Republic of the Philippines

COURT OF APPEALS
Manila

DEXTER P. DIVAD, CA-CV G.R. NO. ________________

Petitioner,
-for-
-versus-
GRAVE MISCONDUCT

POLICE REGIONAL OFFICE O2, thru

the REGIONAL POLICE DIRECTOR,
Respondent.
x - - - - - - - - - - - - - - - - - - - x

PETITION FOR REVIEW

COMES NOW the petitioner, by himself, and unto this Honorable

Court most respectfully states:

NATURE OF THE PLEADING

This is a petition for review that seeks to nullify and set aside the
Decision dated January 9, 2013 and the Resolution dated May 7, 2013 of
the Honorable Civil Service Commission (CSC) affirming the Decision
dated August 31, 2011 of the Honorable Secretary of Justice of the
Department of Interior and Local Government (DILG) which affirmed the
Decision dated February 24, 2011 of the Regional Appellate Board (RAB)
affirming the Decision dated August 26, 2010 of respondent Regional
Director of the Philippine National Police, Regional Office 02, Tuguegarao
City, Cagayan finding the petitioner guilty of grave misconduct and
sentenced him the maximum penalty of dismissal from service.

ATTACHMENTS

The annexes attached to petitioners Motion for Extension of Time to

Submit Petition for Review which he filed last June 4, 2013 before this
Honorable Court are hereby adopted in toto and made integral part of this
petition.

STATEMENT OF THE CASE

 The instant appealed case stemmed from the Joint Affidavit of PI
Gerry D. Roque, PI Harvey B. Pajarillo, SPO4 Apolinario Mingaracal and
PO3 Leonard Tallod dated March 20, 2009 of the Solano Police Station,
Solano, Nueva Vizcaya and Joint Affidavit of Chresente H. Da-ang and
Jumila Ut-utan dated 18 March 2009.

As shown in the Pre-Charge Evaluation Report dated April 20, 2009,

the incident was investigated by the PNP Nueva Vizcaya Provincial
Internal Affairs Service and after finding probable cause on the complaint
against the petitioner for Grave Misconduct (Illegal Discharge of Firearm
and Conduct Unbecoming of a Police Officer) the case was recommended
for summary hearing to the Regional Internal Affairs Service 02 in
Tuguegarao City, Cagayan.

The petitioner was formally charged of Grave Misconduct, docketed

as Administrative Case No. IAS Br. 09-18 on 28 April 2009.

A pre-hearing conference was conducted on September 22, 2009

without the petitioner being assisted by a counsel and after the parties
marked their exhibits, he requested for trial but due to the objection of the
prosecution, the hearing officer denied it by terminating the conference and
directed the parties to submit their position papers.

On 23 October 2009, the petitioner was forced to submit his

position paper despite his appeal to have a full blown trial to confront the
witnesses.

On 26 August 2010, the respondent rendered his Decision finding the

petitioner guilty of grave misconduct and sentenced him the maximum
penalty of dismissal from service. Specifically, the dispositive portion of
the decision reads:

WHEREFORE PREMISES CONSIDERED, the Disciplinary

Authority finds the herein respondent SPO1 Dexter P Divad PNP
guilty and meted the penalty of DISMISSAL from the police
service pursuant to NAPOLCOM MEMORANDUM Circular
Number 2007-001.

The petitioner received the Decision on August 30, 2011 and

appealed the same by filing an Appeal-Memorandum on September 9,
2010. Despite the pendency of his appeal, the petitioner received from the
respondent Special Order No. 402 dismissing him from service on
September 16, 2010. The petitioner filed a Manifestation in Extreme
Urgency With Motion dated September 23, 2010 requesting the RAB to
recall Special Order No. 1102 citing among other reasons, the pendency of
his appeal and the absence of finality of the assailed decision.

However, the RAB failed to act on the motion. In its letter dated
September 20, 2010 which was received by the petitioner t on September
29, 2010, the latter was directed to submit his Letter of Appeal, Notice of
Appeal, Memorandum on Appeal and payment of Appeal fees within ten
(10) days from receipt. Notwithstanding his submission of his Appeal-
Memorandum, the petitioner personally submitted his Notice of Appeal and
paid the corresponding appeal fees.

