in his function, all existing regulatory provisions and that is why the dismissal was unjust.\n\n**VIII.-** It has repeatedly been established that grievances formulated before this Chamber (Sala), in order to be procedurally and legally admissible, must have necessarily been raised before the judges of the prior instances; inasmuch as, in accordance with articles 598 and 608 of the Civil Procedure Code (Código Procesal Civil), applicable by virtue of numeral 452 of the Labor Code (Código de Trabajo), only those questions that have been timely proposed and debated by the parties can be the object of the appeal; and, furthermore, they must unavoidably have been previously invoked before the jurisdictional body of the second instance when the judgment it issues is—as in the present case—merely confirmatory of the ruling handed down by the A-quo. Consequently, claims not formulated before the Ad-quem, by virtue of the principle of procedural preclusion (preclusión procesal), also cannot be validly raised in this third instance; the jurisdiction of the Chamber thus being legally limited. (On this topic, one may consult, among others, Judgments Nos. 536 of 9:40 a.m.; 537 of 9:50 a.m.; and 540 of 10:20 a.m., all of September 7 of the past year 2001). Having comparatively analyzed the claims raised, it is glaringly obvious that the detailed reasons that it now sets forth before this Chamber, and which in its opinion warrant granting the appeal, are surprising, in their vast majority, for being novel in relation to what was reasoned in its appeal; that is, in relation to the rather general grounds on which it based its disagreement and which, in its judgment, gave merit for the Ad Quem to amend the judgment in whole or in part. It is on record that in the seventh point of its appeal, it indicated that it would later explain, in a new brief, regarding the particulars of the overdrafts deemed to have been improperly granted. Therefore, by virtue of that procedural principle of preclusion, the Chamber cannot analyze and resolve all the grievances now wielded, but only some of them. Particularly, insofar as they relate not to a question of fact, but of law, that is, in relation to its general allegation that the plaintiff acted within the framework of his legal powers.\n\n**IX.-** Thus we have that, in its brief visible at folio 215, by which it offered the acquittal in the criminal judgment, the plaintiff limited himself to indicating that: “2.-As is very well explained in that judgment, my represented party lacked all responsibility for the criminal acts attributed to him, which were classified as ten crimes of embezzlement, at the time, by the Office of the Prosecutor General of the Republic.” As can be seen, it did not indicate on that occasion, as it now explains, that it did so for the purpose of providing a greater understanding of the problems that occurred at the Bank, or because said judgment clarified a series of facts, among them, the existence of regulations, for the purposes of what could serve and contribute to the labor jurisdiction. Consequently, the objections that the submission of that judgment was misinterpreted by the Ad Quem, and that therefore it was not given the ideal treatment as a tool for a better perspective of the case, are inadmissible due to preclusion, since these are arguments that did not form part, as stated, of the brief offering that evidence. Insofar as the Ad Quem evidently could not rule on them, as they were not presented to it. Therefore, the Chamber is barred from hearing and resolving them, since doing so would mean acting as an appellate body and not as a rogatory third instance, which is illegal, as it goes against the right of defense and due process, in this case, of the defendant. In any case, even admitting, as the appellant indicates, that said judgment was only appealed by the Office of the Procurator General (Procuraduría) regarding the pecuniary aspects, it is evident that it lacks finality, at least, regarding the points concerning civil liability. Consequently, there is no choice but to endorse what was considered by the Ad Quem in this regard because the circumstance that criminally he was acquitted of all punishment and liability regarding the crime of embezzlement, in the modality of a continuing offense (delito continuado) to the detriment of the duties of the public function, does not neutralize the faults attributed to him. Given that there is independence between the criminal and labor forums; the criminal jurisdiction decided in that manner by application of the universal principle of in dubio pro reo in some of the cases accused and by certainty in others, particularly because it was assessed that the intentional element (elemento doloso) was not present in the conduct, which is not necessary in labor matters to consider that manner of proceeding negligent, and which led to them being considered serious faults. Indeed, that criminal acquittal does not weaken the merit of the fault, because in one forum and the other, the assessment made of the evidence is different. Nor does it erase the irregularities committed through non-compliance with the existing regulatory provisions, which as a public servant he had to comply with in accordance with the principle of legality. In effect, as will be seen, there is no doubt that the faults committed are sanctionable from the labor perspective, since they are incompatible actions, even with the regulations then in force.