JUDGMENT & ORDER : Heard Mr. R. Paul, learned counsel appearing for the petitioner as well as Mr. N. Choudhury, learned G.A. appearing for the respondents. 2. By means of this writ petition the petitioners with the legal heirs of Milan Kumar Singha who expired on 14.04.2014 has challenged the memorandum No.DP.08/2011/MKS/TSR-II/Estt/2011/12361-69 dated 27.10.2011 [Annexure-8 to the writ petition] issued by the Commandant, 2nd Battalion, TSR, RK Nagar whereby Milan Kumar Singha, since deceased was removed from the service under Section 12(1)(i) of the Tripura State Rifles Act, 1983. The petitioners have further urged to release the service benefit for death of Milan Kumar Singha as he was serving as the Rifleman (Driver) in the said category. 3. Briefly stated, the facts relevant in this case are that Milan Kumar Singha was serving as the Rifleman (Driver) was chargee-shetted by the memorandum No.DP/08/2010/TSR-II/ESTT/MKS/10/5504 dated 02.07.2011 issued by the respondent No.4 has charged in the misconduct which are as follows : CHARGE-I No.92020784 Rfn(Driver) Milan Kumar Singha, ‘Adm’ Coy of 2nd Bn TSR is charged for gross misconduct to the effect that he absented himself from HQ, 2nd Bn TSR, R. K. Nagar on the following 03(three) occasions. Therefore, said No.92020784 Rfn(Dvr) Milan Kumar Singha of Adm Coy, 2nd Bn TSR is charged for indiscipline activity and gross misconduct. CHARGE-II Again, No.92020784 Rfn(Driver) Milan Kumar Singha of ‘Adm’ Coy of 2nd Bn TSR absented himself from HQ, 2nd Bn TSR, R.K. Nagar wef 03.01.2011 at 1100 hrs unauthorized and still absenting. Therefore, said No.92020784 Rfn(Driver) Milan Kumar Singha of ‘Adm’ Coy of 2nd Bn TSR is charged for indiscipline activity and gross misconduct. ANNEXURE-II STATEMENT OF IMPUTATION OF MISCONDUCT OR MISBEHAVIOUR IN SUPPORT OF THE ARTICLES OF CHARGE FRAMED AGAINST NO.92020748 RFN(DRIVER) MILAN KUMAR SINGHA OF ‘ADM’ COY, 2ND BN TSR No.92020784 Rfn(Driver) Milan Kumar Singha of ‘Adm’ Coy of 2nd Bn TSR absented himself from HQ 2nd Bn TSR, R.K. Nagar on 03(three) occasions i.e. 04 days w.e.f. 27-09-2010 to 29-09-2010, 28 days w.e.f. 15-10-2010 to 12-11-2010 and 02 days w.e.f. 14-11-2010 to 16-11-2010 unauthorized without any authority. Again, he absented himself from HQ, 2nd Bn TSR, R.K. Nagar w.e.f. 03.10.2009 at 1800 hrs unauthorized without any authority. 03(three) notices were sent to him at his home address directing him to join duty forthwith. But he did not turn up and still absenting. Again, he absented himself from HQ, 2nd Bn TSR, R.K. Nagar w.e.f. 03.10.2009 at 1800 hrs unauthorized without any authority. 03(three) notices were sent to him at his home address directing him to join duty forthwith. But he did not turn up and still absenting. This act on the part of No.92020784 Rfn(Driver) Milan Kumar Singha amounts to gross misconduct and also unbecoming on the part of a member of the Rifles. 4. The inquiry was carried out as Milan Kumar Singha disputed the allegations and stated that for his serious illness he could not report to the duties. The inquiry report inducted and stated that the charges brought against Milan Kumar Singha have improved. The disciplinary authority thereafter issued a letter after supplying the copy of the inquiry report asking Milan Kumar Singha to make his representation, if any in the inquiry report. Milan Kumar Singha filed the representation and after taking the said representation in the consideration the disciplinary authority by the provisional punishment order under No.DP/08/2011/MKS/TSR-II/Estt/2011/9241 dated 30.09.2011 [Annexure-7 to this writ petition] where it is found that Milan Kumar Singha was absent in the 2nd Bn on different spell for 314 (three hundred and fourteen) days. For purpose of reference, the observation made by the disciplinary authority in the said provisional punishment order dated 30.09.2011 is extracted hereunder: ARTICLE OF CHARGE Charge-I No.92020784 Rfn(Dvr) Milan Kumar Singha of ‘Adm’ Coy, 2nd Bn TSR is charged for gross misconduct to the effect that he absented himself from HQr. 2nd Bn TSR, R.K. Nagar on the following 03(three) occasions :- 04 days wef. 27.09.2010 to 30.09.2010 28 days wef. 15.10.2010 to 12.11.2010 