On March 7, 2011, the petitioner received the Decision dated

February 24, 2011 of the RAB denying his appeal, the dispositive portion
reads:

From the foregoing, and as when the prosecution was able to

adduce relevant evidence which a reasonable mind might accept
as adequate to justify the conclusion that appellant committed the
acts imputed of him, we find no cogent reason to reverse and set
aside the assailed Decision.

WHEREFORE, the instant appeal is hereby DENIED.

Felt aggrieved by the decision of the RAB, the petitioner seasonably

filed his Appeal Memorandum dated March 15, 2011 before the Office of
the Honorable Secretary of the DILG. The latter in his Decision dated
August 31, 2011, denied petitioners appeal for lack of merit and affirmed
the decision of the RAB. Undaunted, petitioner seasonably filed a Motion
for Reconsideration dated October 13, 2011, but the same was denied by
the Honorable Secretary of the DILG in his Resolution dated January 30,
2012, a copy of which was received by petitioner last 1 March, 2012.

As a recourse, petitioner appealed the decision of the Honorable

Secretary of the DILG before the Honorable Civil Service Commission
(CSC). On January 9, 2013, the Honorable Commission rendered its
Decision, a copy of which was received by petitioner on January 24, 2013.
Petitioner filed a Motion for Reconsideration assailing the said decision but
the same was dismissed by the Honorable Commission in its Resolution,
dated May 7, 2013, a copy of which was received by petitioner on May 17,
2013.

Under the rules, petitioner had until June 2, 2013 to file a Petition for
Review before this Honorable Court but considering the said date fell on a
Saturday, he had until June 4, 2013. Unfortunately, petitioner could not file
his petition on June 4, 2013 as it needed ample time to prepare his
documents in support of this petition and to secure the services of a
counsel, among other reasons. On said date, he filed a Motion for
Extension of Time to Submit Petition for Review before this Honorable
Court requesting an additional period of fifteen (15) days to file the same.

This petition is thus timely filed.

STATEMENT OF FACTS

Briefly stated, the following are the factual antecedents of the case:
 On 16 March, 2009, at around 10:00 oclock in the evening, the
petitioner, together with Jeff Galam, went to Brgy. Quirino, Solano, Nueva
Vizcaya to visit Eddie Jasmin, a fellow police officer, but the latter was not
home.

The duo then proceeded at the nearby Sounds and Roses KTV Bar
and ordered bottles of beer. Suddenly, a commotion arose outside the
establishment and a gunshot was heard. Instinctively, and as a call of duty,
the petitioner took his service firearm from his car and interviewed some of
the bystanders converging outside and he was informed that a certain Jay-
R had fired a gun. One Gerald Santiago Guiab, a Security Guard, also
revealed to the petitioner that he was slapped by the same person.

Moment later, a mobile patrol of the Solano Police Station arrived

and the petitioner immediately approached the responding policemen to
inform them about the incident. But to his surprise, Police Inspectors Gerry
Roque and Harvey Pajarillo accused him of having fired a gun and created
trouble.

At this juncture, the petitioner invited Gerald Guiab and appealed to

Police Inspectors Roque and Pajarillo to sort out things at the Solano Police
Station because people around were already converging at the scene.

After the group arrived at the police station, the petitioner asked
Gerald Guiab to blotter what really transpired but Police Inspector Roque
coached him to tell the investigator that it was the petitioner who slapped
him and that he fired his gun. The petitioner protested but Inspector Roque
yelled at him. Sensing that he was being singled out and that no amount of
explanation could convince his superiors about his innocence, he left the
station with his friend.

On the following day, the petitioner was informed that he was a

subject of spot report of the Solano Police Station where he allegedly
created trouble and fired his gun and that his friend slapped a security
guard at the Sounds and Roses KTV Bar. He immediately proceeded to the
police station and surrendered his service firearm to show that he was
innocent of the charges.

ASSIGNMENT OF ERRORS

THE HONORABLE CIVIL SERVICE COMMISSION GRAVELY

ERRED IN AFFIRMING THE DECISION, DATED FEBRUARY 24,
2011 OF THE HONORABLE SECRETARY OF THE DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT (DILG) WHICH AFFIRMED
THE DECISION DATED 24 FEBRUARY, 2011 OF THE REGIONAL
APPELLATE BOARD (RAB) WHICH ALSO AFFIRMED THE
DECISION DATED 26 AUGUST, 2010 OF THE REGIONAL
DIRECTOR, REGIONAL OFFICE 02 OF THE PHILIPPINE NATIONAL
POLICE (PNP) DISMISSING THE PETITIONER FROM POLICE
SERVICE.

