THIRD DIVISION

[G.R. No. 130442. April 6, 2000]

THE SUMMARY DISMISSAL BOARD AND THE REGIONAL APPELLATE BOARD, PNP, REGION VI, ILOILO CITY, petitioners, vs. C/INSP. LAZARO TORCITA, respondent.

D E C I S I O N

GONZAGA-REYES, J.:

Before us is a Petition for Review by way of Certiorari of the Decision of the Court of Appeals[1] in CA-G.R. SP No. 43872, which set aside the Decision of the Regional Director (RD) of the Philippine National Police (PNP) of Iloilo City, through its Summary Dismissal Board (SDB), suspending herein respondent C/Insp. Lazaro Torcita from the service for twenty (20) days for "Simple Irregularity in the Performance of Duty under Section 41 of R. A. 6975." Sdaad

The antecedents are as follows:

On July 6, 1994, the following verified complaints were filed against C/Insp. Lazaro Torcita, herein respondent, by Manuel Puey, Jesus Puey, Alex Edwin del Rosario:

1)......Administrative Case Nr. SDHB "B6" -94-01- for Conduct Unbecoming of a Police Officer filed by Jesus H. Puey in a complaint dated June 25, 1994;

2)......Admin. Case Nr. SDHB "B6"-94-02- for Grave Threats filed by Jesus H. Puey;

3)......Admin. Case Nr. SDHB "B6"-94-03 for Abuse of Authority and Illegal Search filed by Jesus H. Puey;

4)......Admin. Case Nr. SDHB "B6"-94-04 for Abuse of Authority and Violation of Domicile filed by Jesus H. Puey;

5)......Admin. Case Nr. SDHB "B6"-94-05 for Abuse of Authority and Violation of COMELEC Gun Ban filed by Jesus H. Puey;

6)......Admin. Case Nr. SDHB "B6" -94-06 for Conduct Unbecoming of a Police Officer filed by Manuel H. Puey;

7)......Admin. Case Nr. SDHB "B6" -94-07 for Illegal Search filed by Manuel H. Puey;

8)......Admin. Case Nr. SDHB "B6" -94-08 for Grave Abuse of Authority and Violation of Domicile filed by Manuel Puey;

9)......Admin. Case Nr. SDHB "B6" -94-09 for Abuse of Authority and Violation of COMELEC Gun Ban filed by Manuel Puey;

10)......Admin. Case Nr. SDHB "B6"-94-10 for Conduct Unbecoming of a Police Officer filed by Alex Edwin del Rosario;

11)......Admin. Case Nr. SDHB "B6"-94-11 for Abuse of Authority and Grave Threats filed by Alex Edwin del Rosario;

12)......Admin. Case Nr. SDHB "B6" 94-12 for Abuse of Authority and Violation of COMELEC Gun Ban filed by Alex Edwin del Rosario.

The twelve administrative complaints were the subject of administrative hearings before the Summary Dismissal Board of the PNP. At the pre-trial, the parties and their respective counsels agreed that the twelve cases shall be consolidated into one "major complaint" for "conduct unbecoming of a police officer" under Par. e, Sec. 3, Rule II, Memorandum Circular No. 92-006 pursuant to RA 6975[2]. The statement of the case by the Summary Dismissal Board is as follows:

"That sometime last April 26, 1994, after attending the birthday party of Miss Jessie Vasquez Alex Edwin del Rosario, together with Rosita Bistal, Carmen Braganza and Cristita Dawa boarded Mazda pick up with plate nr. HHP-808 and driven by Reynaldo Consejo, proceeded towards the direction of Cadiz City.

