P. N. BHAGWATI, N. G. SHELAT, J. ( 1 ) THESE petitions challenge the vires of sec. 92 of the Factories Act 1948 in so far as it provides for imposition of a sentence of imprisonment for the offences set out in that section. Though the question of law raised in the two petitions is identical the facts giving rise to the two petitions are different and it is therefore necessary to set them out briefly before we proceed to discuss the question of law. ( 2 ) THE facts in Special Civil Application No. 686 of 1962 are as follows. The first petitioner is a partner in a firm called M/s. Zaverchand Laxmichand Brothers and Co. which carries on business as Managing Agents of Shri Yamuna Mills Ltd. Shri Yamuna Mills Ltd. carries on business inter alia of manufacturing and selling cotton textile goods and for the purpose of manufacturing cotton textile goods it has a factory in Baroda. The factory is governed by the provisions of the Factories Act 1948 and in accordance with the provisions of sec. 2 (n) of the Act the first petitioner is the occupier of the factory and he has been mentioned as such in the notice sent to the Chief Inspector of Factories under sec. 7 of the Act. The second petitioner is the manager of the factory. It appears that at about 2-30 a. m in the night of 15th November 1961 the kier in the bleaching department of the factory burst all of a sudden causing fatal injuries to a worker named Baburao Ramchandra. The Inspector of Factories who is the second respondent in the petition there- upon paid a visit to the factory and after investigating into the cause of the accident filed five criminal complaints arising out of the accident against the first petitioner as occupier and the second petitioner as manager of the factory. These cases were numbered Criminal Cases Nos. 653 to 657 of 1962 and were filed in the court of the Judicial Magistrate First Class 2 Court Baroda. The offences for which the petitioners were charged were contravention of sec. 31 (1) of the Act and Rules 61 61 61 clauses (i) and (ii) and 61 (i) (c) clauses (i) and (ii) of the Bombay Factories Rules 1950 read with sub-sec. (2) of sec. 31 and sec. The offences for which the petitioners were charged were contravention of sec. 31 (1) of the Act and Rules 61 61 61 clauses (i) and (ii) and 61 (i) (c) clauses (i) and (ii) of the Bombay Factories Rules 1950 read with sub-sec. (2) of sec. 31 and sec. 112 of the Act all the offences being punishable under sec. 92 of the Act. The petitioners thereupon preferred the present petition challen- ging the vires of sec. 92 of the Act in so far as it provides for imposition of sentence of imprisonment for the offences set out in that section. ( 3 ) THE petitioner in Special Civil Application No. 724 of 1962 is the occupier of the factory owned by Keshav Mills Co. Ltd. The factory is situate in Petlad and manufacture of cotton textile goods is being carried on in the factory. The factory is governed by the provisions of the Factories Act 1948 The petitioner is the occupier of the factory in his capacity as the Managing Agent of Keshav Mills Co. Ltd. under sec. 2 (n) of the Act. On 18th November 1961 a Junior Inspector of Factories who is the second respondent in the petition visited the factory and found that in respect of some of the workers working in the factory there was contravention of sec. 52 (1) (a) punishable under section 92 of the Act and in respect of some others there was contravention of sec. 63 punishable under sec. 92 of the Act. The Junior Inspector of Factories thereupon filed two complaints against the petitioner as the occupier of the factory- one being for the offence under sec. 52 (1) (a) punishable under sec. 92 and the other being for the offence under sec. 63 punishable under sec. 92. This led to the filing of the present petition by the petitioner challenging the vires of sec. 92 to the same extent to which its vires has been challenged in the first petition. ( 4 ) THESE petitions were admitted and rules were issued on the peti- tions. In opposition to the rules the respondents filed two affidavits one in each petition setting out Various facts and submissions justifying the validity of sec. 92. We shall refer to the relevant portions of these affidavits when we deal with the arguments urged on behalf of the petitioners in these petitions. In opposition to the rules the respondents filed two affidavits one in each petition setting out Various facts and submissions justifying the validity of sec. 92. We shall refer to the relevant portions of these affidavits when we deal with the arguments urged on behalf of the petitioners in these petitions. ( 5 ) THE main ground on which the vires of sec. 92 was challenged by Mr. I. M. Nanavati learned advocate appearing on behalf of the petitioners was that the section was violative of Article 19 (1) (g) of the Constitution. The argument was that sec. 92 imposed a liability for imprisonment on the occupier and manager of the factory for every contravention of any provision of the Act or any rule made under the Act or any order in writing given the reunder irrespective of the fact whether the occupier or manager had mens rea in respect of the contra- vention or the contravention was by him or by any other person in the factory and whether it was with or without his knowledge consent or connivance and this constituted an unreasonable restriction on the funda- mental right of the occupier under Article 19 (1) (g ). Mr. I. M. Nanavati of course conceded that the various provisions of the Act and rules made thereunder were valid restrictions