DISCUSSIONS AND ARGUMENTS

THE HONORABLE CIVIL SERVICE COMMISSION GRAVELLY

ERRED IN AFFIRMING THE DECISION, DATED FEBRUARY 24,
2011 OF THE HONORABLE SECRETARY OF THE DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT (DILG) WHICH AFFIRMED
THE DECISION DATED 24 FEBRUARY, 2011 OF THE REGIONAL
APPELLATE BOARD (RAB) WHICH ALSO AFFIRMED THE
DECISION DATED 26 AUGUST, 2010 OF THE REGIONAL
DIRECTOR, REGIONAL OFFICE 02 OF THE PHILIPPINE NATIONAL
POLICE (PNP) DISMISSING THE PETITIONER FROM POLICE
SERVICE.

The respondent PNP Regional Director gravely erred in dismissing

the petitioner on the basis of the affidavits of PI Gerry D. Roque, PI Harvey
B. Pajarillo, SPO4 Apolinario Mingaracal and PO3 Leonard Tallod dated
March 20, 2009 of the Solano Police Station, Solano, Nueva Vizcaya and
Joint Affidavit of Chresente H. Da-ang and Jumila Ut-utan dated 18 March
2009 considering that these affiants were never presented to testify before
the Hearing Officer of the PNP Regional Internal Affairs Service to testify.
Since petitioner failed to cross-examine them, their affidavits remain
hearsay and cannot be given probative value.

On the other hand, the RAB also erred in denying petitioners appeal
of the decision rendered by the respondent PNP Regional Director. The
RAB ruled that petitioners appeal was filed out of time citing Rule 20 of
Memorandum Circular 2007-001, thusly:

Section 1. How appeal is taken ; time of filing. Appeals from the

decision of the disciplining authority, Regional Appellate Board,
National Appellate Board or recommendation of IAS which ripened
into a decision due to inaction by the disciplinary authority, shall be
taken by the party adversely affected by filing the notice of appeal
and furnishing copy thereof to the party and the appellate body, with
the deciding authority within ten (10) days from receipt of a copy of
the decision.

Section 2. Notice of Appeal and Memorandum of Appeal.-

.
(a) A Notice of Appeal shall be filed in three (3) legible copies
which contain the following: 1) the material date showing that it
was filed on time; 2) the assignment of specific errors of fact or
law or both, allegedly committed by the disciplinary authority;
3) the specific appellate body to which the appeal is being taken.

The appellant shall submit a Memorandum on Appeal in three (3)

legible copies not later than fifteen (15) days from the filing of
 the notice of appeal, copy furnished the other party. However, the
memorandum on appeal may be submitted upon filing the
notice of appeal. Proof that copy of the memorandum was served
to the other party must be submitted by the appellant.

The RAB, in its assailed decision, argued that petitioner failed to

comply with the foregoing rules citing among others that in order to perfect
an appeal, a notice of appeal and a memorandum of appeal must be
submitted on time and in the manner set forth by law.

The argument of the RAB is not in accord with the rules because the
second paragraph of Section 2 (a) allows the simultaneous submission of
an appeal and memorandum. The petitioner received the assailed decision
of the respondent on 30 August, 2010 and on 9 September, 2010, or within
the ten (10) day period set forth by Section 1 of the rules, he filed his
Appeal-Memorandum to the RAB by registered mail per Registry Receipt
No. 4945, copy furnished the respondent and the Regional Internal Affairs
Service 02, per Registry Receipt Nos. 4943 and 4944, respectively, both
dated 9 September, 2010.

If indeed the simultaneous submission of the petitioners Appeal-

Memorandum was erroneous, then why did it send a letter dated 20
September 2010 which was received by the petitioner on 29 September
2010, directing him to submit his Letter of Appeal, Notice of Appeal,
Memorandum on Appeal and payment of Appeal fee within ten (10) days
from receipt without telling him that his pleading was erroneous?
Admittedly, the RAB received the Appeal-Memorandum but it did not rule
on it despite the petitioners explanation that it constituted his notice of
appeal and memorandum but at any rate, he still filed personally his Notice
of Appeal, except the memorandum since he had already submitted it to the
RAB. And then all of a sudden, the RAB claimed that the petitioners
appeal was filed out of time.