While nearing Crossing Cadiz in the vicinity of Sitio Puting Tubig, the aforementioned Mazda pick-up driven by Consejo overtook a red Cortina Ford driven by Major Lazaro Torcita; That on board the motor vehicle driven by Torcita were three females sitted at the back;

That Major Lazaro Torcita signaled the passengers of the Mazda pick-up to stop, however, the driver of the Mazda pick-up refused to abide by the signal and instead accelerated and proceeded to Hda. Aimee without stopping. Scsä daad

That upon reaching Hda. Aimee Major Lazaro Torcita, entered the compound and was approached by two persons in civilian clothes which prevented him from further proceeding; Moments after, the patrol car of Cadiz PNP arrived and together with Major Torcita, approached Jesus H. Puey and Alex Edwin del Rosario, inquiring as to the identity of the persons who accosted him;

The complainants alleged that Major Torcita approached and entered the compound of Hda. Aimee, very drunk, with back-up vehicle full of armed policemen, confronted Jesus H. Puey and Alex Edwin del Rosario as who stopped him at the gate, shouting in a very, very loud voice, invectives and remarks;

That such act of Major Lazaro Torcita constitute Conduct Unbecoming of an Officer not worth of respect;

In his answer, the respondent, Lazaro R. Torcita, while admitting that he entered the premises of the complainants, the same was done on a regular, lawful and proper way for he was in the performance of his official duties in pursuing the suspect who committed a crime in his presence;

From the affidavits of the witnesses and testimonies presented by the complainants and the counter affidavits and the counter testimonies of the respondent, the ISSUE before the Board is whether the respondent is guilty of Conduct Unbecoming of a Police Officer under Republic Act 6975 as implemented by Memorandum Circular 92-006 of the National Police Commission under Rule II Section 3, Paragraph C, committed thru a series of illegal acts consisting of Grave Threats, Illegal Search, Abuse of Authority, violation of Domicile and Violation of COMELEC Gun Ban."

The complainant presented documentary evidence and witnesses Congressman Manuel Puey, Rosita Bistal, Alex Edwin del Rosario and Reynaldo Consejo. Respondent Torcita testified in his behalf and presented Nehru Java, a member of the PNP Cadiz, who was with him during the incident in question.

The Summary Dismissal Board made the following findings of facts:

"That sometime last April 26, 1994, at about 10:30 in the evening, a red Cortina Ford, driven by C/Insp. Lazaro H. Torcita, with his aide, PO2 Nehru Java, in the front seat and his wife with two ladies at the backseat, were overtaken by a mazda pick-up, in the vicinity of Sitio Puting Tubig, about 10 kilometers from crossing Cadiz, owned by Congressman Manuel Puey and driven Reynaldo Consejo with four (4) passengers in the persons of Alex Edwin del Rosario, the executive assistant and financial analyst of Congressman Puey, three (3) helpers employed under the Congressman, namely, Rosita Bistal, Carmen Braganza and Cristina Dawa; SupÓ rema

That both parties came from the Municipality of Victorias where they attended some social functions on the occasion of the town fiesta;

After the mazda pick-up has overtaken the red Cortina Ford, it accelerated speed and proceeded to Hda. Aimee, a sugarcane plantation in Cadiz City, also owned by Congressman Manuel Puey; The red Cortina Ford followed also at high speed until it reached Hda. Aimee where C/Insp. Torcita and PO2 Java alighted and the confrontation with Alex Edwin del Rosario and Jesus Puey, occurred;

The Complainant tried to establish the fact that nothing unusual occurred or transpired between the parties in the vicinity of Sitio Puting Tubig and that Torcita has no business pursuing them; However the Board is more inclined to give credence to the affidavits (exhibit 5 & 6) and the testimony of C/Insp. Torcita that a vehicular collision almost took place due to reckless driving of the driver of the mazda pick-up;

That it was the duty inherent to the position as Chief of Police of Cadiz City and as deputy of the Land Transportation Office to enforce traffic rules and regulation to prevent chaos and accidents in roads and highways of the country (exhibit 13); This observation is further bolstered by the testimony of Reynaldo Consejo, the driver of the mazda pick-up, that he was able to overtake the red Cortina Ford only after the latter car hit the shoulder of the road and after overtaking he increased his speed (tsn page 131, August 30, 1994 );

This sudden increase in speed of a driver involved in a vehicular accident is a classic move for one who wants a fast get away from the scene, to escape responsibility;

