Introduction

Allegations of abuse at a daycare facility operating inside the premises of a well-known corporate establishment in Bengaluru have renewed debate about how far an employer’s responsibility extends when it provides childcare at the workplace. The criminal investigation is ongoing and the facts have not yet been established, but the episode raises a legal question that reaches well beyond criminal liability. What does it actually mean for an employer to comply with the statutory duty to provide a crèche, and where does that duty end?

Workplace crèches are no longer treated as optional welfare initiatives or discretionary human resource benefits. Since the Maternity Benefit (Amendment) Act, 2017, establishments employing fifty or more persons have been under a statutory duty to provide crèche facilities within a prescribed distance and to allow women employees to access those facilities during working hours. Parliament’s purpose was not confined to maternity protection. It was to keep women in the workforce by ensuring that childcare responsibilities do not force them out of employment.

The central argument of this article is straightforward. The duty to provide a crèche is not discharged by designating a room, signing a vendor contract and moving on. It is a continuing governance obligation that runs alongside a distinct and often overlooked source of exposure: the mandatory child protection and reporting duties under the Protection of Children from Sexual Offences Act, 2012 (POCSO). Read together, the maternity benefit framework, the National Minimum Guidelines and POCSO place employers under an obligation of active, documented oversight. Outsourcing the operation of a crèche does not outsource that obligation.

This article examines the statutory duties imposed by the Maternity Benefit Act, 1961, the National Minimum Guidelines, POCSO and the Code on Social Security, 2020. It analyses the judicial approach in Bahra University v. Dr. Pooja Bhardwaj and a recent Supreme Court ruling on institutional reporting duties. It then sets out a practical compliance framework that companies can implement.

From Welfare Measure to Statutory Obligation: Section 11A of the Maternity Benefit Act

The development of maternity protection in India shows a steady shift from safeguarding pregnancy and childbirth toward sustaining women’s participation in the workforce. The Maternity Benefit Act, 1961 concentrated on paid maternity leave, nursing breaks and protection against dismissal during maternity. The Maternity Benefit (Amendment) Act, 2017 altered that framework by accepting that meaningful maternity protection continues after childbirth. Its most significant structural reform was Section 11A, which requires every establishment employing fifty or more employees to provide a crèche facility within the prescribed distance and to permit women employees four visits to the crèche each day, in addition to the interval allowed for rest.

Section 11A was not an incidental addition. It reflected Parliament’s recognition that the absence of accessible and reliable childcare is one of the main reasons women do not return to work after maternity leave. The provision seeks to reconcile two objectives of comparable importance: protecting the welfare and development of young children, and enabling women to continue their careers without having to choose between employment and caregiving. In that sense it advances substantive gender equality at work.

The provision itself sets out only the broad outline of the duty. It requires a crèche to exist and gives eligible employees a right to visit it during working hours, but it says nothing about the standards for establishing, operating or supervising such a facility. Had the obligation stopped at the provision of physical space, compliance could have been reduced to a formality. To address that gap, the Ministry of Women and Child Development issued the National Minimum Guidelines for Setting Up and Running Crèches under the Maternity Benefit Act, 2017, which supply the substantive content needed to interpret Section 11A.

The National Minimum Guidelines: The Substantive Content of Compliance

The Guidelines treat a compliant crèche as a professionally managed childcare facility rather than a token amenity. They extend the benefit to the children of every category of employee, whether permanent, temporary, contractual, daily wage or consultant, and typically cover children between six months and six years of age. They recommend that the facility be located at or near the workplace, preferably within a radius of 500 metres, and that it maintain sufficient space per child so that children can rest, play and learn safely. Accessibility is therefore built into the legislative scheme, so that parents, and nursing mothers in particular, can make real use of the facility during the working day.

On infrastructure, the Guidelines prescribe standards directed at child safety and development. They recommend that a crèche be located preferably on the ground floor, built in line with applicable building norms, well ventilated and well lit, and equipped with safe drinking water, child-friendly sanitation, separate areas for different age groups, breastfeeding spaces and adequate indoor and outdoor activity areas. The aim is not simply to create childcare infrastructure but to create surroundings suited to children’s physical, emotional and cognitive development.