\n\n**X.-** The thesis it has been testing, that the faults attributed are not sanctionable from the labor perspective, but rather justified actions in light of the regulations then in force, requires for its admission the existence of a covering legal norm that empowered him. Something which, as will be seen, is not the case. **A.-** The objections under letter a), regarding JOINT UNDERTAKING (MANCOMUNACIÓN), are not admissible. Despite the fact that the arguments on this point are novel, since they were not wielded before the Ad Quem, and it is therefore a precluded question, even so, it is not noted that there existed an express norm that empowered him to grant overdrafts jointly or jointly and severally, at least on the date of the facts. From the cited criminal judgment, it is rather deduced that it was not until May 1994 (Session 42-5-94) that the Board of Directors finally authorized joint undertaking. From which it is inferred, without great interpretive effort, that if that was so, it was because before that date it was not normatively authorized. For which it can be concluded, as the Ad Quem did, that the plaintiff participated in a practice in this regard, which is reprehensible because, as is known, “...No one may allege ignorance of the law, except in cases authorized by the law itself. The waiver of laws in general has no effect, nor does the special waiver of those of public interest. Acts and agreements contrary to prohibitory laws shall be null, unless the laws themselves provide otherwise. A law is not repealed (abrogada) or derogated (derogada) except by a subsequent one; against its observance, disuse, custom, **nor contrary practice** may be alleged. ...” (article 129 of the Political Constitution (Constitución Política)). From which it is deduced that in a written system, and with greater reason in a state-owned Bank, governed by Administrative Law (Derecho Administrativo), at least regarding the internal processing and approval acts related to the granting of credits, it is logical, by application of the principles of legality and legal reservation (reserva de ley), that custom or practice contra legem—which seeks to modify or repeal it—is not admitted, but only secundum legem—interpretive—or praeter legem—supplementary. Indeed, “In Administrative Law, custom has been denied the character of a source for the following reasons: a) It is affirmed that, in application of the principle of legality, powers are attributed to the Administration by a written norm. Certainly, imperium powers are reserved to law (articles 12, paragraph 2 - a contrario sensu -, 59, paragraph 1, and 103, paragraph 1 - a contrario sensu - LGAP) and, even article 59, paragraph 2, LGAP establishes that ‘The internal distribution of competencies, as well as the creation of services without imperium powers, may be done through autonomous regulation (reglamento autónomo), but the same shall be subordinated to any future law on the matter.’ Indeed, the LGAP establishes that the regulation of external and internal powers must be carried out by written norm. Another important limit of custom as a source of law is that contained in article 85, paragraph 3, LGAP when establishing that transfers of competence—through delegation, avocation, etc.—may not be made by practice, use, or custom. b) The administered party cannot impose ties or limits on the Public Administration, so the two parties of the administrative legal relationship do not participate in the formation of the custom, but only one of them—the public administration. The foregoing is true, given that administrative custom emanates from the practices of the Public Administration as a form of self-limitation of its discretion in favor of the administered party. Custom, in order to serve as a source of Administrative Law, must be the reason for constraints or limits for the Public Administration to the benefit of the administered party. Note, on this point, that article 8 LGAP establishes that the administrative legal order shall be understood as integrated by unwritten norms ‘...necessary to guarantee a balance between the efficiency of the Administration and the dignity, freedom, and other fundamental rights of the individual.’ Administrative practices that give rise to customs are usually referred to administrative organization and procedure, which is why they usually have an internal or indirectly external repercussion.” (Ernesto Jinesta Lobo. Treatise on Administrative Law (Tratado de Derecho Administrativo). Volume I. General Part. First Edition 2002. Legal Library DIKE, pags. 189 and 190). From which it is also deduced that administrative practice does not proceed contra legem. And in the defunct Banco Anglo, the “REGULATION OF POWERS FOR THE GRANTING OF CREDITS” (REGLAMENTO DE LAS FACULTADES PARA LA CONCESIÓN DE CRÉDITOS) existed, whose last modification was made by article 6, session No. 62/07/92, of August 3, 1992 (see package No. 2, of attached documents), which clearly defined the competence by amount—¢15,000,000 in the case of the plaintiff, as assistant manager—which could not be exceeded because it established that said powers were inherent to their positions and not personal, and that the limits set for each official were individual and independent. The “PROCEDURES MANUAL FOR THE PROCESSING AND COLLECTION OF OVERDRAFTS ON CHECKING ACCOUNTS” (MANUAL DE PROCEDIMIENTOS PARA TRÁMITE Y COBRO DE SOBREGIROS EN CUENTA CORRIENTE) also existed, from January 1988, 1992 (see package No. 2, of attached documents), which established, in what is of interest, in section II, point No. 5, that if the amount of the obligation exceeded his powers, he had to submit it to the knowledge of an official with greater powers or to the board of directors if necessary. Since some joint overdrafts were prior to May 1994, there is no choice but to conclude that they were granted by the plaintiff irregularly, that is, contra legem. The testimonies that the appellant cites in its support are not admissible for the same reason, given that, as a matter of principle, witnesses do not prove against documents.\n\nTherefore, what was stated by the witness [Name4] is inadmissible in the case, since it evidently refers to said practice and, at most, to subsequent authorization by the board of directors. The same can be said regarding what was stated on the matter by the witness [Name3] (folios 40-42). On this point, the witness—former auditor—[Name6] was clear in declaring: “In relation to the joint exercise of powers to approve or extend overdrafts, which I came to detect, it was not a custom at Banco Anglo.- It is clear that (sic) the Overdraft Manual regarding the fact that if the amount of a credit exceeds the powers of an official, one must turn to an official with greater authority and even to the Board of Directors, in other words, the powers are individual and the action of collegiate bodies would be rendered meaningless in the face of the possibility of combining powers, potentially being able to substitute the Board of Directors itself by this means if they so proposed. -The powers of the officials as of 1992 were thirty million colones for the General Manager, fifteen million for the Deputy Credit Manager, the plaintiff herein, and ten million for the rest of the deputy managers.- Although it is true that in 1987 the Board of Directors at that time adopted an agreement that allowed the combining of powers, it did so exhaustively and indicated a maximum amount of eight million, if I recall correctly, for the General Manager and one of the deputy managers.- However, as of 1992, when the powers of the general management and deputy managements were reviewed, as well as when the response given to one of the AGEF reports—ratifying the Manual for the Processing and Collection of Overdrafts—was presented to the Board, the 1987 agreement became obsolete or meaningless, because a single official alone exceeded the sum that could previously be achieved through the combination of powers, such that it was not feasible to combine powers as of the date this agreement was adopted in 1992.” (folio 57). Therefore, this must be considered a serious offense, as Section II, point 5, of the oft-cited MANUAL DE PROCEDIMIENTOS PARA EL TRÁMITE Y COBRO DE SOBREGIROS EN CUENTA CORRIENTE was thereby violated, the validity of which has not been denied by the plaintiff. B) The objections under letter b), regarding the granting of EXTENSIONS (PRORROGAS), are also not admissible because their filing before the Court was omitted. In any case, it is not only a question of whether or not it was possible to extend overdrafts, because the Lower Court does not allude, at least not solely, to the question of extensions, but also, and above all, to the fact that a new overdraft could not be granted when another was pending—which was confirmed by the Appellate Court—and that this occurred in the case of AUTO TRANSPORTE EL CARMEN DE GUADALUPE, where it was demonstrated that while an overdraft of ¢2,000,000 was in effect, another overdraft of ¢20,000,000 was granted (proven fact No. 8, supported by the testimony of [Name1], folios 38-39). Indeed, in the attached file documents, it is recorded that Mr. AGUILAR [Name7] AND COB SABORÍO authorized, on February 3, 1994, a new overdraft for ¢20,000,000 in account no. CED1 of said company, until March 3, 1994, despite the existence of another pending overdraft, authorized by the plaintiff himself, Mr. Aguilar Mojica, on January 18, 1994, in that same account and for that same company, for ¢2,000,000, until April 18, 1994. Without there being any record anywhere that the previous overdraft was canceled with the establishment of the new one (see folios 0000010, 0000011, 0000012, and 0000013 of the administrative file, package No. 2.). This is further confirmed by the witness [Name8], who served, at the time, for the former SUGEF, who declared, in relevant part, that: “In the case of Auto Transportes, while the overdraft for two million was in effect, the one for twenty million colones was granted. I recall that on the same approval slip, by hand (I do not know who wrote it), it was noted that it had another overdraft of two million colones in effect.” (folio 39 front). For his part, the witness—an auditor—Mr. [Name6] stated, in relevant part, that: “It is also important to mention that one of the irregularities I encountered was granting more than one overdraft authorization for the same account, which also contravenes the provisions of the Manual, given the very nature of the current account in which a single balance is managed.