Further, Alex Edwin del Rosario testified that upon reaching Hda. Aimee, he instructed the guard to be on look-out for a car might be following them and might enter the compound (TSN page 70 August 30, 1994 ). This conduct would show that witness is anticipating that red Cortina Ford would follow them because of the incident in Sitio Puting Tubig which could have ended in a vehicular collision and finally no proof was presented to show that no other reason exist as to why C/Insp. Torcita would pursue the Mazda pick up other than near occurrence of a vehicular collision; Jurisä

The Complainant presented the Joint-Affidavit of Rosita Bistal and Reynaldo Consejo and the Affidavit of Alex Edwin del Rosario, jointly taken, may be considered as proof that C/Insp. Torcita has committed act or series of acts that would constitute Grave Threat, Illegal Search, Abuse of Authority, Violation of Domicile and Violation of COMELEC Resolutions regarding the gun ban, thus CONDUCT UNBECOMING OF A POLICE OFFICER;

That in the Joint-Affidavit of Rosita Bistal and Reynaldo Consejo (exhibit c; exhibit 2), Bistal attempted to establish the fact that C/Insp. Torcita and PO2 Java illegally entered the gate of the compound but were stopped by the guards armed with cane stick or batuta, however in her testimony given during the hearing (tsn page 32, August 30, 1994) she stated that she did not know what transpired between the two men approaching and the guards near the gate because she, together with her companions, were busy unloading kitchen utensil from the pick-up to the kitchen and Consejo categorically stated that this portion of their affidavit, specifically paragraph 7, is NOT TRUE; Alex Edwin del Rosario, in his testimony given in the hearing, corroborated this fact that he also did not see or hear what happened for he was in some distance away and he cannot see them clearly (TSN page 73, August 30, 1994 );

The only piece of evidence presented in connection with the incident which happened near the gate of the compound is the affidavit of C/Insp. Torcita and his testimony given in the hearing of the case that when he was walking towards the compound together with his aide, PO2 Nehru Java, two armed civilian guards stopped and threatened him; He identified himself however, the same had no effect, and PO2 Java whispered that there are armed men around them and that it is dangerous for them to continue. That at this point, they radioed for back-up; Since no proof to the contrary was presented by the Complainant nor was there any witness or witnesses presented to rebut this allegations, the Board had no other choice except to consider these allegations as proof; (Exhibit 5 & 6); The Board also resolve to take note that a metropolitan newspaper with nationwide circulation and with unquestionable credential, had published a news item about the presence of armed security personnel of Congressman Manuel Puey exhibit 14); This evidence give more credence to the fact that there were really armed men in the premises where the aforementioned incident happened; That this is corroborated further by the affidavit of PO2 Nehru Java (exhibit 17); Scä juris

This observation of the Board that there were really armed men in the premises of Hda. Aimee, is further enhance by the fact that Major Torcita felt their presence when he desisted from further entering the compound, a feeling which was developed and nurtured by years of living under combat conditions and finally the Board also feels that the presence of armed persons in the offices and properties of high government officials is accepted as a necessary consequence for their protection due to the greater risks they are expose to;

That because of the incident in Sitio Puting Tubig which was further aggravated by the confrontation near the gate of the compound of Hda. Aimee, C/Insp. Torcita upon the arrival of the back-up force of PNP Cadiz City, proceeded to the place where Capt. Jesus Puey and Alex Edwin del Rosario were; This fact is not disputed by the parties;

xxx......xxx......xxx

Chief Insp. Lazaro Torcita does not deny having taken alcoholic drink; However, not to the point of drunkness; The Board is more inclined to believe this allegation for no sane person will risks the life of a member of his family by deliberately driving when he is mentally and physically incapable; Further, C/Insp. Torcita was able to drive from Victorias to Cadiz City, a distance of forty kilometers, on a dark night and raining and was able to avoid collision of the vehicles involved by sheer reflex action despite the admitted fact that his tire hit the shoulder of the road;

Further, at the time Chief Inspector Torcita entered the compound he was fully aware of the presence of armed men and reacted to this by exercising prudence while approaching the compound of Hda. Aimee; The foregoing facts would show that C/Insp. Torcita was in full command of his senses and was not affected by the numbing effect of alcohol for a drunk person does not show any caution and behaves irrationaly."