02 days wef. 14.11.2010 to 16.11.2010 Charge-II No.92020784 Rfn(Dvr) Milan Kumar Singh of ‘Adm’ Coy, 2nd Bn TSR absented himself from HQr. 2nd Bn TSR, R.K. Nagar wef 03.01.2011 at 11 00 hrs unauthorisedly and still absenting. WHEREAS A statement of imputation of misconduct on which the article of charge was framed together with a list of documents by which and list of witnesses by whom the charge was proposed to be sustained were also forwarded to him along with the Memorandum No.DP.08/2011/TSR-II/Estt/MKS/11/5504 dated 02.07.2011. WHEREAS Shri Paresh Chandra Debbarma, Asstt. Comdt, 2nd Bn TSR was appointed as Enquiry Officer to enquire into the charges framed against No.92020784 Rfn(Dvr) Milan Kumar Singha of ‘Adm’ Coy 2nd Bn TSR vide order No.DP.08/2011/TSR-II/Estt/MKS/11/6425-26 dated 26.07.2011. WHEREAS Shri Paresh Chandra Debbarma, Asstt. Comdt, 2nd Bn TSR was appointed as Enquiry Officer to enquire into the charges framed against No.92020784 Rfn(Dvr) Milan Kumar Singha of ‘Adm’ Coy 2nd Bn TSR vide order No.DP.08/2011/TSR-II/Estt/MKS/11/6425-26 dated 26.07.2011. WHEREAS In the course of enquiry the Enquiry Officer examined the prosecution witnesses, recorded their statement to prove the charge framed against the charged Rfn. Every opportunity was given to the charged No.92020784 Rfn(Drv) Milan Kumar Singha of ‘Adm’ Coy 2nd Bn TSR by the Enquiry officer to defend his case. He was given opportunity to engage his defence assistant and to cross examine the prosecution witnesses but the delinquent declined to engaged any defence Assistant to defend the case vide application dated 12.08.2011. WHEREAS In view of the above evidence so far recorded and collected, I found sufficient reason to agree with the findings of Enquiry Officer relating to charge framed against the charged No.92020784 Rfn(Dvr) Milan Kumar Singha of ‘Adm’ Coy 2nd Bn TSR in proceeding No.08/2011. The offence committed by the charged person amount to gross misconduct which is prejudicial to good order and discipline of the Rifles under Rule 12(1) of TSR Act 1983. NOW THEREFORE, in exercise of the power conferred by Rule-12(1) of the Tripura State Rifles Act 1983, and Rule 11(iv) of CCS (CCA) Rules 1965, I Shri Khatra Joy Reang, IPS, Commandant, 2nd Bn TSR being the appointing authority do hereby propose to award punishment of ‘Removal from Service’ which shall not be a disqualification for future employment under the Government U/S 12(1)(i) of TSR Rule 1983 to No.92020784 Rfn(Dvr) Milan Kumar Singha of ‘Adm’ Coy 2nd Bn TSR by treating the following period of absence as ‘Diesnon’:- (i) 27.09.2010 to 30.09.2010 04 days (ii) 15.10.2010 to 12.11.2010 28 days (iii) 14.11.2010 to 16.11.2010 02 days (iv) 20.12.2010 to 03.11.2011 15 days (v) 03.01.2011 to 17.08.2011 226 days (vi) 22.08.2011 to 29.09.2011 39 days Grand total 314 days Now, No.92020784 Rfn(Dvr) Milan Kumar Singha of ‘Adm’ Coy 2nd Bn TSR is hereby given an opportunity of making representation on the punishment proposed above. Such representation, if any should be made in writing and submitted so as to reach to the undersigned not later than 15(fifteen) days from the date of receipt of this order. 05. Such representation, if any should be made in writing and submitted so as to reach to the undersigned not later than 15(fifteen) days from the date of receipt of this order. 05. Finally by the punishment order under No.DP.08/2011/MKS/TSR-II/Estt/2011/12361-69 dated 27.10.2011 [Annexure-8 to the writ petition] the petitioner was removed from the service without disqualification for future employment. The period of absence when he performed his duty has been declared as dies-non. Even though Milan Kumar Singha expired on 14.04.2014, he did not challenge the said punishment order dated 27.10.2011 either by filing the appeal or by resorting to any other action. After his death his dependent legal heirs have filed this petition. Finally, they holding that the punishment that has been imposed is disproportionate to raise misconduct if the misconduct is not challenged. 