338 Phil. 162
MENDOZA, J.:
Investigation reveals that on 21 January 1983 at about 9:00 o’clock in the evening, a team of military personnel raided the house of the respondent at No. 18 Murphy St., Pag-asa, Olongapo City. The raiding team were able to apprehend fifteen (15) persons inside the house of PAT. EDGAR GO to include his wife, Minda Go. Lieutenant Paterno Ding PC, the leader of the raiding team was able to confiscate the amount of One Thousand (P1,000.00) Pesos, assorted papelitos, ballpen and calculator used in the operation of Jai Alai Bookies.Petitioner was informed of his dismissal in a memo, dated December 20, 1983, by Lt. Col. Ferdinand A. Lagman, District Superintendent, INP of the Olongapo Metropolitan District Command.[2] He appealed to the Director General of the PC/INP, complaining of denial of due process. He claimed that no copy of the complaint with supporting affidavits had been served on him as required by NAPOLCOM Resolution No. 81-01; that he was simply ordered by radio to appear before the summary dismissal board for investigation; that he went to attend the hearing on May 9, 1983 but neither the complainant nor his witnesses were present and he was advised by the board’s chairman, a certain Colonel Cinco, to secure the services of a lawyer for the next hearing; that at the hearing on September 6 or 9, 1983, the members of the board and complainant and his witnesses were again absent; that the third hearing scheduled on September 21, 1983 was also postponed because of the absence of the members of the board; that although a hearing had allegedly been held on October 19, 1983, he was not able to attend it because he had not been previously notified; that he heard nothing more about the case until he was informed of the decision dismissing him, a copy of which was received by him only on February 20, 1984.
Investigation further reveals that another raid was conducted for the second time at the house of PAT. EDGAR GO. Major Jaime Garcia, Deputy Commander of Olongapo Metrodiscom Command in his written report to the Olongapo Metrodiscom Commander stated that on 16 June 1983 PAT. EDGAR GO, together with his brother, Lolito Go were both involved in Jai Alai Bookies which were being committed right at the house of the respondent. Witnesses like Rodolfo Ablaza and Rolando dela Fuente admitted that they were the collector of PAT. EDGAR GO and Lolito Go in the operation of Jai Alai Bookies.
It was further discovered during the investigation of the case that the first raid conducted on 21 January 1983, a criminal complaint was filed before the City Court of Olongapo City against the wife and brother of the respondent respectively. But PAT. EDGAR GO approached the Metropolitan Commander for a favor to dismiss the case against his wife and brother with the promise that the Jai Alai activities committed in his residence will be stop once and for all. The Fiscal later on dismissed the case for insufficiency of evidence for failure on the part of the raiding team to prosecute the case. Moreover, when the second raid was conducted it was proven that illegal Jai Alai activities was still going on in the residence of the respondent.
On the other hand, respondent inspite of several notices failed to appear before the board in order to refute the charges against him. The board in its desire to base the instant case with impartiality, objectivity and legality has to postpone the hearing of the case for several times, just to allow the respondent and his witnesses to appear before the Board, but all our efforts proved futile with the refusal of the respondent to appear before the Board in spite of all notices duly served to him by the [illegible] Metropolitan District Command. So, after four (4) months of several postponements, the Board proceeded with the hearing and considered the non-appearance of the respondent as a waiver on his part to present his evidence.
The Board after receiving both the written and oral evidences/testimonies, has concluded that it would be inconceivable for an ordinary man to believe that Pat. Edgar Go, a policeman at that, would not be able to know what is going on inside his own residence, as a matter of fact, he made a promise to the Olongapo Metrodiscom Commander that such illegal activities will never happened again and yet same was proven to be existing when the second raid was conducted. While it is true that on 16 June 1983 and 21 January 1983 complainant was in his official assignment, it was clearly established that PAT. EDGAR GO has the full knowledge on the existence of the illegal Jai Alai activities and even those apprehended during the first and the second raid implicated the respondent.
PD 1707 in relation to Memorandum agreement between NAPOLCOM and Director General, INP dated November 24, 1980 provides that a syndicate crime and tong collection are serious offenses against an INP members and is therefore within the jurisdiction of the dismissal authorities.
The fact that the Jai alai bookies were operating in the house being occupied by herein respondent-appellant, the apprehension of his wife and brother in two (2) successive raids effected by law-enforcement authority and his intercession for the dismissal of the case filed in consequence thereof, are tangible proofs that he was, indeed, an accessory - if not a principal - in said gambling operation.Hence, this petition for certiorari to set aside the decision of the NAPOLCOM.
As to the assertion of respondent-appellant that he was deprived of his right to due process, anchored on the allegation that he was not served any notice of hearing, it is belied by the records. On several occasions, the Summary Dismissal Board sent notices to herein respondent-appellant requiring him to appear and present evidence in his behalf, but he ignored said notices, prompting the Board to proceed with the investigation ex parte.
(1) The Hearing Officer or INP Director concerned shall furnish the respondent a copy of the complaint with all the sworn statements and other documents attached thereto with a notification that on the scheduled date of hearing, the respondent must submit sworn counter-statements and/or other evidence to disprove the charge, otherwise, the former shall forthwith recommend his summary removal based on the evidence on hand[5]The filing of charges and the allowance of reasonable opportunity to respondent to answer the charges constitute the minimum requirements of due process. Thus, in Government Service and Insurance System v. Court of Appeals,[7] §40 of P.D. No. 807, which similarly authorized the summary dismissals of civil service employees without formal investigation “when the charge is serious and the evidence of guilt is strong,” was construed by this Court to require the giving of notice of charges to a respondent and the right to answer. We said:
(2) Notification of Charges or Complaint; Order to Answer. - The respondent INP member shall be furnished with a copy of the complaint or charges against him and he shall answer said complaint within three (3) days from receipt thereof, enclosing therewith pertinent supporting documents or evidences in his behalf. If the respondent fails to answer the charges within the prescribed period, the Summary Dismissal Authority shall immediately conduct the investigation ex parte.[6]
We think it is time this Court firms up its position on the validity of Section 40 of the Civil Service Act. It is clear to us that what the opening sentence of Section 40 is saying is that an employee may be removed or dismissed even without formal investigation, in certain instances. It is equally clear to us that an employee must be informed of the charges preferred [sic] against him, and that the normal way by which the employee is so informed is by furnishing him with a copy of the charges made against him. This is a basic procedural requirement that a statute cannot dispense with and still remains consistent with the constitutional provision on due process. The second minimum requirement is that the employee charged with some misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter, that is to say, his defenses against the charges levelled again him and to present evidence in support of his defenses. The ordinary way by which a Civil Service employee is given this opportunity is by holding an investigation, in the course of which the employee may assert his defenses and present his supporting evidence. If Section 40 of the Civil Service Decree is to be saved from unconstitutionality, it cannot be interpreted or applied in such a manner as to deprive a respondent employee of these two (2) minimum rights. These are not the only indispensable requirements of procedural due process; they are, however, most directly involved in the matter of whether or not an investigation of charges against a civil service employee is essential.[8]The INP record of this case does not show that a formal complaint was ever filed against petitioner. Nor are there attached to such record supporting affidavits of witnesses, if any, against him. Neither the decision of the board, nor that of the Director General of the PC/INP denying reconsideration, nor the decision of the NAPOLCOM on appeal contains reference to any written complaint with supporting affidavits filed against petitioner.