The Board did not find sufficient evidence to establish that Torcita threatened anybody with a gun, nor that a serious confrontation took place between the parties. The Board also found that there was no sufficient evidence that the urinating incident took place, and held that the charges of violation of domicile and illegal search were not proven. The Board found that Lazaro Torcita was "in the performance of his official duties when the incident happened; however, he committed a breach of internal discipline by taking alcoholic drinks while in the performance of same. The dispositive portion of the decision of the Board reads: Jurisä sc

"WHEREFORE, in view of the foregoing, the Complaint for CONDUCT UNBECOMING OF A POLICE OFFICER under Memo Cir. Nr. 92-006 pursuant to Sec. 42, RA 6975, be DISMISSED for lack of sufficient evidence, however finds C/Insp. Lazaro R. Torcita to have committed SIMPLE IRREGULARITY IN THE PERFORMANCE OF DUTY under Sec. 41, RA 6975, in relation to NAPOLCOM Memo Cir. Nr. 91-002 and is hereby ORDERED SUSPENDED for twenty days (20) and forfeiture of salary for the same period of time effective upon receipt of this Decision under Rule 7, Section 2, Sub-par. b of the same Memo Circular."

Torcita appealed his conviction to the Regional Appellate Board of the PNP, Region VI, Iloilo City, but the appeal was dismissed for lack of jurisdiction; Thus,

"Under the applicable provisions of Section 45 of R. A. 6975, however, the disciplinary action imposed by the Regional Director upon a PNP member shall be final and executory except those involving demotion in rank or dismissal from the service. The appealed decision being that of suspension from the service with corresponding forfeiture of pay only the same is not subject to review by this Board."[3]

Whereupon, C/Insp. Torcita filed a petition for certiorari in the regional trial court of Iloilo City, Branch 31, questioning the legality of the conviction of an offense for which he was not charged, "which conviction is a nullity because of the lack of procedural due process of law."

Public respondent filed a motion to dismiss, which was denied. The regional trial court granted the petition for certiorari and annulled the dispositive portion of the questioned decision insofar as it found Torcita guilty of simple irregularity in the performance of duty. MisjÓ uris

Public respondent appealed from the above-mentioned decision of the regional trial court, by petition of review to the Court of Appeals, which affirmed the same for the reason that the respondent could not have been guilty of irregularity considering that "the twelve (12) cases treated as Conduct Unbecoming of a Police Officer were eventually dismissed."

The instant petition for review on certiorari under Rule 45 seeks the reversal of the aforesaid decision of the Court of Appeals on the following grounds:

"1.......THE OFFENSE OF "SIMPLE IRREGULARITY IN THE PERFORMANCE OF DUTY" IS NECESSARILY INCLUDED IN THE CHARGE OF "CONDUCT UNBECOMING OF A POLICE OFFICER."

2.......THE DECISION OF THE SUMMARY DISMISSAL BOARD (SDB) AND THE NAPOLCOM REGIONAL APPELLATE BOARD HAS BECOME FINAL AND EXECUTORY."[4]

The petitioners submit that the offense of "Conduct Unbecoming of a Police Officer" is broad enough to include any act of an officer which tends to bring dishonor and disgrace to the PNP organization, and Simple Irregularity in the Performance of Duty is one act which brings such disgrace and dishonor as contemplated by law. Moreover, the dismissal has become final and executory and the trial court erred when it proceeded with the petition in violation of the doctrine of primary jurisdiction.

In his comment, respondent Torcita insists that his right to due process of law was "corrosively abridged and impaired", and pleads for an affirmance of the decision of the Court of Appeals.

The appeal has no merit. The Court of Appeals did not err in affirming the decision of the trial court granting the petition for certiorari.

