S. 43A IT Act | Company Preparing List Of Employees Not Vaccinated Against COVID-19 Is Not Circulating Sensitive Personal Data: Madras High Court

Justice Anand Venkatesh thus set aside a private complaint initiated against a company by its former employee. The court noted that the company was merely taking preventive measures to safeguard itself from COVID-19 attacks.

“The follow up made by the petitioner company by getting a list of persons, who have not vaccinated, will not tantamount to circulating the sensitive personal data. The petitioner company was following up with its employees to ensure that they got vaccinated and took preventive measures to safeguard themselves from the Corona virus attack. Such an effort within the petitioner company or any other organization cannot and will not become an offence, per se, under Section 43A of the IT Act,” the court observed.

The court was hearing a plea by Bharti Airtel Ltd seeking to quash the proceedings initiated pursuant to a private complaint made by one of its former employees Mr.Kamatci Shankar Arumugam, before the Udumalpet Judicial Magistrate.

In his complaint to the Magistrate, Arumugam had submitted that the company wanted its employees to get vaccinated. When Arumugam took a stand that he would not vaccinate and that he would not mark/inform his vaccination status, the company included his name in the list of employees who have not been vaccinated and asked Arumugam to continue working through online mode whenever possible.

The company also informed Arumugam that if physical presence at office premises was involved, he could apply for leave as per the allotted quota or on loss of pay. However, when Arumugam absented himself, the same was taken as an unauthorized absence and he was subsequently terminated.

Arumugam had contended that there was a principal and agent relationship between him and the company and they were bound by a lawful contract. He contended that the company had violated the contract by circulating his information due to which wrongful loss was caused to him and he lost his employment.

The court noted that Section 43A was not strictly an offense under the IT Act and was more like a tort. The court noted that the consequence of commission of a tort was payment of damages or compensation and no punishment had been prescribed under the Act. Thus, the court noted that the offence was not one, which could be taken cognizance of by a court.

The court also noted that even if the allegations were true, it did not make out an offense and the complaint was mala fide. The court noted that Arumugam had come up with the frivolous complaint against the company due to vengeance against his termination.

Thus, noting that the private complaint was an abuse of process of law, the court deemed it fit to quash the complaint and ordered accordingly.

Counsel for the Petitioner: Mr.Vijay Narayan, SC for Mr.P.J.Rishikesh

Counsel for the Respondent: Appearing in person

Citation: 2024 LiveLaw (Mad) 66

Case Title: Gopal Vittal, Bharti Airtel Ltd v Kamatci Shankar Arumugam

Case No: Criminal Original Petition No.20928 of 2023

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