on the right of the occupier to carry on his trade or business in the shape of running a factory and that sec. 92 in so far as it made a contravention of those restrictions an offence was also a valid provision but his quarrel was only with that part of the section which made the offence punishable with imprisonment for a term which may extend to three months. According to him if the section had rested merely by providing for an imposition of fine there would have been no difficulty but the section went further and provided for imposi- tion of sentence of imprisonment and this provision it was argued was excessive and transgressed the limit of reasonableness. To this contention a three-fold answer was sought to be given by the learned Advocate General on behalf of the respondents. The first answer was that once it was conceded that the restrictions contained in the various provisions of the Act and rules made under the Act were reasonable restrictions in pub- lic interest the provision in sec. To this contention a three-fold answer was sought to be given by the learned Advocate General on behalf of the respondents. The first answer was that once it was conceded that the restrictions contained in the various provisions of the Act and rules made under the Act were reasonable restrictions in pub- lic interest the provision in sec. 92 making a breach of those restrictions punishable with imprisonment could not be regarded as an interference with the right of the occupier of the factory to carry on his trade or business. This argument was based on the premise that what constituted restrictions on the exercise of the right to carry on trade or business guaranteed under Article 19 (1) (g) were the provisions embodied in the various sections of the Act and the rules made under the Act and sec. 92 which merely provided a penalty for contravention of those provisions did not by itself constitute any restriction on that fundamental right. The latter was merely a consequential provision intended to enforce the obser- vance of the restrictions. The second answer suggested by the learned Advocate General was that if the complaint of the petitioners was in respect of the provision in regard to sentence of imprisonment the chal- lenge could if at all be under Article 21 and not under Article 19 (1) (g ). He relied on the decision of the Supreme Court in Collector of Malabar v. Erimmal Ebrahim Hajee A. I. R. 1957 Supreme Court 688 where it has been laid down that if life or personal liberty is taken away lawfully under Art. 21 no question of the exercise of fundamental rights under Art. 19 (1) (a) to (e) and (g) can be raised. Lastly it was urged by him that even if the impugned provision in regard to imposition of sentence of imprisonment contained in sec. Lastly it was urged by him that even if the impugned provision in regard to imposition of sentence of imprisonment contained in sec. 92 was an integral part of the restri- ctive provisions contained in the Act and the Rules made under the Act and the validity of the restrictive provisions was therefore required to be tested in the light of the impugned provision-and this we think is the correct position in law-the challenge under Art. 19 (1) (g) must still fail in- as much as the impugned provision did not make the restrictions unreason- able by making breach of them punishable with imprisonment and the restrictive provisions including the impugned provision were therefore clearly saved by clause (6) of Art. 19. This last argument of the learned Advocate General is in our opinion well-founded and it is therefore not necessary to enter upon a consideration of the validity of the first two arguments urged by him. ( 6 ) ART. 19 (1) (g) of the Constitution guarantees to a citizen the right to practise any profession or to carry on any occupation trade or business. This right is however subject to clause (6) of Art. 19 which provides that nothing in sub-clause (g) of Art. 19 (1) shall affect the operation of any existing law in so far as it imposes or pevent the State from making any law imposing in the interests of the general public reasonable restrictions on the exercise of the right. This provision is obviously intended to achieve a proper balance between individual freedom and social control. Now what are reasonable restrictions on the exercise of the fundamental right under Art. 19 (1) (g) which can be imposed in the interests of the general public has been the subject matter of discussion in various decisions of the Supreme Court and the law in regard to the scope and ambit of this expression can now be regarded as well-settled. We need not rehearse all that has been said by the Supreme Court in these various decisions but it is sufficient to refer only to one decision of the Supreme Court namely Arunachala Nadar v. State of Madras A. I. R. 1959 Supreme Court 300. We need not rehearse all that has been said by the Supreme Court in these various decisions but it is sufficient to refer only to one decision of the Supreme Court namely Arunachala Nadar v. State of Madras A. I. R. 1959 Supreme Court 300. In this case Subba Rao J. delivering the judgment of the Court observed It has been held that in order to be reasonable a restriction must have a rational relation to the object which the legislature seeks to achieve and must not go in excess of that object (See Chintaman Rao v. State of Madhya Pradesh 1950 S. C. R. 759: A. I. R. (1951) S. C. (118 ). We must therefore apply this test in the present case and for the purpose of determining whether the restrictions imposed