The operational safeguards are equally important, and they are where most compliance failures occur. The Guidelines require employers and operators to put child protection measures in place, among them secure entry systems, attendance registers, verification of the identity of anyone authorised to collect a child, safe storage of hazardous materials, fire safety equipment, evacuation plans and continuous supervision so that no child is left unattended. They contemplate a dedicated Child Protection Policy and require that any verbal, physical or sexual abuse be dealt with under the applicable law, including POCSO.

The Guidelines also recognise that infrastructure alone cannot secure a child’s safety. They call for police verification of security personnel, background checks for crèche staff, regular medical examination of children, first-aid readiness, age-appropriate nutrition, periodic monitoring and a crèche monitoring committee composed of parents, crèche personnel and the employer’s administration. Taken together, these provisions show that the employer’s duty extends beyond financial investment to the continuous oversight of the quality, safety and governance of the facility.

The Judicial Position: Bahra University and Substantive Compliance

Judicial recognition of the substantive nature of the crèche obligation is well illustrated by Bahra University v. Dr. Pooja Bhardwaj (CWP No. 2955 of 2019), decided by the Himachal Pradesh High Court on 27 July 2021. The employee had been granted maternity leave but was denied wages for that period and faced difficulty resuming duty in the absence of an adequate crèche. The Court upheld the concurrent findings against the employer and directed it to release the maternity benefit as leave wages with interest and to accept the employee’s rejoining.

The significance of the decision lies in its reasoning rather than its quantum. The Court read Section 11A together with the National Minimum Guidelines and treated the obligation as one of substantive provision, not symbolic establishment. An employer does not discharge its duty simply because a crèche is eventually created; the facility must conform to the prescribed standards, and an employee is not to be penalised for declining to resume work until a compliant crèche is available. The judgment therefore anchors the proposition that compliance is measured by the adequacy and safety of the facility, not by its bare existence.

Outsourcing Does Not Outsource Liability

Most employers do not run crèches themselves. They engage specialist operators, and they often assume that a well-drafted contract transfers the risk. That assumption is only partly correct.

A vendor contract can allocate operational responsibility and provide for indemnity, but it cannot displace the employer’s statutory duty under Section 11A, its governance obligations under the National Minimum Guidelines, or the personal reporting duty that Section 21(2) of POCSO fixes on the person in charge of the institution. A contractual indemnity is a mechanism for recovering loss after the event. It is not a defence to a regulatory proceeding, and it does not answer a reputational or employment-law consequence. Where the childcare made available to employees fails to meet prescribed standards, the employer remains exposed even if primary criminal liability ultimately rests on an individual offender or the operator.

The practical consequence is that outsourcing raises, rather than lowers, the importance of oversight. The employer must satisfy itself through due diligence, contract terms and continuing audit that the operator meets the Guidelines and maintains the child protection and reporting systems the law requires. Delegation of operations without retention of oversight is the precise gap that converts an unfortunate incident into an institutional failure.

The Broader Oversight Framework

Several further instruments shape the employer’s duty of care and should be read alongside the core obligations.

The Code on Social Security, 2020, though not yet fully in force across all jurisdictions, retains maternity protection within India’s consolidated labour law and signals continuity with the principles of the Maternity Benefit Act rather than a departure from them. Employers should treat the crèche obligation as a durable feature of the labour law framework, not a transitional requirement.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 governs the workplace within which the sits. Its requirement of an Internal Committee and a functioning grievance mechanism is relevant to complaints raised by employees, including complaints concerning the conduct of persons at the workplace, and it reinforces the expectation that a credible reporting and redressal channel exists.

The Commissions for Protection of Child Rights Act, 2005 empowers the National Commission for Protection of Child Rights and the State Commissions to inquire into violations of child rights. An institution associated with a child protection failure may find itself subject to such inquiry in addition to police investigation, which widens the field of regulatory scrutiny beyond the criminal process.