It must be emphasized that the petitioner has been diligently

following up his case in Tuguegarao City. The expenses he incurred
coupled with its distance as his travel took him almost six (6) hours from
Solano, Nueva Vizcaya to Tuguegarao City was simply unbearable
especially in the light that he has no other livelihood other than his
employment as a police officer to support his family as sole bread winner.
The strict application of the rules applies only when a party causes delay in
the speedy resolution of a case. Such has not been the case here as shown
by the petitioners diligence in following up his case in Tuguegarao City.

All told, the strict application of the rules by the RAB is unwarranted
and does not sit well with Section 3 of the Memorandum Circular that calls
for the liberal construction of the rules. The petitioner thus humbly
implores and begs the compassion of this Honorable Court to please relax
the rules by taking into consideration that the unholy dismissal of the
petitioner from service has deprived his family his support. No less than
the Supreme Court, in the exercise of its equity jurisdiction, had on several
occasions, abhorred the rigid application of the rules to meet the ends of
justice.

Administrative rules of procedure are generally given liberal

construction. This is due to the fact that administrative
proceedings are generally summary in nature. Suffice it to say
that technical rules of procedure are liberally applied in
administrative agencies exercising quasi-judicial functions.
(citing Dela Cruz v. DECS, G.R. 146739, 16 January 2004).

Rules of Procedure should be viewed as mere tools designed to

facilitate the attainment of justice. (Ginete v. CA, 296 SCRA 38).
When strong considerations of substantive justice are manifest in
the petition, the application of the rules of procedure may be
relaxed, in the exercise of its equity jurisdiction. (citing Al-
Amanah Bank v. Celebrity Travel Tours, 436 SCRA 356)

THE SPECIAL ORDER DATED 16 SEPTEMBER 2010 OF THE

APPELLEE DISMISSING THE PETITIONER FROM POLICE SERVICE
WAS AN ULTRA VIRES ACT.

The respondent PNP Regional Director had acted with grave abuse
of discretion amounting to lack or excess of jurisdiction in dismissing the
petitioner despite the pendency of his appeal pursuant to Section 45 of
Republic Act No. 6975, otherwise known as the DILG Act of 1990 which
provides:

SEC. 45. Finality of Disciplinary Action. The disciplinary

action imposed upon a member of the PNP shall be final and
executory: Provided, That a disciplinary action imposed by the
Regional Director or by the PLEB involving demotion or
dismissal from the service may be appealed to the Regional
Appellate Board within ten (10) days from receipt of the copy
of the notice of decision: provided, further, That the
disciplinary action imposed by the Chief PNP involving
demotion or dismissal may be appealed to the National
Appellate Board, as the case may be, shall decide the appeal
within sixty (60) days from receipt of the notice of appeal:
Provided, furthermore, That, the Regional or National
Appellate Board, as the case may be, shall decide the appeal
within sixty (60) days from receipt of the notice of appeal:
Provided, finally, That the failure of the Regional Appellate
Board to act on the appeal within said period shall render the
decision final and executory without prejudice, however, to the
filing of an appeal by either party with the secretary. (also
cited in PO2 Montoya vs. Police Director Reynaldo P. Varilla,
et. al., G.R. No. 180146, dated December 18, 2008)

The same provision was also adopted in Section 22, Rule 15 of the
NAPOLCOM Memorandum Circular No. 2007-001, thusly:
 Section 22. Finality of Decision The disciplinary action
imposed upon a member of the PNP shall be final and
executory: Provided, that a disciplinary action imposed by the
Regional Director or by the PLEB involving demotion or
dismissal from service may be appealed to the Regional
Appellate Board within ten (10) days from receipt of the notice
or decision. x x x x .

The assailed decision has not attained its finality due to the pendency
of the petitioners appeal before the RAB which was seasonably filed on
September 9, 2010 or within the reglamentary period of ten (10) days after
he received said decision last August 30, 2010. The filing of his appeal had
ipso facto divested the respondent of its authority to dismiss him and thus
the issuance of Special Order No. 1102 dated September 16, 2010 was an
ultra vires act.