The administrative disciplinary machinery for dealing with complaints or charges against any member of the Philippine National Police (PNP) is laid down in Republic Act No. 6975, otherwise known as the "Department of the Interior and Local Government Act of 1990." This law defines the summary dismissal powers of the PNP Chief and Regional Directors, among others in cases, "where the respondent is guilty of conduct unbecoming of a police officer."[5] Memorandum Circular No. 92-006 prescribes the "Rules and Regulations in the conduct of summary dismissal proceedings against erring PNP members" and defines conduct unbecoming of a police officer under Section 3 (c), Rule II, as follows:

"Conduct unbecoming of a police officer" refers to any behavior or action of a PNP member, irrespective of rank, done in his official capacity, which, in dishonoring or otherwise disgracing himself as a PNP member, seriously compromise his character and standing as a gentleman in such a manner as to indicate his vitiated or corrupt state of moral character; it may also refer to acts or behavior of any PNP member in an unofficial or private capacity which, in dishonoring or disgracing himself personally as a gentleman, seriously compromises his position as a PNP member and exhibits himself as morally unworthy to remain as a member of the organization." NewÓ miso

On the other hand, the acts constituting "simple irregularity in the performance of duty" are defined in Memorandum Circular No. 91-002. It is a light offense, incurred, among others, by a member of the PNP who shall, among others, be found to "have the odor or smell of alcohol on his breath while on duty, or possess alcoholic beverages on his person, police vehicle, post or office." (Sec. 2.A, Rule VI)

As above-stated, the Summary Dismissal Board absolved the C/Insp. Torcita of the consolidated charge of "conduct unbecoming of a police officer" but found him guilty of simple irregularity in the performance of duty under Sec. 41, R.A. No. 6975, in relation to Napolcom Memorandum Circular No. 91-002 and imposed a penalty of suspension for twenty (20) days and forfeiture of salary for the same period.

We are unable to sustain the theory of the petitioners that the definition of "conduct unbecoming of a police officer" as earlier granted, is broad enough to include any act of an officer which tends to bring dishonor and disgrace to the PNP organization, and that there is "no legal prohibition" which would prevent the Summary Dismissal Board from finding petitioner guilty of the lesser offense. While the definition of the more serious offense is broad, and almost all- encompassing a finding of guilt for an offense, no matter how light, for which one is not properly charged and tried cannot be countenanced without violating the rudimentary requirements of due process.

The series of twelve complaints filed against C/Insp. Torcita were solely based on the incident that occurred on April 26, 1994 at about 11:00 o'clock in the evening, wherein Torcita, who was off-duty and was in civilian clothes, riding in his private vehicle with members of his family, chased another vehicle which overtook his car in a reckless manner and in violation of the Traffic Code; the hot pursuit ended at the Hacienda Aimee, where he allegedly entered the place without lawful warrant and while inside, belligerently shouted invectives, challenging everyone to a fight, pointed his gun at somebody and urinated in full view of the persons therein. The Dismissal Board found the above charges unsubstantiated and held that Torcita was in the performance of official duty when the incidents happened. "However, he committed breach of internal discipline by taking alcoholic drinks while in the performance of same."

It is glaringly apparent from a reading of the titles of the twelve administrative cases filed against C/Insp. Torcita, earlier quoted, that none of the charges or offenses mentioned or made reference to the specific act of being drunk while in the performance of official duty. The records do not bear out the specific acts or conduct constituting the charge/offense in the twelve cases which were consolidated at the pre-hearing conference into a single case of "Conduct Unbecoming of a Police Officer." Thus, the Board defined the issue before the Board as "whether the respondent is guilty of conduct unbecoming of a police officer under Republic Act 6975, as implemented by Memorandum Circular No. 92-006 of the National Police Commission under Rule II, Section 3, Paragraph c, committed though a series of illegal acts consisting of grave threats, illegal search, abuse of authority, violation of domicile or violation of Comelec Gunban." Notably, there is no indication or warning at all in the summary dismissal proceedings that C/Insp. Torcita was also being charged with breach of internal discipline consisting of taking alcoholic drinks while in the performance of his duties. Acctä mis