- In other words, the existence of more than one overdraft in a current account was not viable.” (folio 56). This proven fact, which the plaintiff, in any event, conformed to insofar as it was not challenged by him before the Appellate Court, and much less before this Chamber, must therefore be considered a serious offense, as Section II, point 12, of the oft-cited MANUAL DE PROCEDIMIENTOS PARA EL TRÁMITE Y COBRO DE SOBREGIROS EN CUENTA CORRIENTE, dated January 21, 1988, then in effect, was thereby violated, which literally stated that: “two authorized overdrafts cannot exist for the same current account, but a new overdraft may be established to cancel the previous one.” Above all, because those same folios show that these were, in both cases, authorizations for new and/or independent overdrafts, since despite being assigned the same No. 580194, both appear, in the forms of the current accounts section, under the overdraft type code “1 -authorization” and not under any of the other codes, for example “2-cancellation,” or “3-extension, reduced, or increased”; in addition to the fact that the authorization slips signed by the plaintiff herein, Mr. [Name7], received by said section, only indicate, by way of a note, “I ask you to take note and carry out the necessary procedures,” and in no way indicate that they concerned, for example, an extension, a cancellation, or an increase, much less that they were provisional overdrafts. C) The claim stated under letter C), regarding the GUARANTEES (GARANTÍAS), is also not admissible, because it was likewise not presented before the Court. In any case, although the criminal judgment indicates that one should not lose sight of the fact that “the classification held by a given individual or legal entity in their history as a client of the bank were aspects that, according to Article 5 of the procedures manual, empowered the application of ‘their own criteria’...” and that banking practices existed by virtue of which, over time, the granting of guarantees was dispensed with, one must also not lose sight of the fact, as stated, that practices contra legem are illegal—and more than that, unconstitutional—and that point 5 of Section II of the cited procedures manual, in truth, established a discretionary power, but not total or absolute freedom, by establishing that “the official resolves the overdraft, approving or denying it, according to their own criteria and the analysis of the data in their possession.” (emphasis added); which means, of course, that although they could approve or deny verbal—or “non-authorized”—overdrafts according to their own criteria, they could not do so outside existing regulations, but rather subject, in all cases, to the limits of reason, logic, technique, and science, among others, since this same rule very clearly establishes that such criteria had to be based, in one direction or the other, on the analysis of the data in their possession. To which effect we can cite, for example, the analysis of financial statements audited by an external certified public accountant, at least for the most recent immediately preceding fiscal period. A requirement valid at least until April 1994, since it was only through Article 15 of Board of Directors session No. 30-4-94, of April 12 of that year, that it was agreed, in relevant part, that the approving body could exempt the requesting company from this requirement (see document in package No. 1). From which it follows that before that date, this requirement could not be dispensed with, which is lacking in this case. Furthermore, it is evident that abusive use was made of “non-authorized” or verbal overdrafts, since according to point 4 of Section I of the cited Manual, “Non-authorized overdrafts are those that originated mainly from the cashing of a check or the processing of a debit note to a specific account with insufficient funds to cover the transaction.” And in no way, a way to circumvent the existing requirements for normal, ordinary credits. Observe, moreover, that the witness [Name8], who worked for the then Auditoría General de Entidades Financieras, declared, in relevant part, that “The procedure we followed was as follows: 1.- We inquired into what prior studies had been conducted for granting the overdraft.- 2.- Whether the debtor’s ability to pay was analyzed. 3.- The purposes for which the resources were to be used. 4.- Guarantees offered.