THE PETITIONER WAS DENIED OF HIS RIGHTS, BOTH

SUBSTANTIVE AND PROCEDURAL, DURING THE SUMMARY
HEARING CONDUCTED BY THE REGIONAL INTERNAL AFFAIRS
SERVICE 02.

The petitioner was deprived of his constitutional rights, both

substantive and procedural, by the hearing officer as shown in the
following pronouncement of the appellee in its assailed decision:
xxx after the marking of evidence, respondent manifested that
the case will undergo full-blown trial but the prosecution
manifested his objection on the ground that the respondent failed
to submit and marked his evidence for his defense as he only
adopted the evidence presented by the prosecution and will have
no basis in conducting cross examination to the respondents. With
this, the hearing officer reminded the respondent that the purpose
of the pre-hearing conference is to mark the evidence submitted
and this will be the basis of the proceedings if a full blown trial
will push through. Due to the absence of the evidence offered by
the respondent, the hearing officer ruled the termination of the
hearing and the case be submitted for resolution. x x x x

It bears stressing that the petitioner requested for trial during the pre-
conference in order to confront the witnesses for the prosecution who never
appeared during the preliminary conference but the hearing officer denied
it anchoring his ruling on a false and misplaced assumption that since the
petitioner failed to mark and submit his evidence, there is no basis to
conduct a trial. The denial of the petitioners pleas for trial was unfair and
unjust because it deprived him his rights to due process. Logically, a trial is
warranted only if a party can present evidence during the pre-conference.

The proceedings in administrative cases are summary in nature but

the petitioner should not be prevented to confront the complainant and his
witnesses a right that is guaranteed under the Constitution to ferret out
the truth and in the light of inconsistencies on material points in their
statements.

In must be pointed out that the hearing officer, in some other cases,
had conducted trial-type proceedings wherein the witnesses were being
cross-examined based on their affidavits that served as their direct
testimonies by the adverse parties while said officer profounded
clarificatory questions. If the hearing officer had conducted trial-type
proceedings in some other cases which are of less gravity than the instant
case, then there was no reason to deny the petitioner of his right to confront
the witnesses.

Notwithstanding the fact that the disciplining authority, in the

exercise of quasi-judicial functions, is not bound by procedural
requirements, it is still bound by law and equity to observe the fundamental
requirements of due process.

Though procedural rules in administrative proceedings are less

stringent and often applied more liberally, administrative
proceedings are not exempt from basic and fundamental
procedural principles, such as the right to due process in
investigations and hearings. The right to substantive and
procedural due process is applicable to administrative
proceedings. (citing PO2 Ruel Montoya vs. Police Director
Reynaldo P. Varilla, et al., G.R. No. 180146, December 18,
2008.)

In the instant case, the proceedings against petitioner were flawed

because he was prevented to confront the complainant and his witnesses.
The hearing officer should have granted the prayer of the petitioner to allay
any fear or speculation of partiality since the complainants were also
police officers. And whether the evidence adduced by the prosecution has
overcome the quantum of proof required in all agencies performing quasi-
judicial functions, the fact remains that there was a procedural shortcut in
arriving to such an erroneous decision. The Supreme Court in Go vs.
National Police Commission, 338 Phil. 162 (1997) issued the following
caveat:

We conclude that petitioner was denied the due process of law

and that not even the fact that the charge against him is serious
and evidence of his guilt is in the opinion of his superiors
strong can compensate for the procedural shortcut evident in the
record of this case. It is precisely in cases such as the utmost care
be exercised lest in the drive to clean up the ranks of the police
force those who are innocent are denied justice or, through
blunder, those who are guilty are allowed to escape punishment.

THE HONORABLE SECRETARY OF THE DEPARTMENT OF

INTERIOR AND LOCAL GOVERNMENT (DILG) AND THE
HONORABLE CIVIL SERVICE COMMISSION (CSC) GRAVELY
ERRED IN FINDING THE PROSECUTION TO HAVE ADDUCED
SUBSTANTIAL EVIDENCE JUSTIFYING THE ACTS IMPUTED TO
THE APPELLANT.