The omission is fatal to the validity of the judgment finding him guilty of the offense for which he was not notified nor charged. Summary dismissal proceedings are governed by specific requirements of notification of the charges together with copies of affidavits and other attachments supporting the complaints, and the filing of an answer, together with supporting documents. It is true that consistent with its summary nature, the duration of the hearing is limited, and the manner of conducting the hearing is summary, in that sworn statements may take the place of oral testimonies of witnesses, cross-examination is confined only to material and relevant matters, and prolonged arguments and dilatory proceedings shall not be entertained. (Section 4, Memorandum Circular No. 92-006). However, notification of the charges contemplates that respondent be informed of the specific charges against him. Torcita was entitled to know that he was being charged with being drunk while in the performance of duty, so that he could traverse the accusation squarely and adduce evidence in his defense. Although he was given an opportunity to be heard on the multiple and broad charges initially filed against him, the absence of specification of the offense for which he was eventually found guilty is not a proper observance of due process. There can be no short-cut to the legal process (Alonte vs. Savellano Jr., 287 SCRA 245).

It is a requirement of due process that the parties be informed of how the litigation was decided with an explanation of the factual and legal reasons that led to the conclusions of the Court (ABD Overseas Manpower Corp. vs. NLRC, 286 SCRA 454 ). Memorandum Circular No. 92-006 specifically prescribes that the decision shall contain "a brief statement of the material facts and the findings of the summary dismissal authority as well as the disposition thereof" (Sec. 6). The cursory conclusion of the Dismissal Board that Torcita "committed breach of internal discipline by taking drinks while in the performance of same" should have been substantiated by factual findings referring to this particular offense. As it turned out, the dismissal Board believed his allegation that he was not drunk and found that he was in full command of his senses where he tried to apprehend the driver of the maroon Mazda pick-up. Although Torcita did not deny that he had taken a shot of alcoholic drink at the party which he attended before the incident, the records show that he was then off-duty and the party was at the Municipality of Victorias, which was outside of his area of police jurisdiction. On the other hand, the hot pursuit incident occurred while he was on in his way home to Cadiz City with the members of his family. As observed by the Dismissal Board itself, the hot pursuit was motivated by the duty "inherent to the position as Chief of Police of Cadiz City and as Deputy of the Land Transportation Office to enforce traffic rules and regulations, to prevent chaos and accidents in roads and highways" (Decision, p. 76). The Court of Appeals correctly pointed out that even if he was prosecuted for irregular performance of duty, he could not have been found to have the odor or smell of alcohol while in the performance of duty because he was not on duty at the time that he had a taste of liquor; he was on a private trip fetching his wife.

Premises considered, we hold that the Court of Appeals correctly found that the decision of the petitioners Board was rendered without or in excess of jurisdiction, as respondent Torcita was found guilty of an offense for which he was not properly charged. A decision is void for lack of due process if, as a result, a party is deprived of the opportunity of being heard (Palu-ay vs. CA, 293 SCRA 358). A void judgment never acquires finality (Heirs of Mayor Nemencio Galvez vs. CA 255 SCRA 672; Fortich vs. Corona, 298 SCRA 678). Hence, aforementioned decision cannot be deemed to have become final and executory. Misä act

WHEREFORE, the assailed decision dated September l, 1997 of the Court of Appeals is AFFIRMED and the instant petition is DISMISSED.

SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.

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[1] Seventeenth Division, composed of Associate Justices Angelina-Sandoval-Gutierrez as Chairman, Bernardo LL. Salas, (ponente), and Omar U. Amin; Rollo, 31-47.

[2] "An Act Establishing the Philippine National Police under a Reorganized Department of the Interior and Local Government, and for other purposes" otherwise known as the "Department of Interior and Local Government Act of 1990".

[3] Order dated January 16, 1995.

[4] Rollo, p. 15.

[5] "Sec. 42. Summary Dismissal Powers of the PNP Chief and Regional Directors. The Chief of the PNP and regional directors, after due notice and summary hearings, may immediately remove or dismiss any respondent PNP member in any of the following cases: Jjä lex

a.......When the charge is serious and the evidence of guilt is strong;

b.......When the respondent is a recidivist or has been repeatedly charged and there are reasonable grounds to believe that he is guilty of the charges; and

c.......When the respondent is guilty of conduct unbecoming of a police officer."