by the various provisions of the Act and the Rules made thereunder read in the light of sec. 92 are reasonable restrictions we must ascertain the object of the Act from the circumstances under which it was passed and its various provisions and see whether the restrictions have a rational relation to the object which the Legisla- ture seeks to achieve or whether the restrictions by reason of the provision of imposition of punishment of imprisonment enacted in sec. 92 go beyond that object ( 7 ) PRIOR to the enactment of the Factories Act 1948 the law in force in regard to regulation of labour in factories was the Factories Act 1934 but as the Statement of Objects and Reasons of the Act of 1948 shows there were various defects and weaknesses in the Act of 1934 which hampered effective administration and the provisions of the Act of 1934 regarding safety health and welfare of workers were also found to be inadequate and unsatisfactory and it was therefore that in view of the large and growing industrial activities in the country a radical overhauling of the Factories Law was necessary. The result was the present Act of 1948 which came into force from 1st April 1949. Now this Act as the preamble shows is an Act to consolidate the law regulat- ing labour in factories. The Act is a piece of social welfare legislation enacted primarily with the object of protecting workers employed in factories against industrial and occupational hazards and ensuring safe and healthy conditions of life and work. Now this Act as the preamble shows is an Act to consolidate the law regulat- ing labour in factories. The Act is a piece of social welfare legislation enacted primarily with the object of protecting workers employed in factories against industrial and occupational hazards and ensuring safe and healthy conditions of life and work. The Act makes various provi- sions in regard to health working hours holidays safety and welfare of workers working in factories and in exercise of the rule-making power conferred by the Act the Government of Bombay has made cartain rules called The Bombay Factories Rules 1950 which make further detailed provisions in regard to various matters relating to the welfare of the workers. These provisions impose upon the occupiers or managers certain obligations which include amongst others obligations to protect workers unwary as well as negligent and to secure for them employment in conditions conducive to their health and safety and also require the occupiers or managers to maintain inspection staff and to make provision for main- tenance of health cleanliness prevention of overcrowding and amenities like lighting ventilation drinking water etc. Provisions are also made for safety of workers and their welfare such as restrictions on working hours and on the employment of young persons and females and grant of annual leave with wages. Employment in a manufacturing process was at one time regarded as a matter of contract between the employer and the employee and the State was not concerned to impose any duties upon the employer. It is however now recognized that the State has a vital concern in preventing exploitation of labour and in insisting upon proper safeguards for the health and safety of workers. The Act and the rules impose numerous restrictions upon the employer to secure to workers adequate safeguards for their health and physical well-being and to ensure to them safe and healthy conditions of life and work. The imposition of such restrictions is not and cannot be regarded in the context of modern outlook or industrial relations as unreasonable and it must be said in fairness to Mr. I. M. Nanavati learned advocate appearing on behalf of the petitioners that he did not contend that these restrictions standing by themselves are unreasonable. He admitted that these restrictions are neces- sary for the protection of the interests of the workers and are enacted in public interest. I. M. Nanavati learned advocate appearing on behalf of the petitioners that he did not contend that these restrictions standing by themselves are unreasonable. He admitted that these restrictions are neces- sary for the protection of the interests of the workers and are enacted in public interest. Now clearly it cannot be disputed that if there have to be restrictions there must be a provision for penalty for breach of them for no restriction can be effective unless there is some section compelling its observance. A provision of penalty for breach of the restric- tion is therefore a noncomitant and necessary incidence of the restriction. Such a provision in regard to the restrictions imposed by the various provisions of the Act and the rules is made by the Legislature in sec. 92. Sec. 92 occurs in Chapter X which is headed Penalties and Procedure and as the marginal note indicates it is a comprehensive section providing general penalty for various offences constituted by contravention of the provisions of the Act and the rules. It runs as follows:-92 Save as is otherwise expressly provided in this Act and subject to the provisions of sec. 93 if in or in respect of any factory there is any contravention of any of the provisions of this Act or of any rules made thereunder or of any order in writing given thereunder the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both and if the contravention is continued after conviction with a further fine which may extend to seventy-five rupees for each day on which the contraven- tion is so continued. The effect of the section clearly is that in respect of every contravention