- In the cases mentioned—referring to two overdrafts granted to Autotransportes El Carmen de Guadalupe—we found that there was a type of overdraft called verbal, where the officials authorized by the Board of Directors granted or awarded overdrafts without them being processed by the Credit Department. (...) We searched for what studies had been conducted for the granting of credit, but we did not find supporting documentation, (credit studies to grant it), so we verified in Custody, which is where documents serving as a guarantee for different credits are stored, whether any document existed for these overdrafts, especially for the last of the overdrafts, which was one of the largest.- The custody officer signed a list for us of several overdrafts where it was recorded that there were no documents for those indicated therein. In the specific case I mentioned, there is evidence of this.” (folio 38 front and back). He further noted that: “In the case of Auto Transportes El Carmen, no supporting document or guarantee was found (mortgage, promissory note), and the Custody officer signed a certificate to this effect.” (folio 39 front and back). A situation that, of course, the plaintiff could not be unaware of, since the witness and auditor, Mr. [Name6], declared: “...Regarding the criteria of external oversight bodies, at the end of 1992, I learned of a pronouncement issued by the Contraloría General de la República which, among other things, indicated the illegality of granting credits without a guarantee, referring to credits in current accounts.- As a result of my concerns and given that the Ley Orgánica del Sistema Bancario Nacional itself states the obligation to obtain a guarantee when granting a credit, I informed the General Manager, with a copy to the Deputy Managers, of this pronouncement, through official memorandum number 1-93, as it was at the beginning of 1993, a time when the plaintiff was a deputy manager.- I wish to elaborate here that this was not the only memorandum, as there exists a series of memoranda, including one in which I invited the plaintiff to present a document before the Board of Directors as a starting point to discuss and review the situation of the credit in the current account that had been granted.” (folio 56 front and back). Reasons for which the criticisms raised on this point by the plaintiff’s attorney must be rejected. E) The grievance contemplated in item e) of the statement of grievances was omitted from presentation before the Appellate Court. Now, despite the appellant pointing out that the constant extensions did not prevent the collection of interest, by virtue of the fact that they were capitalized on each occasion and that therefore, in the event of default, they could be enforced through collection; this does not take away from the fact that, as the defendant pointed out in the response, his actions not only facilitated the perpetuation of these overdrafts, violating Section II, point 10, of the oft-cited MANUAL DE PROCEDIMIENTOS PARA EL TRÁMITE Y COBRO DE SOBREGIROS EN CUENTA CORRIENTE, dated January 21, 1988, then in effect, which literally stated: “In the event that a client wishes to extend an overdraft, they must request it in writing from the Loans Section, before its maturity, so that the corresponding procedures can be carried out. According to an agreement of the Board of Directors of session 68-8-86 of 8-18-86, article 5, it was determined to extend the term for current account credits to 90 days, extendable at the client’s request and at the Bank’s discretion, for equal periods, up to one year. An overdraft that has reached its maturity cannot be extended.”; but also, and above all, because by this means, profits are made to appear that are ultimately fictitious, because the constant extensions prevented them from becoming delinquent and prevented the application of subsection 3) of Article 56 of the Ley Orgánica del Sistema Bancario Nacional. An assumption that, if looked at closely, was precisely what the Auditor, Mr. JORGE TOMAS [Name6], explained when he stated: “I consider it important to mention that extending overdrafts generated their growth because interest was charged to the account itself, and consequently the overdrawn balance grew and could lead to fictitious profit for the Institution.- The constant extensions prevented the overdraft from being more than one hundred and eighty days past due, and consequently it was not possible to apply the provisions of the Ley Orgánica del Sistema Bancario Nacional regarding the non-accrual of interest for those credits more than one hundred and eighty days past due.- I recall cases such as that of Importadora Numa, where the plaintiff acted jointly with another official whose name I do not remember to extend the overdraft.- Another case was with the current account of Limonal S.A., Ecológico Rent a car, [Name9], Pavimentos Nacional S.A., among others,...”