06. Mr. R. Paul, learned counsel appearing for the petitioners has submitted that since Milan Kumar Singha was a patient of Cancer, he was under treatment. For that reason, he could not file the writ petition for seeking judicial review of the said order. Mr. Paul, learned counsel at the outset has submitted that on instruction of the petitioner he would confine his submission to the aspect of the proportionality of the punishment vis-a-vis his advertent misconduct. In support of his contention Mr. Paul, learned counsel has placed reliance on three decisions of the apex court. In Shri Bhagwan Lalarya vs. Commissioner of Police, Delhi and Others reported in (2004) 4 SCC 560 the apex court has observed that when someone has to proceed on leave under compulsion because of his grave condition of health, the punishment of removal from service is excessive and disproportionate. It has been observed by the apex court: “We are of the view that the punishment of dismissal/removal from service can be awarded only for the acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility of complete unfitness for police service. Merely one incident of absence and that too because of bad health and valid and justified grounds/reasons cannot become basis for awarding such a punishment.” 07. Merely one incident of absence and that too because of bad health and valid and justified grounds/reasons cannot become basis for awarding such a punishment.” 07. In Rajinder Kumar vs. State of Haryana and Another reported in (2016) 15 SCC 693 the apex court has observed that once a person is found unfit for service on account of intermittent and unauthorized absence for which the delinquent though has a reasonable explanation, no doubt, there would be no point in continuing him in service. Indiscipline of any sort cannot be tolerated in the disciplined force. However considering the discretion vested on the competent authority to decide what should be the proper punishment taking into consideration of the nature of misconduct, its gravity and its impact on the service and instead of remanding the matter in regard to the prolonged litigation instead of dismissal order passed by the competent authority, punishment of the compulsory retirement from the date of original order would be appropriate. 08. Mr. R. Paul, learned counsel appearing for the petitioners has submitted that in this case also the order of removal from his service is grossly inappropriate and disproportionate to the misconduct on unauthorized absence from the service. Finally Mr. R. Paul, learned counsel has placed his reliance on a decision of the apex court in Central Industrial Security Force and Others vs. Abrar Ali reported in (2017) 4 SCC 507 where the apex court has observed that that the penalty of dismissal from service is not commensurate with the delinquency. The delinquent was found guilty of desertion of the Force for a period of five days and not improving his conduct in spite of imposition of penalties on three earlier occasions. The apex court in Abrar Ali (supra) has held that the penalty of dismissal from service is excessive and harsh. The apex court has further observed that the penalty of compulsory retirement would meet the ends of justice. If the penalty of compulsory retirement is granted the appellant would be entitled for pension if that completed 10 years of service. 09. When this court asked Mr. The apex court has further observed that the penalty of compulsory retirement would meet the ends of justice. If the penalty of compulsory retirement is granted the appellant would be entitled for pension if that completed 10 years of service. 09. When this court asked Mr. Paul, learned counsel appearing for the petitioner that why Milan Kumar Singha did not approach the appellate authority which has been statutorily provided, he has replied that it is the option of the petitioner whether he would prefer an appeal or he would go for the judicial review by the High Court. 10. From the other side, Mr. N. Choudhury, learned G.A. appearing for the state-respondents has categorically stated that Milan Kumar Singha had been repeatedly absenting from his service and as such said orders were passed. The delinquent become incorrigible and as such the interest and the discipline of the force the said penalty was imposed commensurate dismissed by the competent authority. 