Contrary to the arguments advanced by the Honorable DILG

Secretary and the Honorable Civil Service Commission, the prosecution to
adduce substantial evidence showing that the petitioner indiscriminately
fired his service firearm during the incident. The prosecutions witness,
Jamila Ut-utan, narrated in her affidavit that while closing the door of the
Sounds and Roses KTV Bar, she heard a gunshot but she did not see the
perpetrator. This theory was corroborated by the findings of SPO1 Vic
Ramon Jasmin of the Nueva Vizcaya Police Provincial Internal Affairs
Service who concluded that no one had seen the perpetrator.

As a show of good faith, the petitioner voluntarily surrendered his

firearm for ballistic examination to SPO4 Leonardo Arzadon on March 17,
2009 at the Solano Police Station. As gleaned in the Chemistry Report of
the Nueva Vizcaya Provincial Crime Laboratory Office in Solano, Nueva
Vizcaya, an examination of the subject firearm was conducted only on
March 19, 2009 or three (3) days after the alleged incident showing the
weapon was positive of gunpowder residue. The chain of custody of the
subject firearm is put in doubt because after the petitioner surrendered his
weapon, he lost control of it.

In sum, there is no direct and positive evidence that the petitioner

fired his gun and assuming that it was found positive of gunpowder
residue, it cannot be concluded that he fired it on March 16, 2009 or three
(3) days after the ballistic examination was conducted.

Moreover, the Joint Affidavit dated March 20, 2009 of PI Gerry

Roque, PI Harvey Pajarillo, SPO4 Apolinario Mingaracal and PO3
Leonardo Tallod of the Solano Police Station are full of inconsistencies.

For instance, paragraph 2 of their affidavit stated in this wise:

2. That on the aforementioned date at around 10:45 oclock in

the evening we were at Solano Police Station, a telephone call
from Atty. Dugyon owner of the Sounds and Roses Videoke Bar
located at Silawan Street, Barangay Roxas, Solano, Nueva
Vizcaya informing that there was a trouble committed at said
Videoke Bar wherein one of their customer fired a short firearm
once on the ground in front of Videoke Bar.

The statement finds contrast with the undated and unverified Joint
Affidavit of Chresente Da-ang and Jamila Ut-utan wherein the former
narrated in their affidavit the following:

That because of this information, I immediately called up the

Solano Police Station to rescue my employees x x x x
 Their statements contradict each other because while the police
officers alleged that they were called by Atty. Dugyon, Chresente Da-ang
averred that it was he who called them. It would appear that Chresente Da-
ang, masquerading as Atty. Dugyon, is the one who called the police but
this has not been clarified.

In the same vein, the police officers also narrated the following in
their joint affidavit:

3. That immediately thereafter, we respondent and identified

one of the suspects as PO3 Dexter Parungao Divad wearing half
GOA PNP uniform assigned at Nueva Vizcaya Police Provincial
Office who was under the influence of liquor.

4. That I, PI GERRY ROQUE approached said Non

Commissioned Police Officer (PNCO) and advised to go home
and take a rest but despite of advises, he ignored, disobey my
order being a Police Officer. He is even arrogant, unruly and
unbecoming using the name of the Provincial Director (PD) to
quote: Ako ang Chief Investigator ng Nueva Vizcaya Police
Provincial Office, tanungin mo kay Provincial Director kung sino
ako, walang pwedeng manghuli sakin.

Again, the above-quoted narrations of the police officers

contradicted the statements of Jamila Ut-utan, to wit:

9. That after some few minutes passed, the Solano Police

Mobile came. Some Police Officers tried to pacify the said
policeman. There was a long negotiation between the Police
Officers and the said policeman. While we were about to close
the doors of the bar, we heard a gunfired just in front of the bar.
We firmly closed the doors of the bar because of fear. Suddenly,
the Solano Police Mobile arrived chasing the car of the said
policeman who went away after gunfiring.

While Jamila Ut-utan narrated that the police officers chased the
person who fired a gun, this was not mentioned by the said officers.
Moreover, she said she saw the police officers negotiating with the
petitioner after which a shot rang which was not also mentioned by the
officers in their affidavit.

The petitioner raised these inconsistencies with a full belief that

these may have been threshed out were it not for the refusal of the hearing
officer to accord him a trial especially in the light of the gravity of the
charges against him which had imperiled his own profession as a police
officer.