. (folio 56). Therefore, the criticism that what Mr. [Name6] stated is from an auditing perspective leads nowhere, as that is precisely the point. Since, as the appellant himself explains, according to the law, interest cannot be accrued for credits more than 180 days (6 months) past due, that is, carried to the financial statements—as if they were profits, already realized—because they have not really been generated—since they merely constitute an accrual—especially because they are of doubtful recovery (due to the duration of the credit), under the expedient, we say, of constant extensions. D) The grievance contemplated in item D) of the statement of grievances, regarding the case of BOTICA FRANCESA, was completely omitted from presentation before the Appellate Court, and therefore it is inadmissible. In any case, the argument is unfounded. There is no doubt that by accepting a check in substitution for a mortgage bond, even if the check was for a larger amount and the bond was a sixth-degree one, the plaintiff acted recklessly and contrary to common sense. This is unacceptable, especially in a high-ranking and widely experienced bank official such as the plaintiff. Suffice it to say that, as is well known, a check drawn and received as a guarantee, as the plaintiff received it, loses its very nature by that sole fact, that is, its condition as an unconditional order of payment; thereby simultaneously nullifying the criminal liability the issuer has when writing a check without funds, precisely due to the evident absence of intent. Aside from raising difficulties in the civil summary enforcement route, for the same reasons. Be that as it may, the fact is that the aforementioned check turned out to have no funds when consulted, which implies, of course, that the improper design existed—and the plaintiff should have presumed it—to obtain a source of income to pay what, under normal conditions, one was not economically capable of fulfilling. What has been stated so far leads us to reject the objection of point F) of the statement of grievances, that is, the clarification made regarding what the appellant stated in point 5 of his appeal, since on that occasion he admitted, without a doubt, regarding the overdrafts analyzed by the Lower Court, “...that for one reason or another they ceased to be paid or were not given under the normal conditions in which [Name2] used to do so...”. (see folio 138). In accordance with everything analyzed up to now, it is otiose to analyze the remaining grievances through which he alleges that verbal overdrafts were authorized and regulated; that he acted in accordance with the law and existing policies; that a guarantee always existed because, even if documentation was not signed, the overdraft constituted a guarantee, an enforceable instrument for collection purposes. Or, that the combination of powers and extensions were permitted, and that for this reason he did not circumvent the control and oversight of the Board of Directors or of Audit, since he merely applied, as a simple deputy manager, the existing regulations. Or also, regarding his assertion that the plaintiff, in his function, complied with all regulatory provisions. For these allegations are rendered useless and ineffective by all the foregoing. Consequently, the appeal cannot be upheld; given that the errors pointed out, in the judgment of this Chamber, did not occur. XI.- For the reasons given, it is possible to conclude that the dismissal of Mr. [Name7] is justified, since, given his high rank as Deputy Credit Manager, his extensive professional experience, and his technical duties, he was obliged to lead by example and proceed with strict adherence to the existing regulations and techniques governing banking activity, in accordance with the doctrine of Article 213 of the Ley General de Administración Pública. Quite to the contrary, the actions of Mr. [Name3] reveal a disregard for the regulations then in effect. Among others, but not exclusively, as stated, by exceeding his competence as Deputy Credit Manager, that is, his powers inherent to his position—not personal, individual, and independent ones (a serious defect, pursuant to Article 129 of the Ley General de la Administración Pública, subsidiarily applicable); approving overdrafts while another was pending in the same account; and accepting an inadvisable substitution of a guarantee; thereby putting the public patrimony he had been entrusted to safeguard at risk. The cited facts are—furthermore—contrary to the requirements of good faith, understood as loyalty, rectitude, and probity in the performance of the duties entrusted to the public servant, capable of constituting a serious offense that justifies dismissal without employer liability. It is inexcusable that having started working for the Bank on November 6, 1961, as a general services employee, and from there on having climbed various positions until reaching the post of Deputy Credit Manager in 1991, as he relates, he should have incurred the errors that were detailed. On the topic of offenses committed by bank officials, this Chamber has expressed: \"There exist, then, notable employer interests that require special legal protection, which can be observed from the angle of the general requirements due to the institutional and public nature of the Banks, and due to the type of activities they are engaged in, and lastly, the