of any of the provisions of the Act or the rules the occupier and manager of the factory are guilty of an offence and are punishable with imprison- ment or fine or both. Now an occupier is defined in sec. 2 (n) to mean a person who has ultimate control over the affairs of the factory and where the said affairs are entrusted to a managing agent the section says that such agent shall be deemed to be the occupier of the factory. Now an occupier is defined in sec. 2 (n) to mean a person who has ultimate control over the affairs of the factory and where the said affairs are entrusted to a managing agent the section says that such agent shall be deemed to be the occupier of the factory. It is obvious from this definition that the occupier of the factory is the person who has ultimate control over the affairs of the factory. There is no definition of Manager of a factory; but the manager of a factory would clearly be the person in charge of the actual day-to-day management of the factory. The occupier and the manager being thus persons responsible for the affairs of the factory the former being in ultimate control and the latter being in actual day-to-day charge it is obvious that the provisions of the Act and the rules which are enacted for improving and ameliorating the lot of the workers and for ensuring their welfare would be effectively enforced if the occupier and the manager are made responsible for seeing that they are properly complied with. The occupier and the manager would be the persons who can directly by supervision or inspection by improvement of business methods or by exhorting those whom they may expect to be under their control enforce the observance of the regulatory provisions contained in the Act and the rules all they are therefore made criminally responsible for contravention of those provisions. The object of making the occupier and the manager criminally liable is clearly to secure proper and effective enforcement of the provisions of the Act and the Rules. No fault can therefore be found with the provisions enacted in sec. 92 in so far as it makes the occupier and the manager of the factory guilty of an offence for contraven- tion of the provisions of the Act and the rules and as a matter of fact as already pointed out by us Mr. I M. Nanavati had no grievance on that account. Mr. I. M. Nanavati had also no quarrel with that part of sec. 92 which provided for imposition of a sentence of fine on the occupier and manager of the factory for such offence but his only complaint against the section was that it provided for imposition of a sentence of imprisonment and this in his submission made the restrictions unreasonable. I. M. Nanavati had also no quarrel with that part of sec. 92 which provided for imposition of a sentence of fine on the occupier and manager of the factory for such offence but his only complaint against the section was that it provided for imposition of a sentence of imprisonment and this in his submission made the restrictions unreasonable. We shall presently discuss this challenge to the validity of the section but before we do so it is necessary to refer to two or three other sections of the Act which were relied on by one side or the other in the course of arguments Sub-sec. (1) of sec. 97 provides that subject to the provisions of sec. 111 if any worker employed in a factory con- travenes any provision of the Act or any rules or orders made thereunder imposing any duty or liability on workers he shall be punishable with fine and sub-sec. (2) of that section says that where a worker is convicted of an offence punishable under sub-sec. (1) the occupier or manager of the factory shall not be deemed to be guilty of an offence in respect of that contravention unless it is proved that he failed to take all reasonable measures for its prevention. (2) of that section says that where a worker is convicted of an offence punishable under sub-sec. (1) the occupier or manager of the factory shall not be deemed to be guilty of an offence in respect of that contravention unless it is proved that he failed to take all reasonable measures for its prevention. Sec. 101 provides for exemption of occupier or manager from liability in certain cases in the following terms:101 Where the occupier or manager of a factory is charged with an offence punishable under this Act he shall be entitled upon complaint duly made by him and on giving to the prosecutor not less than three clear days notice in writing of his intention so to do to have any other person whom he charges as the actual offender brought before the Court at the time appointed for hearing the charge; and if after the commission of the offence has been proved the occupier or manager of the factory as the case may be proves to the satisfaction of the Court (A) that he has used due diligence to enforce the execution of this Act and (B) that the said other person committed the offence in question without his knowledge consent or connivance.