In a litany of cases decided by the Supreme Court, it held that mere

assumption is not equivalent to proof absent any iota of evidence to the
contrary. To hold otherwise would put in peril every policeman of losing
his job by the simple expedience of executing an ex-parte affidavit
narrating an incident that is based on a wild imagination.
 In addition, these witnesses did not testify as there was no hearing
was ever conducted or at least appeared during the preliminary conference
to identify their affidavits. In a litany of cases decided by the Supreme
Court, affidavits do not stand in court or any tribunal unless they are
testified to by the affiants.

THE HONORABLE SECRETARY OF THE DEPARTMENT OF

INTERIOR AND LOCAL GOVERNMENT (DILG) AND THE
HONORABLE CIVIL SERVICE COMMISSION (CSC) ERRED IN
INREASING THE PENALTY IMPOSED AGAINST THE PETITIONER.

It bears stressing that based on the assailed decision of respondent

PNP Regional Director, the petitioner was dismissed from the police
service. The Honorable Secretary of the DILG and Honorable Commission
did not only affirm the decision of the respondent PNP Regional Director
but imposed a more severe penalty of dismissal from police service WITH
THE ACCESSORY PENALTIES OF CANCELLATION OF CIVIL
SERVICE ELIGIBILITY, PERPETUAL DISQUALIFICATION TO HOLD
PUBLIC OFFICE, AND FORFEITURE OF RETIREMENT BENEFITS.

The penalty was so severe and not commensurate to the charges

leveled against the petitioner. It is unfair and unjust to mete him such a
penalty without any basis at all. In fact, the Honorable DILG Secretary and
the Honorable Commission offered no explanation why it imposed such an
accessory penalty. The fate of petitioner is likened to an accused who was
convicted of homicide which was later increased to murder by an appellate
body.

THE PETITIONERS LENGTH OF SERVICE AND

COMMENDATIONS AND THE FACT THA HE IS A FIRST OFFENDER
MUST BE APPRECIATED IN DETERMINING THE PROPER
PENALTY TO BE IMPOSED GRANTING FOR ARGUMENTS SAKE
THE ACTS IMPUTED TO HIM WERE ESTABLISHED BY
SUBSTANTIAL EVIDENCE.

It bears noting that the petitioner at the time of his dismissal was
with the rank of SPO1 and served the police organization with utmost
dedication. A recipient of numerous awards and commendations, he served
the organization for almost fifteen (15) long years without being found
guilty of any administrative offense before he was dismissed from the
police service.

The Honorable Secretary erred in claiming that the petitioners

length of service was not properly pleaded during the formal hearing of the
case or pending appeal with the administrative bodies below. How can the
appellant invoke this matter when he was deprived of a trial? In addition,
petitioner raised it as a mitigating circumstance in his appeal but
unfortunately, the Honorable DILG Secretary had simply refused to
appreciate it without citing any reason therefor.

Without being repetitive, the RAB and the Honorable DILG

Secretary as well as the Honorable Civil Service Commission did not rule
on the invocation by the petitioner of Section 45 of Republic Act No. 6975
otherwise known as the DILG Act of 1990 in relation to Section 22 of
Rule 15 of the NAPOLCOM Memorandum Circular No. 2007-001. The
assailed decision of the PNP Regional Director dismissing the petitioner
from service has not attained its finality because of the pendency of the
petitioners appeal before the RAB which was seasonably filed on
September 9, 2010 or ten (10) days after he received said decision last
August 30, 2010. The filing of his appeal had automatically divested the
PNP Regional Director of his authority to dismiss him and thus the
issuance of Special Order No. 1102 dated September 16, 2010 effecting his
severance from service was clearly an ultra vires act.

The PNP regional Director, with all dues respect, had probably
misinterpreted the provisions of the law because a decision ipso facto
attains its finality only when the penalty is other than demotion or
dismissal from service. In the case of the petitioner, the decision of the
respondent PNP Regional Director calls for his dismissal and the law itself
grants him the remedy of appeal before the RAB.

The decision of the RAB affirming the decision of the PNP Regional
Director is, as a matter of recourse, appealable to the Honorable Secretary
of the DILG who controls and supervises the entire PNP.

