EXP.
No. LAMBAYEQUE
03480-2010-PA/TC
VIDAL ROJAS BED
RESOLUTION OF THE CONSTITUTIONAL COURT
Lima, October 20, 2010
SEEN
The resource constitutional tort brought by Mr. Vidal Rojas bed against the decision issued by the Constitutional Law Division of the Superior Court of Justice of Lambayeque, on folio 55, dated August 9, 2010, which declared inadmissible in limine the request for defense, and ,
SERVING
1. That on May 18, 2010, the plaintiff brought claim for protection against the Provincial Municipality of Chiclayo, asking that it rescind the dismissal order was fraudulent and that, consequently, to order his reinstatement in the position of workers . He reports that he was improperly applied the Legislative Decree 276 at the time to dismiss him by Resolution No. 346-2010/MPCH/A Mayor, having reached the limit of 70 years of age, belonging to the labor of private activity and that this condition was recognized by Mayor's Resolution dated August 24, 2001, however after working in that state on August 1, 1999, as stated on your payslip.
2. That, in this case, considering the nature of the amparo proceedings for recovery is not possible to make pronouncements on the merits, in the case of certifying that the applicant belongs to the labor of private activity, since currently, according to the copy of your ID card, is 77 years old, and according to Article 21, third paragraph, the TUO of Legislative Decree 728, Law of Productivity and Competitiveness Act, approved by Supreme Decree No. 003-97-TR, retirement is mandatory and automatic in the event that the worker reaches age 70, unless otherwise agreed, which does not happen in this case.
3. That, on the other hand, considering that the Mayor's Resolution No. 346-2010/MPCH/A actor decides to dismiss the age limit under Article 34 of Legislative Decree 276 and Articles 182 and 186 of Supreme Decree 005-90-PCM, considering that municipal workers workers whose admission date is between February 1, 1984 to May 31, 2001 are subject to the labor of public activity and that, conversely, by Resolution of Hall No. 859-A-2001, the actor was incorporated as a permanent worker from 1 August 2001, the labor regime private activity, the Chartered estimates that, considering the restorative nature of the process under which in this case questions the validity of Resolution No. 346-2010/MPCH/A Hall, to determine which regime applicant must cease working, there is an alternative specific procedural, equally well, which is established with certainty whether the termination of public employment regime is legal or not should therefore be rejected the claim for protection under Article 5.2 and 9 of the Code of the Constitution.
For these reasons, the Constitutional Court with the authority under the Constitution Peru's
RESOLVED
dismiss the request.
published and notifíquese.
SS. BEAUMONT
Callirgos
ETO STREET CROSS Hayen
No. LAMBAYEQUE
03480-2010-PA/TC
VIDAL ROJAS BED
RESOLUTION OF THE CONSTITUTIONAL COURT
Lima, October 20, 2010
SEEN
The resource constitutional tort brought by Mr. Vidal Rojas bed against the decision issued by the Constitutional Law Division of the Superior Court of Justice of Lambayeque, on folio 55, dated August 9, 2010, which declared inadmissible in limine the request for defense, and ,
SERVING
1. That on May 18, 2010, the plaintiff brought claim for protection against the Provincial Municipality of Chiclayo, asking that it rescind the dismissal order was fraudulent and that, consequently, to order his reinstatement in the position of workers . He reports that he was improperly applied the Legislative Decree 276 at the time to dismiss him by Resolution No. 346-2010/MPCH/A Mayor, having reached the limit of 70 years of age, belonging to the labor of private activity and that this condition was recognized by Mayor's Resolution dated August 24, 2001, however after working in that state on August 1, 1999, as stated on your payslip.
2. That, in this case, considering the nature of the amparo proceedings for recovery is not possible to make pronouncements on the merits, in the case of certifying that the applicant belongs to the labor of private activity, since currently, according to the copy of your ID card, is 77 years old, and according to Article 21, third paragraph, the TUO of Legislative Decree 728, Law of Productivity and Competitiveness Act, approved by Supreme Decree No. 003-97-TR, retirement is mandatory and automatic in the event that the worker reaches age 70, unless otherwise agreed, which does not happen in this case.
3. That, on the other hand, considering that the Mayor's Resolution No. 346-2010/MPCH/A actor decides to dismiss the age limit under Article 34 of Legislative Decree 276 and Articles 182 and 186 of Supreme Decree 005-90-PCM, considering that municipal workers workers whose admission date is between February 1, 1984 to May 31, 2001 are subject to the labor of public activity and that, conversely, by Resolution of Hall No. 859-A-2001, the actor was incorporated as a permanent worker from 1 August 2001, the labor regime private activity, the Chartered estimates that, considering the restorative nature of the process under which in this case questions the validity of Resolution No. 346-2010/MPCH/A Hall, to determine which regime applicant must cease working, there is an alternative specific procedural, equally well, which is established with certainty whether the termination of public employment regime is legal or not should therefore be rejected the claim for protection under Article 5.2 and 9 of the Code of the Constitution.
For these reasons, the Constitutional Court with the authority under the Constitution Peru's
RESOLVED
dismiss the request.
published and notifíquese.
SS. BEAUMONT
Callirgos
ETO STREET CROSS Hayen
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