-that other person shall be convicted of the offence and shall be liable to the like punishment as if he were the occupier or manager as the case may be shall be discharged from any liability under this Act in respect of such offence:provided that in seeking to prove as aforesaid. the occupier or manager of the factory as the case may be may be examined on oath and his evidence and that of any witness whom he calls in his support shall be subject to cross-examination on behalf of the person he charges as the actual offender and by the prosecutorprovided further that if the person charged as the actual offender by the occupier or manager cannot be brought before the Court at the time appointed for hearing the charge the Court shall adjourn the hearing from time to time for a period not exceeding three months and if by the end of the said period the person charged as the actual offender cannot still be brought before the Court the Court shall proceed to hear the charge against the occupier or manager and shall if the offence be proved convict the occupier or manager. This is the background against which we have to determine the question of vires of sec. 92 which is raised before us. 8 Now it is clear from what we have stated above that it was common ground between the parties that sec. 92 is a perfectly valid piece of legislation in so far as it makes the occupier and manager of a factory guilty of an offence for contravention of any of the provisions of the Act or the. rules even though the actual contravention may not be by the occupier or the manager and the contravention may have occurred without the knowledge consent or connivance of the occupier or manager and this must be so for otherwise the object and purpose of the regulatory provisions contai- ned in the Act and the rules would be defeated. There is nothing unreasonable in the occupier and the manager of the factory being made responsible for the observance of the provisions of the Act and the rules and providing that they shall be guilty of an offence if there is contra- vention of any of those provisions. Only by such provision it would be possible to effectively enforce the provisions of the Act and the rules. Only by such provision it would be possible to effectively enforce the provisions of the Act and the rules. Now once it is held that the Legislature is competent to make it an offence on the part of the occupier and manager of the factory if there is contravention of any provision of the Act or the rules and that such a provision does not make the restrictions imposed by the Act and the rules unreasonable it is difficult to see how making such offence punish- able with imprisonment can make the restrictions unreasonable. It would be open to the Legislature to decide having regard to the circumstances disclosed as to whether a provision for imposition of sentence of imprison- ment is necessary in order to secure effectively compliance with the provisions contained in the Act and the rules or whether a sentence of fine would be enough to achieve that purpose. When we look at the corresponding section of the Factories Act 1934 namely sec. 16 we find that that section provided only for imposition of a sentence of fine. But when the Legislature came to enact the Factories Act 1948 the Legislature also provided for imposition of a sentence of imprison- ment leaving it to the judicial authorities to decide which particular typo of sentence should be imposed. It is reasonable to assume that having regard to the circumstances existing at the time the Legislature found that it was necessary to introduce the penalty of imprisonment as an alternative or in addition to the sentence of fine and hence the present provision in sec. 92. As a matter of fact when we turn to the Statement of Objects and Reasons of the Factories Act 1948 we find it clearly stated in it that the experience of the working of the Act of 1934 revealed a number of defects and weaknesses which hampered effective administra- tion and in the affidavits which have been filed on behalf of the respon- dents in reply to the petitions it is specifically pointed out that the sen- tence of fine provided in the Factories Act 1934 was found not to be sufficiently deterrent and that is why the Legislature thought it fit to provide also for imposition of sentence of imprisonment. This provision permitting imposition of sentence of imprisonment cannot therefore be regarded as unreasonable. Mr. This provision permitting imposition of sentence of imprisonment cannot therefore be regarded as unreasonable. Mr. I. M. Nanavati then drew our attention to the factory legislation in England and contended that even in the English legislation the penalty that is provided is only a sentence of fine and not a sentence of impri- sonment and that the English Statute furnished the standard of reasonable- ness in this regard by which the validity of the section must be tested. We cannot accept this contention. In England the Parliament may not have thought it necessary to introduce the penalty of imprisonment in cases such as those covered by sec. 92 of our Act and the sentence of fine may have been found to be sufficient. But the conditions in India are different and no test of reasonableness can ignore the conditions under which the particular statutory provision is enacted. Moreover it is to be remembered that the penalty of imprisonment is not obligatory as soon as there is any contravention of the provisions of the Act or the rules. The question as to whether a contravention of any provision of the Act or rules should be visited with the penalty of imprisonment or the penalty of fine is left to the discretion of the judicial authority and the discretion is necessarily a judicial discretion guided by well-settled principles. There may be a variety of circumstances under which contravention of any provision of the Act or rules may take place and discretion must therefore be left to the judicial authority to decide as to what particular type of penalty is warranted on the fact of a particular case. The argument of I. M. Nanavati was that the penalty of imprisonment should have been excluded in cases