On the other hand, since the DILG is under the administrative and
control and supervision of this Honorable Commission because of the
civilian character of the PNP and pursuant to Section 2(1), Article IX-B of
the Constitution, the decision of the Honorable DILG Secretary is also
appealable to the Honorable Commission. The manner of taking an appeal
is in deference to the doctrine of exhaustion of administrative remedies to
avoid premature resort to the courts.

IN FINE, THE PETITIONER HUMBLY REITERATES THAT HIS

UNHOLY DISMISSAL FROM THE POLICE SERVICE WITHOUT THE
DECISION OF THE PNP REGIONAL DIRECTOR HAVING ATTAINED
ITS FINALITY IS WITHOUT BASIS, AN ACT THAT IS ULTRA VIRES,
AND A GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION.

With these, the petitioner who has suffered a lot as a consequence of

his severance from service which was his only source of livelihood for his
family, especially his small children, whom they are depended on, humbly
implores the compassion of this Honorable Court to please consider his
length in service and commendation and awards as mitigating
circumstances under Section 4, Rule 22 of the Rules and therefore the
penalty of dismissal be downgraded to a lesser penalty, assuming the
charges imputed against him were substantiated by evidence.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this

Honorable Court that the Decision dated January 9, 2013 of the Honorable
Civil Service Commission affirming the Decision dated 31 August, 2011
and Resolution dated 30 January, 2012 of the Honorable Secretary of the
Department of Interior and Local Government (DILG) which affirmed the
Decision dated 24 February, 2011 of the Regional Appellate Board (RAB),
Regional Office 02, National Police Commission which also affirmed the
Decision dated 26 August, 2010 of the Regional Director, Regional Police
Office 02 in Administrative Case No. IAS BR 09-18 finding the herein
petitioner guilty of grave misconduct and imposing upon him the maximum
penalty of dismissal from police service with the accessory penalties of
cancellation of Civil Service eligibility, perpetual disqualification to hold
public office, and forfeiture of retirement benefits be REVERSED and SET
ASIDE. Accordingly, it is respectfully prayed that herein petitioner be
REINSTATED to the police service with the corresponding rights and
privileges appurtenant thereto. Petitioner further prays for such other reliefs
just and equitable under the foregoing premises are also prayed for.

Solano, Nueva Vizcaya, for Quezon City, June 14, 2013.

DEXTER P. DIVAD
Petitioner

CERTIFICATION AND VERIFICATION

I, DEXTER P. DIVAD, under oath, hereby declare and state:

That I am the petitioner in the above-styled petition; that I have

caused its preparation and have read the allegations contained therein; that
the allegations therein are true and correct of my own personal knowledge
and based on authentic records or documents;

That I hereby certify that I have not commenced any other action or
proceedings involving the same issues in the Supreme Court, Court of
Appeals, or any other agency or tribunal;

That if I should thereafter learned that a similar action or

proceedings has been filed or is pending before the Supreme Court, Court
of Appeals, or any other tribunal or agency, I hereby undertake to report
that fact within five (5) days therefrom to the court or agency wherein the
original pleading and sworn certification contemplated herein have been
filed.

IN WITNESS WHEREOF, I have hereunto set my hand on this

document this 14th day of June 2013 at Bayombong, Nueva Vizcaya.

DEXTER P. DIVAD
Petitioner

SUBSCRIBED AND SWORN TO before me this 14 th day of June

2013 at Bayombong, Nueva Vizcaya, affiant having exhibited to me his
Drivers License No. ______________ bearing his name and signature.

Copy furnished:

The Regional Police Director

PNP Regional Office 02
Respondent
Cam Adduru, Tuguegarao City
Cagayan

The Regional Appellate Board (RAB_

Philippine National Police
Regional Office 02
Cam Adduru, Tuguegarao City
Cagayan

The Honorable Secretary

Department of Interior and Local Government (DILG)
Francisco Gold Condominium II
EDSA Cor. Mapagmahal St., Diliman, Quezon City

The Honorable Civil Service Commission (CSC)

CSC Building, IBP Road, Constitution Hills
1126 Quezon City
 EXPLANATION

Copies of the foregoing Petition for Review were duly served to the
aforenamed addressees by registered mail with return card personal service
being impracticable due to time and distance constraints and personally
served upon this Honorable Office.

DEXTER P. DIVAD