The charge issued was the charge approved, give or take a clerical correction: Delhi High Court upholds a CCI memorandum of charge
Chief Justice Devendra Kumar Upadhyaya and Justice Tejas Karia hold that a vigilance advice never placed before the disciplinary authority did not vitiate the charge, there being nothing left to reconsider.
An officer facing departmental proceedings before the Competition Commission of India has lost his challenge to the memorandum of charge issued against him. A Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tejas Karia dismissed the intra-court appeal, holding that the charge finally issued was the same document the Commission had approved as the disciplinary authority, subject only to a clerical correction, so the defect identified by the Supreme Court in B.V. Gopinath did not arise. His grievances about defence documents and the closure of his defence were left where the single judge had left them — to be decided by the inquiry and disciplinary authorities before any final order.
The challenge and its route
The appeal was directed against a judgment of 1 July 2026 by a single judge dismissing the appellant's writ petition, and against the memorandum of charge of 3 October 2023 issued by the Commission. Senior Advocates Harin P. Raval and Gautam Narayan appeared for the appellant, and Senior Advocate Vinay Kumar Garg for the Commission. Judgment was reserved on 7 August 2026 and delivered on 30 September.
The substance of the charge, as the Bench described it, concerns the manner in which the statements of two individuals came to be recorded and signed — an allegation of tampering. The appellant's attack, however, was not on the merits of that allegation. It was on the validity of the charge as an instrument: whether the disciplinary authority had given the approval the rules require, and whether the officer who directed its issuance had the power to do so.
The Bench framed four issues. Whether the memorandum of charge was vitiated for want of the express and recorded approval of the Commission, acting as disciplinary authority, as mandated by Rule 14(3) of the applicable service rules — and within that, whether the draft chargesheet approved by the Commission was the same document as the memorandum later issued, and whether the list of witnesses at Annexure IV, which was not forwarded to the Central Vigilance Commission with the draft, together with a later amendment of the statement of imputations by corrigendum, amounted to material alterations requiring fresh approval. Whether the Chairperson's direction of 3 October 2023 to issue the memorandum was a valid exercise of the power of general superintendence, direction and control. And whether the single judge was right to relegate the grievances about defence documents and the closure of the defence to the disciplinary authority.
Why approval is a live issue at all
Challenges of this kind are common enough to be worth explaining. Rule 14(3) of the service rules requires that where it is proposed to hold an inquiry, the disciplinary authority shall draw up or cause to be drawn up the substance of the imputations of misconduct into definite and distinct articles of charge. The requirement is not clerical: the disciplinary authority is the body empowered to decide whether an officer should face an inquiry and on what, and the charge is the instrument by which that decision takes effect.
The consequence, established in the case law, is that a charge issued without the disciplinary authority's approval of the charge itself does not survive — and no amount of subsequent inquiry can cure it, because the proceedings were never validly begun. That is what makes approval worth litigating before the inquiry runs its course, and why an officer who has a point on it is not obliged to wait for a final order.
In the present case the Commission is the disciplinary authority, and three documents were in play: the draft chargesheet the Commission approved in August 2023, the memorandum of charge issued in October 2023, and a corrigendum. The appellant's argument was that these were not the same thing.
What B.V. Gopinath actually requires
The appellant's strongest card was B.V. Gopinath, in which the Supreme Court held that the approval of the disciplinary authority must relate to the charge as finally issued, and not merely to an earlier decision to proceed against the officer. A charge issued without approval of the charge itself does not survive.
The Bench accepted the proposition and then found it satisfied on the facts. The charge issued on 3 October 2023 was the charge the Commission had approved on 4 August 2023, subject only to a clerical correction effected by the corrigendum. The infirmity that arose in B.V. Gopinath — an approval that did not relate to the charge as issued — did not arise here. On that footing the decision was held to be of no assistance to the appellant.
The vigilance advice that never reached the Commission
The more interesting part of the judgment concerns the Central Vigilance Commission's advice, and the Bench's treatment of it is candid about what went wrong procedurally before explaining why it did not matter.
It is undisputed, the judgment records, that the vigilance advice was not placed before the Commission. The appellant's case was that this omission went to the root of the approval: the disciplinary authority could not be said to have approved a charge in the knowledge of what the vigilance body had said about it.
The Bench's answer turns on the content of the advice rather than the fact of its non-placement. The advice concurred with the charge the Commission had already approved and suggested no alteration. There was accordingly nothing in it for the Commission to reconsider.
The list of witnesses was dealt with on the same logic running the other way. That list had not been forwarded to the vigilance body along with the draft chargesheet. The Bench held that this did not alter the position either, for two reasons. The list had already been approved by the Commission on 4 August 2023 as part of the draft chargesheet — so it was not a document brought into existence later. And being outside the reference made to the vigilance body, it was not a matter on which that body's advice could have called for any change; its concurrence therefore left nothing for the Commission to reconsider in respect of the list either.
The Bench added an independent answer. The requirement relied on came from an office memorandum, which is an executive instruction. Non-observance of such an instruction, absent prejudice to the appellant, would not vitiate the memorandum of charge. The authority of Sunny Abraham was considered in this part of the reasoning.
On the second issue, the conclusion was short: the Chairperson's direction of 3 October 2023 constituted a valid administrative direction issued pursuant to Section 13 of the Act.
The grievances sent back to the inquiry
The appellant had also complained that of 132 defence documents sought, only 37 were supplied; that the remainder were refused; and that his defence and general examination were closed.
The Bench concurred with the single judge that these grievances do not warrant separate adjudication by the High Court. Such complaints are ordinarily required to be raised before the inquiring authority and the disciplinary authority, and determined before any final order is passed. Finding no infirmity in the single judge's approach in relegating them to the appropriate stage, the Bench left the appellant at liberty to press them, and recorded that they shall be considered on their merits by way of reasoned orders.
A related set of submissions, founded on the investigation report and an application for additional documents, was held to pertain to the factual basis of the tampering allegation rather than to the question of approval under Rule 14(3). Whether the charge is established is a matter of evidence to be determined by the inquiring authority, and the Bench expressly declined to express any opinion on that material.
The effect of the judgment, then, is narrower than a dismissal might suggest. Nothing has been decided about whether the appellant did what he is charged with. What has been decided is that the charge was validly framed and validly directed to be issued, so the inquiry can proceed — with his evidentiary and document grievances still live before the authorities that are to decide them.
There is a line running through the whole judgment about where such complaints belong. An attack on the validity of the charge goes to whether the proceedings exist, and a court can entertain it at the outset. Complaints about how the inquiry is being conducted — which documents were supplied, whether the defence was prematurely closed, whether an investigation report helps or hurts — go to the fairness of a process that is still running, and the forum for those is the process itself, subject to review once it ends. The appellant's difficulty was that having failed on the first kind of objection, everything else he raised fell into the second.
It is also worth noting what the Bench conceded along the way. It did not pretend the file had been handled perfectly: the vigilance advice was not placed before the Commission, and the list of witnesses was not sent to the vigilance body. The reasoning accepts both and asks what difference either made — which is the orthodox approach to procedural lapses in service law, where an irregularity without prejudice does not void what follows. Had the advice disagreed with the approved charge, or had the list been something the Commission had not already seen and approved, the outcome on those points would not obviously have been the same.
Order
The appeal was dismissed subject to the observations recorded in the judgment. All pending applications were disposed of, and the exemption applications allowed subject to all just exceptions.
There was no order as to costs. The original record produced by the Commission was returned.