11. The three pertinent questions emerged for consideration of this court viz. (i) whether without asserting to the appeal the appellate authority and delinquent who has been proceeded departmentally and by the order of the penalty has been furnished can directly come to the high court for judicial review? (ii) whether the writ petition is hit by doctrines of laches? and (iii) whether the penalty is in excess or disproportionate to the delinquency? It cannot be just reached away that during his lifetime Milan Kumar Singha did not challenge the impugned penalty order dated 27.10.2011 [Annexure-8 to this writ petition]. 12. As stated earlier, the final penalty order was issued on 27.10.2011 whereas Milan Kumar Singha has died on 14.04.2014. On a reading of the entire writ petition no explanation is found in respect of what Milan Kumar Singha has done during that period. 13. Let us take the first question first, what Mr. R. Paul, learned counsel has asserted that even the order of the disciplinary committee can be directly challenged without approaching the appellate authority is grossly erroneous when there is an existence of…..remedy before coming for the judicial review the person aggrieved by any action shall exhaust that review and thereafter should approach for judicial review. However it also cannot be denied in some cases the persons were aggrieved can approach this court. However it also cannot be denied in some cases the persons were aggrieved can approach this court. Even if this aspect of the matter under the circumstances kept aside but the petitioners cannot overcome that the delinquent himself has allowed the impugned penalty order to reach its finality. After his death whether the petitioners are entitled to challenge the said penalty order the answer shall be in the negative inasmuch as this is not a case where the petitioners have been able to show that during the intervening period Milan Kumar Singha was prevented by his serious illness to approach the appellate authority or filing the application for judicial review. 14. Hence this court is of the view that the petitioners being the legal heirs of Milan Kumar Singha cannot take the cause as such belated stage where they are in interested at the relevant point of time not at all involved even though they were affected by the outcome of the proceeding as the dependents. 15. Mr. R. Paul, learned counsel has strenuously argued that this court in exercise of the power for judicial review can take up the matter and interfere with the penalty order. According to him since it was a case of an unauthorized absence from the duty such harsh punishment should not have been there when such punishment for removal from the service without further stigma has been granted. 16. On scrutiny of the records this court finds that it is not once, but for six times he was unauthorisedly absent and it was not a case of overstay of the leave for illness. Thus the decisions as cited by Mr. Paul, learned counsel are not comparable with the present context. True it is that, ordinarily when a penalty is challenged on proportionality the court may and cases where its consensus terribly shocked can directly interfere and exercise of its power for judicial review. But is the rule of prudence that is the consensus….shocked the manner should be remitted for reconsideration by the disciplinary authority or any other competent authority. True it is that, ordinarily when a penalty is challenged on proportionality the court may and cases where its consensus terribly shocked can directly interfere and exercise of its power for judicial review. But is the rule of prudence that is the consensus….shocked the manner should be remitted for reconsideration by the disciplinary authority or any other competent authority. The reason behind of approaching the court…as this court is unable to grant leave to the petitioners inasmuch as the procedure that has been adopted inasmuch as this is not a case where this court shall exercise its discretionary power to reduce the penalty by altering the penalty as has been imposed by the competent authority. As a result, this writ petition stands dismissed. There shall be no order as to costs.