where it was found that the occupier or manager had not him- self made the contravention complained of and the contravention had taken place without the knowledge consent or connivance of the occupier or Manager. But this argument ignores the fact that contravention of pro- visions of the Act or the rules may take place in an infinite variety of circumstances and it would be neither expedient nor desirable for the Legislature to lay down any hard and fast rule or straight-jacket formula comprising cases where punishment of imprisonment should be imposed or excluded. But this argument ignores the fact that contravention of pro- visions of the Act or the rules may take place in an infinite variety of circumstances and it would be neither expedient nor desirable for the Legislature to lay down any hard and fast rule or straight-jacket formula comprising cases where punishment of imprisonment should be imposed or excluded. The Legislature thought that the best way to deal with the situation would be to vest the discretion in a judicial authority to decide as to which particular type of penalty should be imposed on the facts and circumstances of the particular case and that is exactly what the Legislature has done in sec. 92. While deciding as to what type of penalty should be imposed on the occupier or the manager for contravention of any provision of the Act or rules the judicial authority would take into account the nature of the offence the gravity of the offence the culpa- bility of the accused the existence of mens rea and various other factors having a bearing on the question of penalty. We cannot therefore regard the provision for imposition of sentence of imprisonment in sec. 92 as unreasonable. ( 8 ) THIS view which we are taking is further strengthened if we turn to sec. 101. That section in terms provides that where the occupier or manager of a factory proves to the satisfaction of the Court that he has used due diligence to enforce the execution of the Act and that some other person is the actual offender and has committed the offence in question without his knowledge consent or connivance he would be discharged from any liability under the Act in respect of such offence. Where therefore the actual contravention is committed by some other person without the knowledge consent or connivance of the occupier or manager and the occupier or manager has used due diligence to enforce the execution of the Act the occupier or manager can always avail himself of the provisions of sec. 101 and claim to be discharged of the liability in respect of the contravention. This provision mitigates to a considerable extent the rigour of the absolute liability imposed by sec. 92. 101 and claim to be discharged of the liability in respect of the contravention. This provision mitigates to a considerable extent the rigour of the absolute liability imposed by sec. 92. Of course if the occupier or manager is not able to show that he has used due diligence to enforce the execution of the Act or it turns out that the actual contravention was not committed without his knowledge consent or connivance the absolute liability imposed on him by sec. 92 would remain but there can be nothing unreasonable about such a consequence. It is therefore clear that even if there were any quality of unreasonable- ness in sec. 92 standing by itself that is clearly taken away by the provision enacted in sec. 101. The only argument which Mr. I. M. Nanavati could advance in regard to the provision enacted in sec. 101 was that this provision required that the actual offender must be brought before the Court at the time appointed for hearing the charge or at the latest within a period of three months thereafter and if by the end of that period the actual offender could not be brought before the Court the Court would be bound to proceed to hear the charge against the occupier or manager and to convict him if the offence was proved. Now the scheme of sec. 101 being that the occupier or manager should be relieved from liability only if the actual offender could be brought to book the presence of the actual offender would be necessary at the time of the trial and the Legislature provided a maximum period of three months within which the actual offender should be brought before the Court for the purpose of the trial. The period of three months is a reasonable period within which the actual offender can ordinarily be brought before the Court by the processes of law. If however for some reason the actual offender cannot be brought before the Court within this period the trial of the occupier or manager cannot be allowed to be protracted indefi- nitely and in such a case the trial must proceed. This is c]early a reason. able provision and it is difficult to see how any fault can be found with it. This is c]early a reason. able provision and it is difficult to see how any fault can be found with it. Moreover as we have already pointed out above even if in any parti- cular case the actual offender cannot be brought before the Court within a Period of three months the occupier or manager who is charged can always point out to the judical authority trying him that the actual contravention was not committed by him but was committed by someone else without his knowledge consent or connivance and that circumstance would certainly be taken into account in the award of the penalty under sec. 92. ( 9 ) THE challenge to the validity of sec. 9v therefore fails and the petitions are dismissed. The rule in each petition will be discharged with costs. Petitions dismissed. .