Individual perpetrators, in addition to prosecution under POCSO, remain liable under the general criminal law for offences involving assault, cruelty or negligence. The point for employers is that the exposure is layered. A single incident can generate criminal, regulatory, civil and employment consequences at the same time, and different provisions can attach to the operator, the individual and the employer respectively.

An Actionable Compliance Framework for Employers

The obligations above translate into a set of concrete measures. The following framework is organised by function so that responsibility can be assigned and evidenced.

1. Vendor due diligence before engagement. Verify the operator’s registration, track record, insurance cover and prior compliance history. Require documented evidence that staff have undergone police verification and background checks, and that the operator maintains a Child Protection Policy consistent with the National Minimum Guidelines. Confirm that infrastructure meets the prescribed standards on location, ventilation, sanitation, safe drinking water, age-segregated space and fire safety before children are admitted.

2. Contractual safeguards. The service agreement should require compliance with Section 11A, the National Minimum Guidelines and POCSO as an ongoing condition. It should provide for staff-verification warranties, mandatory reporting obligations, audit and inspection rights for the employer, incident-notification timelines, insurance and indemnity, and a right to suspend or terminate on a compliance failure. Contractual indemnity should be treated as a recovery mechanism, not as a transfer of the statutory duty.

3. Staff verification and training. Ensure that every person with access to children has been subjected to police verification and background checks. Provide recurring training on child protection, safe-touch protocols, first aid and, specifically, the POCSO reporting duty under Sections 19 and 21, so that staff understand that reporting is a legal command and not a discretionary internal matter.

4. A working Child Protection Policy and reporting protocol. Reduce the policy to a clear, written protocol that names who must be informed, within what time, and how the report to the Special Juvenile Police Unit or police is to be made. The protocol should state expressly that a credible disclosure by a child triggers the duty to report, that verification follows reporting, and that Section 19(7) protects good-faith reporting.

5. Physical and access controls. Maintain secure entry, attendance registers, verified authorisation for the collection of children, continuous supervision with no child left unattended, safe storage of hazardous materials, and tested fire-safety and evacuation arrangements. Consider monitored access records and, subject to privacy safeguards and parental consent, appropriate surveillance of common areas.

6. Monitoring committee and periodic audit. Constitute the crèche monitoring committee contemplated by the Guidelines, with parent, operator and management representation, and convene it on a fixed schedule. Commission periodic independent audits of infrastructure, staffing, records and child protection systems, and retain the audit reports.

7. Grievance redressal and escalation. Provide a confidential channel through which parents and employees can raise concerns, integrate it with the workplace grievance and Internal Committee mechanisms, and ensure that concerns are logged, escalated and closed with a documented outcome.

8. Documentation and evidence of oversight. Because compliance is judged substantively, keep a durable record of due diligence, verification, training, committee meetings, audits, inspections and incident handling. In a regulatory or litigation setting, this documentation is the difference between demonstrating active oversight and appearing to have delegated and forgotten.

9. Incident response and insurance. Prepare an incident-response plan that separates the legal reporting duty from any internal inquiry, secures the welfare of the affected child, preserves evidence, and manages communication. Maintain adequate insurance covering liability arising from the childcare facility.

Conclusion

The Bengaluru incident is a reminder that the crèche obligation cannot be assessed through a narrow reading of statutory compliance. Section 11A and the National Minimum Guidelines require a safe and professionally governed facility, Bahra University confirms that the standard is substantive rather than symbolic, and POCSO imposes a personal, criminally enforced reporting duty on those in charge of the institution. None of these obligations is extinguished by outsourcing.

For employers, the sensible response is to treat workplace childcare as a continuing governance function supported by due diligence, contractual discipline, staff verification, a working reporting protocol, active monitoring and careful documentation. An establishment that can show genuine and evidenced oversight is far better placed, both legally and reputationally, than one that can show only a contract and a designated room. The duty to provide a crèche is, in the end, a duty to protect the welfare and dignity of the children entrusted to it, and it is measured by how effectively that protection is delivered.

Written by Adv. K. Sri Hamsa