particular requirements due to the position held. The general requirements are very qualified duties that apply to all bank employees, even if they have not been expressly included in employment contracts or in regulations, but which are considered tacitly incorporated into the employment relationship by virtue of the state and public nature of our Banks and the mandate derived from the first paragraph of Article 19 of the Código de Trabajo, since the banking business requires economic security, seriousness, good reputation, and the other requisites necessary for its development. The particular requirements or duties must be related to the general ones, but find their main origin in the position held by the employee. Here the element of ‘trust’ takes on very significant importance in the evaluation of a bank employee's offenses, and particularly if the offense itself is related to the employee's specific obligations. Finally, the employee’s personal conditions and merits can act as ‘aggravating circumstances’ or as ‘mitigating circumstances’ (vote No. 114 of 14:00 hours on August 1, 1989). \"...in the case of offenses committed by bank officials or employees, one must proceed with greater circumspection in their evaluation, given that the prestige and image of the entity, in relation to third parties who use its services for the handling and custody of money and securities, is at stake. Due to the special and delicate nature of its function, the bank servant in general must be an honest, irreproachable, loyal, and fundamentally trustworthy worker; all of these being characteristics and obligations inherent to their employment contract - Article 19 of the Código de Trabajo-. The moment a servant of a Bank, whether state or private, all included within the concept of the Sistema Bancario Nacional, contravenes any of those obligations imposed by the contractual bond, for the benefit of a third party or to personally favor themselves, there is no doubt whatsoever that they cast doubt upon the internal structure and organization of the entity, thereby diminishing the good service they are obliged to provide, for the launching of programs or projects of collective benefit, insofar as they contribute to the improvement and economic reactivation of the country, with public or private funds, in the context of universal banking. Under these conditions, when the bank official attacks the internal structure of the Institution, breaking the legal framework in effect there that governs their conduct, they will act, in turn, contrary to the good faith, probity, loyalty, and trust that inspire their employment contract and, therefore, will make themselves deserving of the maximum sanction to be imposed, namely, their dismissal without employer liability. It is worth highlighting that the censurable conduct of the servant need not necessarily cause real and effective economic damage to the employer; it may even be potential, but it is nonetheless sanctionable, due to the deterioration of prestige it can cause to the Bank’s image, both internally and externally.\" (resolution No. 202 of 16:05 hours on July 3, 1996).\n\nWith regard to the faults committed by the bank employee, the Chamber has reiterated the criterion that it is sufficient to determine facts that reasonably cause a loss of confidence in the employee; such as serious negligence (conducta negligente grave) that endangers the employer's assets; so that the employer may justifiably terminate the relationship, as the employee's suitability to fulfill their obligations is thereby called into question. This type of official, by virtue of carrying out activities related to the handling of considerable sums of money, is obligated even more than any other worker to act in an extremely careful manner, exercising the greatest diligence in the performance of their duties; since, failing to do so, the interests of the banking entity, their employer, may be seriously affected, as occurred in the matter under consideration (see Rulings of this Chamber numbers 79, at 9:10 a.m., of August 17, 1988 and 40, at 9:50 a.m., of March 12, 1993). Consequently, their faults must be assessed with greater rigor, as a malfunction of the system can not only harm the entity from an economic standpoint, but can also affect its prestige and image in relation to third parties who use its services for the handling and custody of money and securities\" (Judgment No. 416 of 11:00 a.m. of July 27, 2001).\n\n**XII.-** The Chamber concludes, ultimately, that the appellant's objections that their dismissal is unjust, on the basis that they acted in accordance with the existing regulations, are not admissible. And consequently, that the acts for which the plaintiff was reproached, which in this case were considered proven and were classified as serious faults (faltas graves), as well as the sanction imposed, have full legal justification, and that the criticisms this party has been offering are nothing more than reproaches that do not have the virtue of erasing the faults committed. Consequently, the filed appeal must be rejected, and the contested judgment upheld.\"" }